By Eric Schweibenz
On November 18, 2016, the ITC issued an order instituting a rescission proceeding in Certain Beverage Brewing Capsules, Components Thereof, and Products Containing the Same (Inv. No. 337-TA-929).

By way of background, the underlying investigation is based on an August 4, 2014 complaint filed by Adrian Rivera and Adrian Rivera Maynez Enterprises, Inc. (collectively, “ARM”) alleging violation of Section 337 in the importation into the U.S. and sale of certain beverage brewing capsules, components thereof, and products containing the same that infringe one or more claims of U.S. Patent No. 8,720,320.  See our August 6, 2014 and September 11, 2014 posts for more details on the complaint and Notice of Investigation, respectively.  On March 17, 2016, the Commission issued its final determination and issued a limited exclusion order (“LEO”) and cease-and-desist orders (“CDOs”) directed at Eko Brands, LLC (“Eko”) and other respondents after finding such entities in default.  On June 1, 2016, ARM filed an enforcement complaint alleging that Eko and Espresso Supply, Inc. (“Espresso Supply”) have violated the LEO and CDOs.  According to the enforcement complaint, Espresso Supply recently purchased Eko.  See our June 6, 2016 post for more details regarding the enforcement complaint.  The Commission instituted a formal enforcement proceeding on July 1, 2016.

According to the order, Eko petitioned the Commission to rescind the LEO and CDOs and terminate the enforcement proceeding, arguing that “changed circumstances” warranted such relief.  ARM opposed the petition.  The Commission Investigative Staff supported the institution of a rescission proceeding but opposed termination of the enforcement proceeding.  Having examined the petition and supporting documents, the Commission determined that the petition complies with the requirements for institution of a rescission proceeding.  Accordingly, the Commission ordered that a rescission proceeding be instituted to determine whether the LEO and CDO issued against Eko should be rescinded.  The rescission proceeding is delegated to the presiding ALJ, Theodore R. Essex, for issuance of a recommended determination (“RD”).  The rescission proceeding is consolidated with the enforcement proceeding, and the ALJ is ordered to issue his RD in conjunction with his enforcement initial determination.  Eko’s request for termination of the enforcement proceeding is also delegated to ALJ Essex.