By Elissa Sanford
On April 23, 2021, ALJ Dee Lord issued the public version of Order No. 41 (dated April 2, 2021) finding a violation of section 337 in Certain Electronic Candle Products and Components Thereof (Inv. No. 337-TA-1195).

By way of background, this investigation was instituted on March 31, 2020 based on a complaint filed by L&L Candle Company LLC of Brea, California and Sotera Tschetter, Inc. of St. Paul, Minnesota (collectively “Complainants”) against 22 respondents alleging violations of section 337 by reason of infringement of U.S. Patent Nos. 8,550,660 (“the ’660 patent”), 9,366,402 (“the ’402 patent”), 9,512,971 (“the ’971 patent”), 9,523,471 (“the ’471 patent”), and 10,533,718 (“the ’718 patent”). The asserted patents and accused products relate to artificial candles that simulate a flame effect using electronic components. Many of the respondents settled, entered consent orders, or both. Remaining respondents Veraflame International, Inc. (“Veraflame”); Ningbo Mascube Import Export Company (“Ningbo Mascube”); Virtual Candles Limited (“Virtual Candles”); Yiwu Shengda Art Co., Ltd. (“Yiwu”); and Ningbo Shanhuang Electric Appliance Co. (“Ningbo Shanhuang”) were found in default (collectively “Defaulting Respondents”).

According to the order, Complainants filed a motion for summary determination of violation of section 337 and a recommended determination on remedy and bonding with respect to the Defaulting Respondents. Based on the infringement claim charts attached to the complaint and an analysis by Complainants’ expert, ALJ Lord determined that there was a violation of section 337 in the importation and/or sale of certain electronic candle products and components thereof that infringe the asserted claims of the ’402, ’971, ’471, and ’718 patents by the Defaulting Respondents.

With respect to domestic industry, the ALJ agreed with Complainants that the economic prong is satisfied by their engineering, research, design, and development activities for products practicing the asserted patents, noting that “Complainants’ domestic operations are significant and substantial, both from an economic standpoint and in the context of the exploitation of the protected technology.” ALJ Lord likewise found that the technical prong is met by Complainants domestic industry products that practice at least one claim of the asserted patents.

Regarding remedy, ALJ Lord determined that due to “a pattern of widespread infringement that is extremely difficult to detect and redress,” a limited exclusion order would not suffice to remedy the violations found in this investigation, and therefore recommended “that if a violation is found, the Commission issue a GEO.”