By Eric Schweibenz
On June 17, 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 that Respondents LELO Inc.; PHE, Inc. d/b/a Adam & Eve; Nalpac Enterprises, Ltd.; E.T.C. Inc.; Honey’s Place Inc.; and Lover’s Lane & Co. violated Section 337 in connection with the importation and sale of kinesiotherapy devices that infringe certain claims of U.S. Patent No. 7,931,605 (the ‘605 patent).  The Commission issued a general exclusion order, cease and desist orders against Respondents, and terminated the investigation.

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 the ‘605 patent and U.S. Patent No. D605,779 (the D‘779 patent).  Standard Innovation withdrew the D‘779 patent from the investigation.  An evidentiary hearing was held in August 2012.  On February 8, 2013, ALJ Pender issued an Initial Determination (“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.

On March 25, 2013, the Commission determined to review the ID in its entirety.  See our March 27, 2013 post for more details.  After examining the record, petitions for review, and the parties’ submissions, the Commission determined that Standard Innovation satisfied both the technical and economic prongs of the domestic industry requirement and that there is a violation of Section 337 with respect to claims 1-7, 9-21, 23, 24, 33-40, 42-54, 56, 57, 66-73, 75-87, 89, and 90 of the ‘605 patent.

The notice further states that the Commission determined that the appropriate remedy is both a general exclusion order prohibiting the unlicensed entry into the United States of kinesiotherapy devices and components thereof that infringe any of the above claims, and cease and desist orders prohibiting each of the remaining Respondents from importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for infringing kinesiotherapy devices.  The Commission also determined that the public interest factors enumerated in Section 337(d)(1) and (f)(1) do not preclude the issuance of a general exclusion order and the cease and desist orders.  As to the issuance of a general exclusion order, the Commission determined that there is a pattern of violation of Section 337 and that it is difficult to identify the source of the infringing products.  Finally, the Commission determined that a bond in the amount of zero percent of the entered value is required to permit temporary importation during the Presidential review period.

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