By Eric Schweibenz
On July 10, 2012, ALJ Theodore R. Essex issued the public version of the Initial Determination (“ID”) finding a violation of Section 337 in Certain Protective Cases and Components Thereof (Inv. No. 337-TA-780). 

By way of background, Otter Products, LLC (“Otter”) filed its complaint in this investigation on May 25, 2011 alleging that Griffin Technology, Inc. (“Griffin”) and numerous other parties (collectively “Defaulting Respondents”) unlawfully imported, sold for importation, and sold after importation certain protective cases and components thereof for cellular phones, mobile music players, and tablet computers that infringe various patents.  The Commission instituted this investigation on June 24, 2011.  See our June 27, 2011 post for more details.

As summarized in our July 3, 2012 post, ALJ Essex determined that there has been a violation of Section 337 by the Defaulting Respondents in this investigation with respect to U.S. Patent Nos. D600,908; D617,784; D615,536; D617,785; D634,741; D636,386; and 7,933,122; and U.S. Trademark Registrations 3,788,534; 3,788,535; 3,623,789; and 3,795,187.  In the ID, the ALJ noted that, in view of undisputed evidence, the importation requirement was satisfied and each of the Defaulting Respondents’ accused products literally infringe the asserted patents and trademarks.

The ALJ also found that there has been a violation of Section 337 by Griffin with respect to the Griffin Survivor for the iPad 2 and the Griffin Explorer for the iPhone 4, but not with respect to Griffin’s other accused cases.  We provide a summary of the additional information in the public version of the ID related to the findings directed toward Griffin.

Claim Construction, Validity, and Enforcement

Although claim construction is discussed at length in the ID, only the meaning of the term “groove” was debated, and in the end it was given its plain and ordinary meaning of “a long, narrow cut or furrow,” in contrast to the broader meaning advocated by Otter that did not limit “groove” to any particular shape.  No arguments or evidence were put forth by Griffin or the Commission Investigative Staff (“OUII”) regarding validity or enforceability, and thus, the ALJ simply held that the patents and trademarks are valid and enforceable.


The ALJ discussed infringement of the Griffin products in detail, although for each product, a finding of whether or not the “groove” limitation was met was determinative.  Two of Griffin’s products, the Griffin Survivor for iPhone 4 and Griffin Survivor for iPod Touch, were found not to infringe because the alleged “groove” was of a shape other than long and narrow.

Domestic Industry

Section 337 requires that Otter show that it satisfies both the technical and economic prongs of the domestic industry requirement with respect to each of the asserted patents and trademarks.  Although Griffin did not dispute that Otter met the technical prong, OUII asserted that there was a genuine issue of material fact with regard to Otter’s products and the “groove” feature in the claims of U.S. Patent No. 7,933,122.  However, the ALJ analyzed each product and found that the technical prong of the domestic industry requirement was met:  each product included a feature that met the limitation of “groove” as construed by the ALJ.

Otter also argued that it met the economic prong for the asserted patents and trademarks based on its “significant investment in plant and capital” and “significant employment of labor or capital.”  19 U.S.C. § 1337(a)(3)(A) and (B).  OUII agreed, arguing that Otter’s expenditures are substantial and significant, particularly in relation to its domestic facilities.  The ALJ also agreed, determining that the economic prong of the domestic industry requirement was satisfied.

Remedy and Bond

In the event that the ITC finds a violation of Section 337, ALJ Essex recommended that the ITC issue a general exclusion order based on the “widespread pattern of unauthorized use and difficulty in identifying the sources of infringing products.”  The ALJ also recommended a cease and desist order be issued against Griffin and a subset of the Defaulting Respondents and that a bond be set.