By Eric Schweibenz
On March 25, 2013, the International Trade Commission (“the Commission”) issued a notice in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).  In the notice, the Commission determined to review ALJ Thomas B. Pender’s final initial determination (“ID”) in its entirety, and to extent the target date for completion of the investigation by two weeks to June 17, 2013.

By way of background, the investigation is based on a December 2, 2011 complaint filed by Standard Innovation Corporation and Standard Innovation (US) Corp. (collectively, “Standard Innovation”) alleging violation of Section 337 in the importation into the U.S. and sale of certain kinesiotherapy devices and components thereof that infringe one or more claims of U.S. Patent Nos. 7,931,605 (the ‘605 patent) and D605,779 (the ‘779 patent).  Standard Innovation withdrew the ‘779 patent from the investigation.  An evidentiary hearing was held in August 2012.  On February 8, 2013, ALJ Pender issued the ID construing the terms of the asserted claims and finding the ‘605 patent valid and infringed, but finding no violation of Section 337 on the grounds that Standard Innovation did not satisfy the economic prong of the domestic industry requirement.  See our February 11, 2013 post for more details.

According to the notice, the Commission requested briefing from the parties on the following issues:

  • Evidentiary support in the record showing U.S. investments relating to the components that are relied on by Standard Innovation to meet the domestic industry requirement, including information relating to component providers, contractors, and subcontractors as appropriate.

  • The significance of the relative contribution of domestic inputs compared to total production (domestic and foreign) of Standard Innovation’s products alleged to practice the ‘605 patent.

  • Evidentiary support in the record regarding whether the U.S. investments alleged by Standard Innovation are significant or substantial in the context of its business, the relevant industry, and market realities.

  • How the component purchasing expenditures for U.S. components not made specifically for the domestic industry products constitute an investment in plant and equipment, employment of labor and capital, or an investment in exploitation under 19 U.S.C. § 1337(a)(3).

In addition, the Commission requested written submissions from the parties, interested government agencies, and any other interested persons on the following issues:

  • The form of remedy, if any, that should be ordered.  If a party seeks exclusion of an article from entry into the U.S. for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or are likely to do so.

  • The effect that an exclusion order and/or cease and desist orders will have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers.

  • The amount of the bond that should be imposed if a remedy is ordered.

Standard Innovation and the Commission Investigative Attorney were also requested to submit proposed remedial orders for the Commission’s consideration.  Finally, Standard Innovation was requested to supply the expiration date of the ‘605 patent and the HTSUS numbers under which the accused products are imported.