By Eric Schweibenz
On June 30, 2010, Interactive Life Forms of Austin, Texas (“ILF”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that California Exotic Novelties, Inc. (“Cal Exotic”) of Chino, California, Direct Advantage Values Enterprise, Inc. (“DAVE”) of San Francisco, California, Nanma Manufacturing Co., Limited (“NMC”) of Hong Kong, Shenzhen Shaki Industrial Co., Ltd. (“SSI”) of China, Pipedream Products, Inc. (“Pipedream”) of Chatsworth, California, Tenga Co., Ltd. of Japan, Vast Resources, Inc. d/b/a Topco Sales (“Topco”) of Chatsworth, California, Convergence Inc. of Los Angeles, California, E.T.C., Inc. d/b/a Eldorado Trading Company, Inc. of Broomfield, Colorado, Gigglesworld Corporation of Wappingers Falls, New York, Honey’s Place, Inc. of San Fernando, California, Joe Enterprises, Inc. of Phoenix, Arizona, Liberator, Inc. of Carson City, Nevada, Nalpac Enterprises, Ltd. d/b/a Nalpac, Ltd. of Ferndale, Michigan, Satistec, LLC of Las Vegas, Nevada, Universal Distributor of Santa Clarita, California, Williams Trading Co., Inc. of Pennsauken, New Jersey, W.T.F.N. Inc. d/b/a Holiday Products of Chatsworth, California, Barnaby Ltd, LLC of San Francisco, California, L.F.P., Inc. of Beverly Hills, California, LFP Internet Group, LLC of Beverly Hills, California, PHE, Inc. of Hillsborough, North Carolina, Polydigitech Inc. of Schaumburg, Illinois, Sawhorse Enterprises, Inc. of San Bruno, California, TEG, L.L.C. of Plano, Texas, and Web Merchants Inc. of Jamesburg, New Jersey (collectively, the “Proposed Respondents”) have sold for importation, imported, and/or sold within the U.S. after importation certain devices having elastomeric gel and components thereof that infringe certain claims of U.S. Patent Nos. 5,782,818 (the ‘818 patent) and 5,807,360 (the ‘360 patent) (collectively, “the Asserted Patents).

According to the complaint, the devices at issue include, masturbators, sex toys, and novelty items that have an insert formed from an elastomeric gel with an opening to accommodate a human male sex organ.  In addition, both the ‘818 patent and the ‘360 patent generally relate to devices for discreet collection of sperm from human males.

Complainants allege that each of the Proposed Respondents designs, manufactures, sells for importation, imports, and/or sells after importation infringing devices having elastomeric gel, including masturbators, sex toys, and novelty items.

As to related litigation, Complainants assert that on June 30, 2010, ILF filed an infringement suit in the U.S. District Court for the Western District of Texas alleging that Cal Exotic, DAVE, NMC, SSI, Pipedream, Tenga, and Topco infringe the Asserted Patents.

Regarding domestic industry, Complainants assert that an industry exists in the U.S. relating to ILF’s devices at issue.  In addition, ILF states that it has made at least significant investment in plant and equipment, significant employment of labor and capital and/or substantial investment in engineering and research and development with respect to the Asserted Patents.  Complainants also point to their manufacturing and production factory in Austin, Texas as evidence of significant investment in the U.S. in plant and equipment to manufacture products practicing the Asserted Patents.  Further, ILF states it has made significant investments in employment of labor and capital associated with products practicing the Asserted Patents, including the employment of over 130 people.  Finally, Complainants assert they have made substantial investment in the exploitation of products that practice the Asserted Patents, including ongoing engineering and research and development of devices protected by the Asserted Patents.

With respect to potential remedy, Complainants request that the ITC issue a general exclusion order (or, in the alternative, a limited exclusion order), a permanent exclusion order, and a permanent cease-and-desist order directed to each Proposed Respondent.