By Alec Royka

On November 30, 2021, ALJ McNamara issued the public version of his initial determination (“ID”) granting Complainant Hyperice, Inc.’s (“Hyperice”) motion for summary determination of violation of section 337 in Certain Percussive Massage Devices (Inv. No. 337-TA-1206).

By way of background, this investigation is based on a June 17, 2020 complaint filed by Hyperice alleging violations of section 337 in the unlawful importation/sale of certain percussive massage devices that infringe U.S. Patent Nos. 10,561,574 (“the ’574 patent”), D855,822, and D866,317 by 19 respondents.  Five respondents remained in the investigation and failed to respond to the complaint and notice of investigation, and were found in default:  Kinghood International Logistics Inc. (“Kinghood”), Manybo Ecommerce Ltd. (“Manybo”), Shenzhen Infein Technology Co., Ltd. (“Shenzhen Infein”),  Hong Kong Yongxu Capital Management Co., Ltd. (“Hong Kong Yongxu”), and Kula eCommerce Co., Ltd. (“Kula”) (collectively, “Defaulting Respondents”).

On May 7, 2021, Hyperice moved for a summary determination of violation of section 337 by the Defaulting Respondents and requested entry of a general exclusion order ("GEO") and 100% bond during the Presidential Review Period.  According to the ID, ALJ McNamara determined that there is a violation of section 337 with respect to the ’574 patent based on the following conclusions of law:

  • Hyperice has satisfied jurisdiction and standing requirements with respect to Defaulting Respondents Kinghood, Manybo, Shenzhen Infein, and Hong Kong Yongxu (“Infringing Defaulting Respondents”) with respect to the ’574 patent;

  • Hyperice has established importation of accused, infringing products from Defaulting Respondents Kinghood, Manybo, Shenzhen Infein, and Hong Kong Yongxu;

  • Hyperice has not established importation for Defaulting Respondent Kula’s accused product, and therefore, Hyperice has not established a violation of Section 337 by Kula;

  • The Accused Products of the Infringing Defaulting Respondents infringe claims 1-7, 14 and 15 of the ’574 patent;

  • Infringing Defaulting Respondents Kinghood’s Theradrill, Manybo’s FBF Pulse Gun, and Shenzhen’s ALI2 Massage Gun, i.e., their accused products each infringe claim 9 of the ’574 patent;

  • At least one of Hyperice’s DI products practices one or more claims of the ’574 patent;

  • Hyperice has proven that a domestic industry exists within the United States related to articles protected by the ’574 patent; and

  • The Infringing Defaulting Respondents have each violated Section 337 of the Tariff Act of 1930, as amended, by importing into the United States, selling after importation, or selling within the United States after importation certain percussive massage devices that infringe the ’574 patent.

As a result of her finding of a violation of section 337 with respect to the ’574 patent, ALJ McNamara detailed her recommended determination on remedy and bonding.  In particular, the ALJ found that in the event a violation of section 337 is found by the Commission, a GEO against all Infringing Defaulting Respondents should issue, noting that Hyperice had demonstrated a GEO is necessary because of widespread copying, potential for circumvention, and widespread use of and difficulty in identifying the sources of the infringing products.  The ALJ further noted that if the Commission does not issue a GEO, then at a minimum, a limited exclusion order directed to the Infringing Defaulting Respondents should issue.  In addition, ALJ McNamara recommended a cease-and-desist order against Kinghood because, unlike the other Infringing Defaulting Respondents, Kinghood is a domestic corporation.  Finally, the ALJ recommended that the Commission set a bond rate of 100%.