By Eric Schweibenz
On April 8, 2009, the Commission issued a Notice of Commission Final Determination in Certain Self-Cleaning Litter Boxes and Components Thereof (337-TA-625) affirming ALJ Rogers’ finding that both  Respondents Lucky Litter, L.L.C. (“Lucky Litter”) and OurPet’s Company (“OurPet’s”) violated section 337 as a result of infringement of U.S. Patent No. RE36,847 (“the ‘847 patent”).

As explained in our February 11 post, the 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.  On December 1, 2008, ALJ Rogers determined that the Respondents Lucky Litter and OurPet’s violated 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 the ‘847 patent.  Thereafter, on February 9, 2009,  the Commission decided to review ALJ Rogers’ construction of six claim terms in the ‘847 patent, findings on infringement and validity and nine questions of particular interest to the Commission.

In affirming ALJ Rogers’ findings, the Commission also (1) affirmed the construction of “comb drive,” “comb drive means,” “drive means,” and “mode selector switch . . moveable between a manual operation position … and an automatic operation position”; (2) modified the construction of “discharge position adjacent the discharge end wall”; (3) construed “coupled to” in the limitation “comb…coupled to the comb drive” as ‘coupled or connected, directly or indirectly;’” and (4) affirmed that infringed claim 33 of the ‘847 is not invalid due to anticipation or obviousness. 

Further, the Commission issued both limited exclusion orders and cease-and-desist orders against Lucky Litter and OurPet’s, found that the public interest factors do not preclude issuance of the remedial orders, and found that the bond to permit temporary importation during Presidential review should be set at 100%.

The Commission also issued a confidential opinion.  We will provide more details on this opinion after the public version is issued.