By John Presper
On February 5, 2014, the ITC issued an order and notice instituting an advisory opinion proceeding in Certain Ground Fault Circuit Interrupters and Products Containing Same (Inv. No. 337-TA-739).

By way of background, the original investigation was based on an October 8, 2010 complaint filed by Leviton Manufacturing Co., Inc. (“Leviton”) alleging violations of section 337 in the importation and/or sale of certain ground fault circuit interrupters (“GFCIs”) that infringe, among other patents, U.S. Patent No. 7,737,809 (“the ‘809 patent”).  The ITC issued cease and desist orders against numerous defaulting respondents, including Menard, Inc. (“Menard”).  The ITC also issued a general exclusion order.  Non-party Pass & Seymour, Inc. (“P&S”) had argued that the general exclusion should not reach P&S’s products, but the ITC rejected this argument.  Subsequently, on August 29, 2012, Leviton filed a complaint for an enforcement proceeding alleging, among other things, that Menard violated the cease and desist order by selling P&S GFCIs.  P&S joined the enforcement proceeding as an intervener, but the proceeding was later terminated following a settlement and licensing agreement between Leviton and P&S.

According to the Order, P&S filed a request with the ITC for an advisory opinion as to whether the importation of certain redesigned P&S GFCIs violates the ITC’s remedial orders entered in the earlier proceedings.  The ITC granted P&S’s request and instituted an advisory opinion proceeding, ordering the presiding ALJ to “provide an opinion as to whether importation of P&S’s redesigned GFCls, without authorization from Leviton, would violate the Commission's remedial orders entered in this investigation on April 27, 2012.”

Lastly, Chief ALJ Charles E. Bullock issued a notice indicating that he will be the presiding ALJ in this advisory opinion proceeding.