By John Presper and Elissa Sanford
On July 9, 2021 the ITC issued the public version of its opinion in Certain Bone Cements and Bone Cement Accessories (Inv. No. 337-TA-1175) finding no violation of section 337 by reason of misappropriation of trade secrets, false advertising, or tortious interference.

By way of background, this investigation was instituted on September 23, 2019 based on a complaint filed by Zimmer, Inc. and Zimmer US, Inc. (collectively, “Zimmer”) alleging violations of section 337 by Respondents Heraeus Medical GmbH of Wehrheim, Germany and Heraeus Medical LLC of Yardley, Pennsylvania (collectively, “Respondents”) through the importation and/or sale of certain bone cements and bone cement accessories by reason of the misappropriation of trade secrets, false advertising, and tortious interference.

On February 11, 2021 ALJ Elliot issued an initial determination (“ID”) finding no violation of section 337. Specifically, the ID found that while Zimmer owned the asserted trade secrets, Respondents did not misappropriate any trade secret or engage in false advertising. The ID also found that Respondents did not tortiously interfere with Zimmer’s contracts or prospective business relationships. See our February 12, 2021 post for more details regarding the ID.

On review, the Commission determined that asserted trade secrets TS 10 and TS 15/28 were protectable trade secrets, and that Respondents did not wrongfully disclose those trade secrets to third parties. The Commission also determined that the ID applied the correct legal standard for misappropriation evaluated based on whether the unauthorized use or disclosure was substantial given the nature of the protectable trade secret at issue. Under the “substantial use” standard, the Commission affirmed the ID’s finding that Zimmer failed to show Respondents misappropriated the trade secrets at issue, as Zimmer did not show Respondents “substantially disclosed” the protected information. The Commission also affirmed the ID’s finding that Zimmer’s forensic evidence of alleged misuse of the trade secret information did not prove misappropriation. The Commission adopted and affirmed the ID’s additional finding that Respondents independently developed their own customer targeting database rather than deriving the same from trade secret information.

Having found no violation of section 337, the Commission terminated the investigation.