By Eric Schweibenz
On December 21, 2015, the International Trade Commission (“Commission”) issued a notice determining to review-in-part and, on review, to reverse in part and to vacate in part ALJ Pender’s Initial Determination (“ID”) finding violation of Section 337 in Certain Windshield Wipers and Components Thereof (Inv. No. 337-TA-928/937).  Please further note that Oblon represents Complainants in this matter.

By way of background, the investigation is based on July 25, 2014 and October 15, 2014 complaints filed by Valeo North America, Inc. of Troy, Michigan and Delmex de Juarez S. de R.L. de C.V. of Mexico (collectively, “Valeo”) alleging violation of Section 337 by Trico Products Corporation and Trico Componentes SA de CV (collectively, “Trico”) in the importation into the U.S. and sale of certain windshield wipers and components thereof.  See our August 1, 2014, August 28, 2014, October 16, 2014, November 19, 2014, December 15, 2014, July 7, 2015, and November 25, 2015 posts for more details on this investigation.

In the ID, ALJ Pender found, among other things, that Trico violated Section 337 through the importation and sale of certain windshield wipers and components thereof that infringe Valeo’s U.S. Patent No. 7,937,798.

According to the December 21, 2015 notice:
Having examined the record in this investigation, including the ALJ's final ID, the petitions for review, and the responses thereto, the Commission has determined to review the ID in part and, on review, to take certain actions.  In particular, the Commission has determined as follows:
(1) To review the ALJ's detemiination in Order No. 36 (Jul.16, 2015) precluding arguments and evidence relating to Trico's 618 and 596 connectors on the basis that they are obsolete and are irrelevant to the present investigation, see ALJ Order No. 36 at 1, and on review, to reverse this determination and to remand the investigation to the ALJ with respect to this issue, to make findings regarding whether Trico products with 618 and 596 connectors infringe either asserted patent and to make any necessary related findings, as set forth in the accompanying Remand Order.
(2) To review the ALJ's finding that Valeo's indirect infringement claims are moot and, on review, to vacate it.  The Commission finds it unnecessary to reach the issue of whether Trico induced infringement of the '798 patent with respect to the accused products considered by the ALJ because the Commission has determined not to review the ALJ's finding that Trico directly infringes the '798 patent.
(3) To review the ALJ's finding that Valeo established quantitatively and qualitatively significant investment in plant and equipment and thus satisfies economic prong of the domestic industry requirement under subsection (A) of section 337(a)(3) and, on review, to take no position with respect to this finding.
(4) To review the final ID with respect to footnote 7 on page 17 and, on review, to modify the subject footnote by striking its second sentence.
The Commission has determined not to review the remainder of the final ID.  The Commission does not seek further briefing at this time.
In light of the remand, the ALJ shall set a new target date within thirty days of the date of this notice consistent with the Remand Order.  The current target date for this investigation is February 23, 2016.
Any briefing on reviewed and remanded issues, and on remedy, bonding, and the public interest will follow Commission consideration of the remand ID.