By Eric Schweibenz
On April 30, 2010, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 41 (dated March 3, 2010) in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686), denying Complainants The Lincoln Electric Company and Lincoln Global, Inc.’s (collectively, “Lincoln”) motion for summary determination that they satisfied the economic prong of the domestic industry requirement.  Respondents The ESAB Group, Inc. and Sidergas SpA, as well as the Commission Investigative Staff opposed Lincoln’s motion.

Lincoln relied primarily on a declaration by its president to support its motion, but ALJ Rogers determined that “the statements in the declaration describe investments and expenditures related to Lincoln’s bulk welding wire and bulk welding wire containers in general, but do not address investments and expenditures related to any specific products that are asserted to practice the patents.”

Lincoln also relied upon documents produced during discovery, namely (1) a “Form 10-K Report that Lincoln filed with the U.S. Securities and Exchange Commission…explaining that Lincoln is a large manufacturer of bulk welding wire and that Lincoln invests in research and development related to bulk welding wire,” (2) marketing documents that relate to a “new and improved Accu-Pak box,” and (3) a report relating to Lincoln’s inventory of products on or about August 2008.  ALJ Rogers determined that none of these statements or documents “demonstrate the necessary investments related to the articles alleged to practice the ‘864 patent,” and that the “claims of ‘864 patent are related to weld wire, and not packaging for weld wire.”

ALJ Rogers accordingly determined that summary determination is not appropriate because “Lincoln’s evidence is general in nature, and only addresses Lincoln’s investments with respect to bulk welding wire as a whole, “ and “there is a genuine dispute of material fact regarding whether or not Lincoln’s investment related to the Exact-Trak, Accu-Pak, or Accu-Trak products satisfies 19 U.S.C. § 1337(a)(2)-(3).”