By Barry HermanWhen asked to identify the major differences between patent litigation in the ITC and in federal district court, most practitioners would likely identify 1) the domestic industry requirement and 2) the form of relief (injunctive relief but no money damages). Another difference is that certain defenses to infringement are not available to respondents in the ITC.
In Certain Abrasive Products Made Using a Process for Making Powder Preforms, and Products Containing Same (Inv. No. 337-TA-449), the ITC determined that with respect to the offshore practice of a patented product, the defenses to infringement under 35 U.S.C. § 271(g) are not available to respondents in infringement actions before the ITC. Respondent Kinik asserted a defense to infringement under § 271(g) because even if its process were found to include all of the steps of the patent claims, it asserted that the product of those steps was “materially changed by subsequent processes” and thus placed Kinik within the exception of § 271(g)(1).
By Eric SchweibenzOn February 10, 2009, Humanscale Corporation filed a complaint requesting that the U.S. International Trade Commission commence an investigation pursuant to Section 337 of the Tariff Act of 1930, as amended.
The complaint alleges violations of Section 337 in the importation into the U.S. and/or the sale within the U.S. after importation of certain adjustable keyboard support systems and components thereof. Specifically, the complaint alleges that the “products at the heart of the proposed investigation are keyboard support systems, particularly, ergonomic computer keyboard support systems that are adjustable for minimizing an individual worker’s fatigue and improving efficiency.”
In 2008, the ITC instituted approximately 50 new section 337 investigations – more than a 30% increase from the same time period in 2007. These numbers represent an upward trend in section 337 filings that we expect to continue in the years to come.
By Eric SchweibenzOn February 9, 2009, the U.S. International Trade Commission issued a Notice determining to review in part the final Initial Determination (“ID”) issued by Administrative Law Judge Robert K. Rogers, Jr. on December 1, 2008, in the matter of Certain Self-Cleaning Litter Boxes and Components Thereof (Inv. No. 337-TA-625).
This investigation was instituted on December 28, 2007, based on the complaint of Applica Consumer Products, Inc. of Miramar, Florida and Waters Research Company of West Dundee, Illinois. The respondents are Lucky Litter, L.L.C. of Chicago, Illinois and OurPet’s Company of Fairport Harbor, Ohio.