By John Presper
On February 11, 2021, ALJ Cameron Elliot issued a notice of initial determination (“ID”) in Certain Bone Cements and Bone Cement Accessories (Inv. No. 337-TA-1175). According to the notice, the ALJ found no violation of section 337.

By way of background, this investigation was instituted on September 23, 2019 based on a complaint filed by Zimmer, Inc. and Zimmer US, Inc. (collectively, “Zimmer”) alleging violations of section 337 by Respondents Heraeus Medical GmbH of Wehrheim, Germany and Heraeus Medical LLC of Yardley, Pennsylvania (collectively, “Respondents”) through the importation and/or sale of certain bone cements and bone cement accessories by reason of the misappropriation of trade secrets, false advertising, and tortious interference.

According to the notice, ALJ Elliot determined there is no violation of section 337 based on the following conclusions of law:

  • Zimmer owns the asserted trade secrets.

  • TS 10 is a protectable trade secret.

  • TS 11 is not a protectable trade secret.

  • TS 15/28 are protectable trade secrets.

  • Respondents did not misappropriate any trade secret.

  • Respondents did not engage in false advertising.

  • Respondents did not tortiously interfere with Zimmer’s contracts or prospective business relationships.

  • Zimmer has established a domestic industry.

  • There is not and has not been a substantial injury or threat of injury to Zimmer’s domestic industry by Respondents’ actions.

A public version of the ID containing more detailed information will issue after all parties have submitted their proposed redactions to the ALJ.

UPDATE:  On February 23, 2021, ALJ Elliot issued the public version of the ID.