On December 2, 2011, Standard Innovation Corporation of Canada and Standard Innovation (US) Corp. of Wilmington, Delaware (collectively, “Standard Innovation”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that the following entities (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain kinesiotherapy devices and components thereof that infringe one or more claims of U.S. Patent Nos. 7,931,605 (the ‘605 patent) and D605,779 (the ‘779 patent):

 According to the complaint, the ‘605 patent is directed to “a sexual stimulation device worn by a woman during intercourse that includes an arm dimensioned for placement inside a vagina and an arm dimensioned for placement against a clitoral area.” The device has arms tapering down toward a connecting portion that connects the two arms, and at least one of the arms has a tear-drop shape.  The patent is also directed to the construction of the asserted devices, which include vibrators.  The ‘779 patent is a design patent directed to the ornamental design for a vibrator.

The complaint defines LELO Inc., LELOi AB, LELO, Natural Contours Europe, Momentum Management, and Evolved Novelties as “Manufacturer Respondents,” who manufacture, design, sell for importation, import, and/or sell after importation infringing kinesiotherapy devices and components thereof that use Standard Innovation’s patented technologies.  The complaint further defines Nalpac Enterprises, Ltd., E.T.C., Inc., Williams Trading Co., Inc., and Honey’s Place, Inc. as “Distributor Respondents,” who import, and/or sell after importation infringing kinesiotherapy devices and components thereof.  The remaining respondents are defined as “Retail Respondents,” who import, and/or sell after importation infringing kinesiotherapy devices and components thereof.  The complaint specifically identifies a number of allegedly infringing products associated with the various Proposed Respondents.

As to related litigation, the complaint states that Standard Innovation is contemporaneously filing a complaint in the U.S. District Court for the Southern District of Texas asserting infringement of the ‘605 patent against LELOi AB, LELO Inc., and LELO.

Regarding the technical prong of the domestic industry requirement, Standard Innovation asserts that its We-Vibe ® family of products (We-Vibe, We-Vibe II and We-Vibe 3) practices the ‘605 and ‘779 patents.  As to the economic prong, Standard Innovation points to millions of dollars in U.S. sales of We-Vibe ® products, its U.S. supply contracts, research and development activities in the U.S., warehousing of products in the U.S., employees in the U.S., and educational training, seminars, distribution, administrative activities, marketing, its U.S. webstore (accessible only in the U.S.), and its regular participation in U.S. tradeshows.

With respect to potential remedy, the complaint requests the Commission to issue a general exclusion order, in view of alleged widespread patterns of infringement by numerous unknown entities and from numerous origins, the ease of manufacturing infringing kinesiotherapy devices, and the likely ease with which new companies and brands would replace domestic companies affected by a limited exclusion order.  In the alternative, the complaint requests a limited exclusion order.  The complaint further requests a permanent exclusion order forbidding entry into the U.S. of infringing kinesiotherapy devices, and permanent cease and desist orders directed at the Proposed Respondents, their affiliates, and others acting on their behalf.

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