By Eric Schweibenz and Lisa Mandrusiak
On January 5, 2015, ALJ David P. Shaw issued Order Nos. 70 and 71 in the enforcement proceeding relating to Certain Incremental Dental Positioning Appliances And Methods Of Producing Same (Inv. No. 337-TA-562).

By way of background, the International Trade Commission ("the Commission") instituted the underlying investigation on February 9, 2006 based on Align Technology, Inc.'s ("Align") complaint of January 11, 2006.  The underlying complaint named OrthoClear, Inc., OrthoClear Holdings, Inc., and OrthoClear Pakistan Pvt, Ltd. (collectively, "OrthoClear") as Respondents.  The investigation was terminated based on the parties' joint motion, and the presiding ALJ entered a consent order, which the Commission elected not to review on November 13, 2006.

On March 1, 2012, Align filed an enforcement complaint against ClearCorrect Operating, LLC of Houston, Texas, ClearCorrect Pakistan (Private), Ltd. of Pakistan, Mr. Mudassar Rathore c/o ClearCorrect Pakistan, Mr. Waqas Wahab c/o ClearCorrect Pakistan, Mr. Nadeem Arif c/o ClearCorrect Pakistan, and Dr. Asim Waheed c/o ClearCorrect Pakistan (collectively, "ClearCorrect") for alleged violations of the consent order.  See our March 5, 2012 post for more details on the enforcement complaint.

When instituting the investigation, the Commission stated that a threshold issue was whether the accused digital datasets were within the scope of the consent order.  The ALJ determined that the digital articles were within the scope of the Consent Order, but on review, the Commission determined that the digital articles were not within the scope of the Consent Order and that the enforcement proceeding should be terminated.  See our February 26, 2013 post for more details.  Upon appeal, the Federal Circuit reversed the Commission's determination and remanded Inv. No. 337-TA-562 for further proceedings.  See our July 24, 2014 post for more details.

A separate violation proceeding (Inv. No. 337-TA-833) was instituted at approximately the same time as the enforcement proceeding, naming two of the same ClearCorrect entities.  See our March 2, 2012 post for more details on Align's complaint.  ALJ Robert K. Rogers, Jr. issued an Initial Determination ("ID") in the investigation and recommended issuing cease and desist orders directed to ClearCorrect.  See our June 24, 2013 post for more information on the ID.  After review by the Commission, both Alight and ClearCorrect appealed various aspects of the Commission's opinion to the Federal Circuit.  The appeal of Inv. No. 337-TA-833 is pending.

According to Order No. 70, ClearCorrect filed a motion to stay the recently-remanded enforcement proceeding pending appeal of Inv. No. 337-TA-833.  ALJ Shaw denied the motion, noting that the previous termination of the enforcement proceeding occurred only one business day before the scheduled hearing, and thus, the state of discovery and hearing date disfavoured a stay, as did the fact that the enforcement proceeding involves multiple issues that will not be addressed by the appeal.  ALJ Shaw also noted that continuing the stay would prejudice Align, as it will be many months before the appeal is complete.  Thus, ALJ Shaw denied the motion for stay, and simultaneously issued Order No. 71 setting a target date for the continued proceeding at 11 months following remand, i.e., October 26, 2015.