26
Aug
By John Presper and Elissa Sanford

On August 13, 2021, the Commission issued a notice of its determination to grant Complainants L&L Candle Company and Sotera Tschetter, Inc.’s (collectively, “Complainants”) motion to reopen the record, to vacate a portion of the initial determination (“ID”) regarding the domestic industry, to vacate the grant of summary determination of violation of section 337, and to remand the investigation in Certain Electronic Candle Products and Components Thereof (Inv. No. 337-TA-1195).  The Commission issued an order remanding the investigation the same day.

By way of background, this investigation was instituted on April 6, 2020 against 22 respondents alleging violations of section 337 by reason of infringement of certain claims of United States Patent Nos. 8,550,660 (“the ’660 patent”), 9,366,402 (“the ’402 patent”), 9,512,971 (“the ’971 patent”), 9,523,471 (“the ’471 patent”), and 10,533,718 (“the ’718 patent”).  The asserted patents and products at issue are artificial candles that simulate a flame effect using electronic components.  Many of the respondents settled and/or entered consent orders. Remaining respondents Veraflame International, Inc. (“Veraflame”); Ningbo Mascube Import Export Company (“Ningbo Mascube”); Virtual Candles Limited (“Virtual Candles”); Yiwu Shengda Art Co., Ltd. (“Yiwu”); and Ningbo Shanhuang Electric Appliance Co. (“Ningbo Shanhuang”) were found in default (collectively “Defaulting Respondents”).  On April 23, 2021, ALJ Dee Lord issued the public version of Order No. 41 (dated April 2, 2021) finding a violation of section 337.  See our May 12, 2021 post for more details regarding Order No. 41.

On May 19, 2021, the Commission determined on its own motion to review the ID’s finding that Complainants satisfied the economic prong of the domestic industry requirement, and sought briefing on the subject.  According to the order, the Commission vacated the ID’s finding that Complainants are entitled to summary determination with respect to the economic prong and vacated the grand of summary determination of violation of section 337.  Among other things, the Commission ordered the following:

  1. Order No. 41 is vacated with respect to the ALJ’s findings on the economic prong of the domestic industry requirement, and the issue of whether the economic prong of the domestic industry requirement is satisfied with respect to the four remaining asserted patents is remanded to the Chief ALJ to assign a presiding ALJ to issue a remand initial determination (“RID”) on this issue, including such proceedings as the presiding ALJ deems necessary to render the RID.

  1. The presiding ALJ shall issue an RID expeditiously and shall further extend the target date for completion of the investigation by ID, pursuant to 19 C.F.R. § 210.51(a)(1).

  1. The target date for completion of the investigation is extended by one month to September 13, 2021, to allow for time for the presiding ALJ to determine an appropriate further extension of the target date.

We will post the public version of the Commission's opinion when it becomes available.

UPDATE:  On September 13, 2021, the Commission issued the public version of its opinion.
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