By Eric Schweibenz
On November 6, 2009, B&R Plastics, Inc. of Denver, Colorado (“B&R”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that the following proposed respondents unlawfully import into the U.S., sell for importation, and sell within the U.S. after importation certain foldable stools, including foldable stools under various trade names such as the “Easy Fold Step Stool” which allegedly infringe the design claimed in U.S. Patent No. D460,566 (the ‘566 patent):

  • Ningbo ZhongTian Co., Ltd. of China

  • Ningbo Ningfeng Import and Export Co., Ltd of China

  • Kikkerland Design, Inc. of New York, New York

  • abc Distributing Inc. of Bannockburn, Illinois

  • Always Something Brilliant of Denver, Colorado

  • Amazon.com, Inc. of Seattle, Washington

  • Bed Bath & Beyond Inc. of Union, New Jersey

  • Buy.com Inc. of Aliso Viejo, California

  • Crate & Barrel, Inc. of Northbrook, Illinois

  • Home Depot Inc. of Atlanta, Georgia

  • The Afternoon of Omaha, Nebraska

  • The Container Store, Inc. of Coppell, Texas

  • QVC, Inc. of West Chester, Pennsylvania

According to the complaint, the “technology-at-issue relates to a unique and proprietary design for foldable stools.  B&R manufactures and sells a product using its proprietary foldable stool design under the trade name ‘EZ Foldz Folding Step Stool.’”

In the complaint, B&R alleges that “[t]he proposed [r]espondents were and are competitors of B&R with regard to foldable stools, and have been marketing, distributing, and selling foldable stools to unfairly compete with the B&R Stool ….”  B&R further alleges that the accused products are manufactured in China.

With respect to technical prong of the domestic industry requirement, B&R asserts that its product practices the asserted ‘566 patent.  Further, B&R alleges that it satisfies the economic prong of the domestic industry requirement “by virtue of B&R’s activities within the United States, including B&R’s manufacture, research and development, repair and service of its injection molded household items including foldable stools.”

In the complaint, B&R alleges that the patent-in-suit has been previously asserted in numerous actions in the U.S. District Court for the District of Colorado.

Regarding potential remedy, B&R asks that the Commission issue a permanent exclusion order and a permanent cease and desist order directed to the proposed respondents.