On February 21, 2012, the International Trade Commission (the “Commission”) issued a notice determining to review in its entirety a Final Initial Determination (“ID”) issued by Chief ALJ Charles E. Bullock on December 20, 2011 finding no violation of Section 337 in Certain Ground Fault Circuit Interrupters and Products Containing Same (Inv. No. 337-TA-739).

By way of background, the Complainant in this investigation is Leviton Manufacturing Co., Inc. (“Leviton”) alleging violation of Section 337 with respect to certain ground fault circuit interrupters and products containing the same which infringe certain claims of U.S. Patent Nos. 7,463,124 (the ‘124 patent), 7,737,809 (the ‘809 patent), and 7,764,151 (the ‘151 patent). Although the Notice of Investigation named numerous respondents, several were found in default or were terminated due to settlement, consent orders, or withdrawn allegations.  The seven remaining respondents are Zhejiang Trimone Electric Science & Technology Co. Ltd. (“Trimone”), Fujian Hongan Electric Co, Ltd. (“Hongan”), TDE, Inc. (“TDE”), Shanghai ELE Manufacturing Corp., Orbit Industries, Inc., American Electric Depot Inc., and Shanghai Jia AO Electrical Co.

According to the notice, ALJ Bullock’s ID on December 20, 2011 found no violation of Section 337 on the grounds that the Leviton had not sufficiently shown that a domestic industry exists with respect to the three asserted patents and/or articles protected by those patents.  On January 6, 2012, Leviton, the Commission investigative attorney, and a group of respondents consisting of Trimone, Hongan, and TDE filed petitions for review of the ID.

After examining the record of the investigation, the Commission determined to review the ID in its entirety. However, the Commission requested briefing only with respect to the following five issues, in addition to issues on remedy, the public interest, and bonding:

  1. Whether the complainant has carried its burden to show the existence of a domestic industry under 19 U.S.C. § 1337(a)(3).

  2. Whether the ID implicitly applied a different claim construction when analyzing the validity of the ‘124 and ‘151 patents than was applied when analyzing infringement of those patents.

  3. Whether the ID relied upon unclaimed features of the disclosed inventions when analyzing the validity of the ‘124 and ‘151 patents.

  4. Whether the ID considered all of respondent’s arguments concerning the validity of the ‘809 patent.

  5. Whether the following asserted patent claims (a) have been properly construed, (b) protect articles for which there is an industry in the United States, (c) are infringed by the accused articles, and (d) have not been shown to be invalid: claim 7 of the ‘124 patent, claim 4 of the ‘151 patent, and claims 1l and 43 of the ‘809 patent.

Written submissions are due by March 2, 2012, with reply submissions due by March 9, 2012.