16
Mar
By John Presper and Alec Royka
On March 15, 2021, the ITC issued a Notice of Investigation in Certain Apparatus and Methods of Operating Containers (Inv. No. 337-TA-1255).

This investigation is based on a January 28, 2021 complaint filed by Draft Top, LLC (“Draft Top”) of Long Branch, New Jersey. According to the notice, the Commission has identified Mintiml of China; KKS Enterprises Co., Ltd. of China; Kingskong Enterprises Co., Ltd. of China; Du Zuojun of China; WN Shipping USA, Inc. of Inwood, New York; Shuje Wei of Pomona, California; Express Cargo Forward, Ltd. of Los Angeles, California; Tofba International, Inc. of Hawthorne, California; and Hou Wenzheng of Hebron, Kentucky as Respondents in this matter. The Office of Unfair Import Investigations will participate as a party in the investigation. Chief ALJ Charles E. Bullock issued a notice indicating that he will preside in this investigation.

The complaint alleges that Respondents unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain apparatus and methods of opening containers that are intentionally and willfully designed to be used, and are used, in a manner that infringes claim 12 of U.S. Patent No. 10,519,016 (“the ’016 patent”). According to the complaint, the ’016 patent relates to a device which allows for quick and easy removal of the top of a can in a way that leaves the top edges smooth to the touch and not dangerous. In particular, the ’016 patent relates to a device with a plurality of arms coupled to blades that engage the inner circumferential edge of a container by folding the edges inward. The blades and arms are coupled to a lever and rotate outward when the lever is compressed. The device permits the user to safely remove the top of the can with both ease and efficiency with no burrs or sharp edges that could hurt or cut the user.

Draft Top alleges that Respondents make devices for importation and sale in the U.S. that are specifically made for use in employing the patented methods of the ’016 patent. Draft Top alleges that consumers buy Respondents devices for the specific purpose of using them to open cans and other containers in the manner taught by the ’016 patent. Draft Top also alleges that Respondents’ devices are imported in three primary methods: 1) sale on the website of the manufacturer; 2) sale on internet platforms like Amazon, Etsy, eBay, and the like; and/or 3) sent directly to the purchaser through freight forwarders. Draft Top asserts that in many instances, the imported devices, sold on internet platforms, have no identification markings on them, nor indicate on them the source of the manufacturer in China.

Regarding domestic industry, Draft Top alleges that a domestic industry exists in the U.S. with respect to the articles and methods protected by the ’016 patent because of (A) significant investment in plant and equipment; (B) significant employment of labor or capital; or (C) substantial investment in its exploitation, including engineering, research and development, or licensing. Specifically, Draft Top points out that its can-opening device is manufactured by Daystar Manufacturing in Hurlock, Maryland, and that all of Daystar’s suppliers are companies located in the U.S. Draft Top also points to investments of “over $65,000.00 in new machinery since 2020 for hardware, jigging and tooling,” “approximately $32,000.00 on pin machines,” and “[a]pproximately $100,000 … spent in direct development costs for the ‘Draft Top’ apparatus/device” in the U.S.

With respect to the potential remedy, Draft Top requests that the Commission issue a general exclusion order and cease-and-desist orders directed to Respondents.
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