By John Presper
On November 29, 2012, the International Trade Commission (“the Commission”) issued a notice in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).  In the notice, the Commission determined to review in part ALJ Robert K. Rogers, Jr’s initial determination (“ID”) finding no violation of Section 337.

By way of background, the investigation is based on a complaint filed by Kaneka Corporation (“Kaneka”) alleging violation of Section 337 in the importation into the U.S. and sale of certain coenzyme Q10 products made by certain processes that infringe one or more claims of U.S. Patent No. 7,910,340 (“the ‘340 patent”).  The Respondents are Zhejiang Medicine Co., Ltd., ZMC-USA, LLC, Xiamen Kingdomway Group Co., Pacific Rainbow International Inc., Mitsubishi Gas Chemical Co., Inc., Mitsubishi Gas Chemical America, Maypro Industries, Inc., and Shenzhou Biology & Technology Co., Ltd. (collectively, “Respondents”).  See our July 15, 2011 post for more details.

As summarized in our September 28, 2012 post, ALJ Rogers determined there was no violation of Section 337 by the Respondents with respect to the ‘340 patent.  More specifically, ALJ Rogers found that: (1) none of the Respondents’ accused products infringe the ‘340 patent; (2) an industry does not exist in the U.S. that exploits the ‘340 patent; and (3) the asserted claims of the ‘340 patent are not invalid.

After reviewing the ID and petitions for review filed by Kaneka, the Respondents, and the Commission Investigative Staff, the Commission determined to review and affirm (a) the ALJ’s finding that the Mitsubishi Gas Chemical respondents do not satisfy the 70% mole limitation of the asserted claims with their products, and (b) the claim construction of “inert gas atmosphere” as used in the ‘340 patent.  The Commission also determined to review and vacate the finding that the asserted claims are not invalid as containing new matter.  The Commission determined not to review the remainder of the ID, and the investigation is terminated.