By Eric Schweibenz and John Presper
On November 25, 2014, the Federal Circuit issued a non-precedential order granting the International Trade Commission's (the "Commission") motion to dismiss the appeal as premature in A&J Manufacturing, LLC et al. v. Int'l Trade Comm'n (2014-1742).  This was an appeal by Complainants A&J Manufacturing, LLC and A&J Manufacturing, Inc. (collectively, "A&J") from the Commission's decision affirming-in-part the ALJ's Initial Determination ("ID") of non-infringement of certain products in Certain Multiple Mode Outdoor Grills and Parts Thereof (Inv. No. 337-TA-895).

By way of background, A&J filed a complaint in August 2013 alleging violation of Section 337 by over 20 proposed respondents in the importation and sale of certain multiple mode outdoor grills and parts thereof that infringe one or more claims of U.S. Patent Nos. 8,381,712 ("the '712 patent"), D660,646 and D662,773.  See our August 22, 2013 and September 23, 2013 posts for more details on the complaint and notice of investigation, respectively.

On April 17, 2014, the ALJ issued an ID granting-in-part Respondents Char-Broil, LLC; Zhejiang Fudeer Electric Appliance Co., Ltd.; Rankam Metal Products Manufactory Limited, USA; Outdoor Leisure Products, Inc.; Dongguan Kingsun Enterprises Co., Ltd.; Tractor Supply Co.; and Chant Kitchen Equipment (HK) Ltd.'s (collectively, "Respondents") motion for summary determination that seven of the accused products do not infringe the asserted claims of the '712 patent, and that there was a question of fact as to the remaining product.  See our May 6, 2014 post for more details on the ID.

On June 24, 2014, the Commission issued a notice of its determination to affirm the ALJ's findings of non-infringement of claims 1 and 17 of the '712 patent with respect to four of the accused products, but vacated all of the ALJ's findings with respect to claim 10 of the '712 patent, concluding that the "openable cover means" limitations recited in the claim were means-plus-function limitations.  The Commission directed the ALJ to consider whether the products infringed under its understanding of the "openable cover means" limitations.  See our June 27, 2014 post for more details on the Commission's decision.

According to the opinion, A&J appealed the Commission's June 24, 2014 order, asserting that a "final determination" as to claims 1 and 17 of the '712 patent was made for purposes of appeal under Section 337(c).  The Federal Circuit granted the Commission's motion to dismiss the appeal has premature, however, finding that "it is clear that the Commission has not yet issued a 'final determination' as to whether to exclude the articles from entry under the '712 patent" since "the ALJ has been directed to assess infringement of all of the accused products that were the subject of the Commission's order, which may or may not lead to a future exclusion order."  In contrast to Broadcom Corp. v. Int'l Trade Comm'n, 542 F.3d 894, 896 (Fed. Cir. 2008), where the court had allowed for an immediate appeal from the Commission's determination that left "no provision for Presidential review, or for other administrative proceedings, following a determination that does not lead to an exclusion order," the court noted here that "ongoing proceedings concerning whether the articles infringe the '712 patent under a means-plus-function construction" remain in the investigation such that "the issue of whether Appellants can obtain an exclusion order is still before the Commission."  Thus, the Federal Circuit ruled that "there has been no final determination under § 1337(c) that can be appealed to this court at this time."