By Eric Schweibenz
On September 13, 2011, the International Trade Commission (the “Commission”) issued a notice of issuance of a general exclusion order for U.S. Patent No. 5,470,257 in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650).

By way of background, the Complainant in this investigation is John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) and the Respondents are Fu Ching Technical Industry Co. Ltd., Gem Electronics, Inc. (collectively, the “Active Respondents”), Hanjiang Fei Yu Electronics Equipment Factory, Zhongguang Electronics, Yangzhou Zhongguang Electronics Co., Ltd., and Yangzhou Zhongguang Foreign Trade Co., Ltd. (collectively, the “Defaulting Respondents”).  The investigation was instituted on May 30, 2008.  On October 13, 2009, ALJ Gildea issued his Initial Determination (“ID”) finding, inter alia, that the Defaulting Respondents were in violation of Section 337 by reason of infringement of U.S. Patent Nos. 5,470,257, 6,558,194, D519,076, and D440,539 (the ‘539 patent).  See our November 10, 2009 post for more details.

Upon reviewing the ID, the ITC adopted a different construction of claim 1’s “engagement means” limitation than ALJ Gildea, concluded that PPC’s CMP connector did not practice this limitation, and thus held that PPC had not satisfied the technical prong of the domestic industry requirement for the ‘257 patent.

On appeal, the parties agreed that the “engagement means” limitation is a means-plus-function limitation, and agreed upon the function, but disagreed with respect to the corresponding structure in the specification.  The Federal Circuit agreed with PPC (and with ALJ Gildea) that the “engagement means” limitation “should be construed to include only what is necessary to perform the function, and not import structures that, though present in the preferred embodiment, are not actually necessary.”  Accordingly, the Federal Circuit found that PPC satisfied the technical prong of the domestic industry requirement, removing “the final bar to finding violation of  § 337 as to the defaulting respondents.”  It entered judgment of a violation by the Defaulting Respondents, and remanded for further proceedings consistent with its opinion.  The Federal Circuit declined PPC’s invitation to direct entry of a general exclusion order, finding that this would be premature, “at least because the ITC has not made findings on the proper remedy and bonding.”  See our April 28, 2011 post for more details.  The Federal Circuit’s mandate issued on June 30, 2011.

On July 18, 2011, the Commission issued a notice requesting comments from the parties regarding how to proceed with the investigation following the remand from the Federal Circuit.  On July 29, 2011, PPC filed a response to the Commission’s notice.  On August 1, 2011, the Commission investigative attorney filed a response to the Commission’s notice.

According to the September 13, 2011 notice, “the Commission has determined that the appropriate form of remedy is a general exclusion order…[that] prohibits the unlicensed entry of coaxial cable connectors and components thereof and products containing the same that infringe claim 1 and/or 5 of the ‘257 patent.”  The Commission further determined that the public interest factors set forth in 19 U.S.C. § 1337(d) do not preclude issuance of the general exclusion order.  Finally, the Commission determined that amount of bond during the Presidential review period shall be in the amount of thirteen cents per coaxial connector of the Defaulting Respondents.  A bond in the amount of zero is required for any other coaxial cable connector or component thereof or product containing the same covered by the general exclusion order.