By Eric Schweibenz
On March 17, 2015, ALJ David P. Shaw issued Order No. 75 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.

Furthermore, 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 the Order, Align and ClearCorrect filed a Joint Motion to Stay All Remaining Dates in the Procedural Schedule Pending the Federal Circuit's Opinion.  Specifically, the parties requested that all remaining dates in the procedural schedule be stayed pending the Federal Circuit appeal of Inv. No. 337-TA-833.  The parties argued that all five factors enumerated in Certain Semiconductor Chips weighed in favor of a stay of the proceeding.

As an initial matter, ALJ Shaw noted that the requested relief was similar to the relief previously requested by ClearCorrect, which ALJ Shaw denied in Order No. 70.  Furthermore, ALJ Shaw noted that Align opposed the previously motion to stay.  ALJ Shaw determined that "it is evident to the administrative law judge that Align's switch in position regarding a stay of this proceeding is motivated in part by the discovery produced by ClearCorrect."  Regarding the length of the parties proposed stay, ALJ Shaw noted that pending motion to stay would extended the target date of the proceeding in excess of 22 months under the most conservative estimates.  ALJ Shaw determined that the parties failed to provide good cause for such a lengthy stay.  Accordingly, ALJ Shaw denied the parties' motion to stay.