By John Presper

On December 16, 2021, the ITC issued a notice of issuance of a general exclusion order (“GEO”) and cease-and-desist order (“CDO”) in Certain Percussive Massage Devices (Inv. No. 337-TA-1206).

By way of background, this investigation was based on a June 17, 2020 complaint filed by Hyperice, Inc. (“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 GEO.  On August 20, 2021, ALJ MaryJoan McNamara issued an initial determination (“ID”) finding a violation of section 337 with respect to the ’574 patent, and recommended issuance of a GEO and a CDO against Kinghood, and setting a 100% bond.  See our December 2, 2021 post for more details regarding the ID.

According to the notice, the Commission determined to review the ID in part and requested briefing on whether Hyperice satisfied the economic prong of the domestic industry requirement with respect to the ’574 patent, and on remedy, the public interest, and bonding.  Based on the record, the Commission affirmed the ID’s finding that Hyperice satisfied the economic prong of domestic industry and thus that a violation of section 337 occurred, and determined that the appropriate remedy is: (1) a GEO prohibiting the unlicensed importation of therapeutic handheld percussive massage devices for applying percussive massage to a person’s body that infringe one or more of claims 1-7, 9, 14, and 15 of the ’574 patent; and (2) a CDO directed to Kinghood.  The Commission also determined that the bond during the Presidential Review period will be 100.  The notice further stated that Commissioners Karpel and Schmidtlein would issue CDOs directed to respondents Kinghood, Manybo, Shenzhen Infein, Kula, and Hong Kong Yongxu pursuant to 19 U.S.C. 1337(g)(1).

We will post the Commission’s opinion when it becomes available.

UPDATE:  The Commission issued the public version of its opinion on January 4, 2022.