By John Presper
Further to our February 5, 2021 post, the Commission issued the public version of its opinion on remedy, public interest, and bonding in Certain Foldable Reusable Drinking Straws and Components and Accessories Thereof (Inv. No. 337-TA-1183) on February 10, 2021.

According to the opinion, the Commission determined that the appropriate form of relief is a general exclusion order (“GEO”) prohibiting the unlicensed importation of foldable reusable drinking straws and components and accessories thereof that infringe claims 1-12 and 14-17 of U.S. Patent No. 10,123,641 ("the ’641 patent"). The articles subject to the GEO are "individual foldable reusable drinking straws and components thereof, cases used to store the foldable reusable drinking straws, and tools used for cleaning the foldable reusable drinking straws."

Specifically, the Commission found that there is a pattern of violation of section 337 and a difficulty identifying the source of infringing products.  For example, the accused products are nearly indistinguishable in design, and the packaging associated with those products is identical and incorporate Complainant The Final Co. LLC's ("Final") own product imagery without authorization.  In addition, the Commission found there are likely many other instances of unauthorized use based on evidence showing that Final made thousands of take-down requests of various online marketplaces.  The evidence presented by Final also established that it is difficult to identify the source of infringing products due to “the natural anonymity of online marketplaces and the simplicity and portability of the tooling equipment needed to create these products.” The Commission also cited evidence that the shipping or supplier address for many of the imported products received by Final’s counsel were “intentionally or unintentionally illegible, confusing, contradictory, and [are] often incomplete return addresses and, in some instances, no return addresses at all . . . .”

Further, the Commission determined that a GEO is necessary to prevent circumvention of an exclusion order limited to products of named persons.  For example, the evidence showed that the small size and portability of the products covered by the '641 patent makes circumvention of specific types of enforcement, such as a limited exclusion order, easy and inexpensive. In addition, “the ability of foreign distributors to sell directly to United States customers via the Internet makes it possible for myriad fly-by-night entities to import infringing products into the United States.”

The Commission determined that the public interest factors do not preclude issuance of the GEO, and that the bond during the Presidential review period be set at 100% of the entered value of the imported articles subject to the GEO.