By Eric Schweibenz
On February 9, 2009, the U.S. International Trade Commission issued a Notice determining to review in part the final Initial Determination (“ID”) issued by Administrative Law Judge Robert K. Rogers, Jr. on December 1, 2008, in the matter of Certain Self-Cleaning Litter Boxes and Components Thereof (Inv. No. 337-TA-625).

This investigation was instituted on December 28, 2007, based on the complaint of Applica Consumer Products, Inc. of Miramar, Florida and Waters Research Company of West Dundee, Illinois.  The respondents are Lucky Litter, L.L.C. of Chicago, Illinois and OurPet’s Company of Fairport Harbor, Ohio.

On December 1, 2008, ALJ Rogers issued his ID, finding a violation of section 337 based on the importation, sale for importation, or sale after importation of certain self-cleaning litter boxes and components thereof by reason of infringement of claim 33 of U.S. Patent No. RE36,847.  The private parties and the Commission Investigative Staff each filed petitions for review of the ID on December 16, 2008 and responses on December 24, 2008.  On December 23, 2008, Complainants filed a motion to strike a declaration submitted with Respondent Lucky Litter’s petition for review, to which Lucky Litter and the Commission Investigative Staff filed oppositions on January 5, 2009.

After examining the ID, the petitions for review, and the responses to the petitions for review, the Commission decided to review ALJ Rogers’ construction of six claim terms in the ‘847 patent, as well as ALJ Rogers’ infringement and validity findings.  In addition, the Notice requests briefing on nine questions of particular interest to the Commission.

The Commission also granted Complainants’ motion to strike on the basis that the declaration and its exhibits were not part of the evidentiary record in the investigation.

The parties’ briefs to the Commission are due by February 20, 2009, with reply submissions due by February 27, 2009.