By Chad Gorka
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Jun
25
Section 337 of the Tariff Act of 1930, codified at 19 U.S.C. § 1337, authorizes the ITC to declare unlawful the “importation into the United States, the sale for importation, or the sale within the United States after importation. . . of articles that - (i) infringe a valid and enforceable United States patent . . . ; or (ii) are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent.”  Actions under this statute only require the ITC to have in rem jurisdiction over the imported articles at issue.  Unlike the personal jurisdiction requirement to bring an infringement case in a U.S. district court, the ITC does not need personal jurisdiction over any party. 

The explicit requirement in section 337 is often referred to as the importation requirement.  In the ITC, a complainant must establish that infringing articles have been, or imminently will be, imported into the United States in order to prevail.  In contrast, establishing importation is not required when initiating a patent infringement case in a U.S. district court.  Proving importation in a section 337 proceeding is not typically arduous.  Parties often stipulate to this element while, in other cases, importation is decided by the ITC on summary determination. 


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By Eric Schweibenz
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Jun
24
Further to our June 18 post, ALJ Charles E. Bullock issued Order No. 2 on June 23, 2009.  In the Order, ALJ Bullock issued notice of his ground rules, set the target date for the investigation, and set a date for submission of discovery statements. 

Specifically, ALJ Bullock set October 25, 2010 as the target date for completion of the investigation (which is 16 months after institution of the investigation).  ALJ Bullock further indicated in the Order that the evidentiary hearing in this matter will start on January 11, 2010.


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By Barry Herman
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Jun
23
On June 22, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 20 in Certain Non-Shellfish Derived Glucosamine and Products Containing Same (337-TA-668).  In the Order, ALJ Rogers denied respondent Nantong Foreign Medicines & Health Product Co., Ltd.’s (NFT) motion for summary determination of invalidity.

According to the Order, complainant Cargill, Inc. asserts that NFT infringes claims 1-10 of U.S. Patent No. 7,049,433 (the ‘433 patent), which are directed to a method of making glucosamine.  Claim 1 is an independent claim, and claims 2-10 depend from claim 1.


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By Eric Schweibenz
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Jun
22
On June 19, 2009, the International Trade Commission issued a notice determining not to review the April 17, 2007 Enforcement Initial Determination (“ED”) issued by Chief Administrative Law Judge Paul J. Luckern in Certain Ink Cartridges and Components Thereof (337-TA-565).

As explained in our April 21 post, ALJ Luckern determined that enforcement respondents Ninestar Technology Company Ltd., Ninestar Technology Co., Ltd. and Town Sky, Incorporated violated the orders issued at the conclusion of Investigation No. 337-TA-565.  ALJ Luckern further determined that Mipo International, Mipo America, Ribbon Tree USA, and Apex Distributing Inc. sold compatible and remanufactured cartridges that were “covered products” under the cease and desist order issued by the Commission.  ALJ Luckern also recommended that the Commission impose civil penalties for such violations.


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By Eric Schweibenz
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Jun
18
On June 17, 2009, the U.S. International Trade Commission issued a press release announcing that it voted to institute an investigation of Certain Products Advertised as Containing Creatine Ethyl Ester (337-TA-679).

The investigation is based on the May 20, 2009 complaint filed by UNeMed Corporation (“UNeMed”) of Omaha, Nebraska.  As we explained in our May 20 post, the complaint alleges violations of section 337 based on the importation into the United States, the sale for importation, and the sale within the United States of certain products advertised as containing creatine ethyl ester by reason of false advertising in violation of Section 43(a) of the Lanham Act and the Nebraska Uniform Deceptive Trade Practices Act, the threat or effect of which is to destroy or substantially injure an industry in the United States.


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