By Eric Schweibenz and Lisa Mandrusiak
On October 9, 2014, ALJ David P. Shaw issued the public version of his Recommended Determination ("RD") regarding remedy and bond in Certain Multiple Mode Outdoor Grills and Parts Thereof (Inv. No. 337-TA-895).

By way of background, this investigation is based on a complaint filed by A&J Manufacturing, LLC and A&J Manufacturing, Inc. (collectively, "A&J") alleging violation of Section 337 by over 20 proposed respondents in the importation and sale of certain multiple mode outdoor grills and parts thereof that infringe one or more claims of U.S. Patent Nos. 8,381,712, D660,646 and D662,773.  See our August 22, 2013 and September 23, 2013 posts for more details on the complaint and notice of investigation, respectively.

As summarized in our October 2, 2014 post, ALJ Shaw "determined that a violation of [S]ection 337 has occurred with respect to some but not all respondents because certain accused products infringe at least one asserted claim of U.S. Patent No. 8,381,712, while certain accused products do not infringe any asserted claim."  We now provide details of ALJ Shaw's recommendations on remedy and bonding.

According to the RD, A&J argued that a general exclusion order is necessary to prevent circumvention of any limited exclusion order, and that it is difficult to identify the source of infringing products. Respondents and the Commission Investigative Staff ("OUII") both argued that a general exclusion order is not appropriate in this investigation.  ALJ Shaw determined that a general exclusion order was not warranted in this case, noting there is no evidence that any respondent would be likely to circumvent any remedial order, and that since A&J was able to identify the manufacturers of the accused grills in the investigation, they did not prove that it is challenging to identify the source of infringing products.  However, the ALJ did recommend that limited exclusion orders be issued for at least some respondents.

Agreeing with A&J and OUII, ALJ Shaw determined that four respondents maintain commercially significant inventories of infringing products, and thus recommended that cease and desist orders be issued for those respondents.

All parties agreed that, if a bond were imposed, neither price differential nor royalty rate would be appropriate means for determining the amount, and A&J argued that lost profits should be used to calculate the bond.  Both respondents and OUII argued that no bond should be imposed, and ALJ Shaw agreed, recommending that no bond be imposed during the Presidential review period.