27
Dec
By John Presper and Alec Royka

On December 13, 2021, ALJ MaryJoan McNamara issued the public version of Order No. 33 (Part I, Part II, Part III) granting-in-part Complainant Skull Shaver, LLC’s (“Skull Shaver”) motion for summary determination on violations of section 337 in Certain Electric Shavers and Components and Accessories Thereof (Inv. No. 337-TA-1230).

By way of background, this investigation is based on an October 13, 2020 complaint filed by Skull Shaver alleging violations of section 337 based on the importation and/or sale of certain electric shavers and components and accessories thereof by 11 respondents that infringe U.S. Patent No. 8,726,528 (“the ’528 patent”) and U.S. Design Patent No. D672,504 (“the ’504 patent”).  The following respondents have been found in default:  Suzhou Kaidiya Garments Trading Co., Ltd.; Yiwu City Qiaoyu Trading Co., Ltd.; Wenzhou Wending Electric Appliance Co., Ltd.; Shenzhen Aiweilai Trading Co., Ltd.; Shenzhen Junmao International Technology Co., Ltd.; Shenzhen Wantong Information Technology Co., Ltd.; Yiwu Xingye Network Technology Co., Ltd.; and Bald Shaver Inc. (collectively, “Defaulting Respondents”). On May 26, 2021, Skull Shaver filed a motion for summary determination of violation by the Defaulting Respondents and requested entry of a limited exclusion order (“LEO”) directed to each Defaulting Respondent, a cease-and-desist order (“CDO”) directed to each Defaulting Respondent except Bald Shaver Inc., a general exclusion order (“GEO”), and a 161% bond rate.  According to the order, ALJ McNamara granted-in-part Skull Shaver’s motion for summary determination based on the following conclusions of fact and law:

  • The asserted patents are valid and enforceable;

  • Skull Shaver has proven under Section 337(a)(1)(B)(i) that each of the Defaulting Respondents have imported, sold for importation, or sold within the United States after importation, at least one item each of an infringing product or article;

  • Skull Shaver has satisfied the requirements for subject matter jurisdiction because Skull Shaver filed a complaint alleging that the Defaulting Respondents violation 19 U.S.C. § 1337(a)(1)(B);

  • Personal jurisdiction is not required so long as the products are being imported and Skull Shaver has proven that the Defaulting Respondents’ accused products have been imported into the United States, and by defaulting, the Defaulting Respondents have waived their right to contest that in personam jurisdiction exists;

  • Skull Shaver has satisfied the requirements for in rem jurisdiction pursuant to Section 337(a)(1)(B) which applies to the “[t]he importation into the United States, the sale for importation, or the sale within the United States after importation . . . of articles that infringe a valid and enforceable United States patent,” because Skull Shaver has proven that the Defaulting Respondents’ accused products have been imported into the United States;

  • Skull Shaver has proven infringement of the ’528 patent and the ’504 patent by Respondents Yiwu Xingye and Yiwu City, by a preponderance of the evidence;

  • Skull Shaver has proven that Respondents Yiwu Xingye and Yiwu City’s accused products directly infringe claims 1-3 of the ’528 patent and the ’504 patent;

  • Skull Shaver has proven that at least one of its domestic industry products practice the ’504 patent and at least one claim of the ’528 patent;

  • Skull Shaver has proven that it satisfies the technical prong of the domestic industry requirement; and

  • Skull Shaver has proven that it satisfies the economic prong of the domestic industry requirement under 19 U.S.C. § 1337(a)(3)(B).

ALJ McNamara recommended that in the event a violation of section 337 is found by the Commission, a GEO should issue because Skull Shaver had demonstrated that a GEO is necessary (1) to prevent circumvention of a LEO; (2) because Skull Shaver had provided evidence of a pattern of violation of its patents, including from unnamed respondents; and (3) because Skull Shaver had provided evidence of the difficulty in identifying all sources of infringing products.  The ALJ also found a GEO to be in the public interest.  Further, ALJ McNamara stated that a carve-out should be included in the GEO to exempt terminated respondents Benepuri and Nukun’s accused products.  In addition, the ALJ recommended issuance of LEOs directed to respondents Yiwu Xingye and Yiwu City.  Moreover, ALJ McNamara recommended that CDOs issue against Yiwu Xingye and Yiwu City issue because Skull Shaver presented evidence that these respondents maintain a commercially significant inventory of accused products in the United States.  Finally, the ALJ recommended a bond rate of 100%, rejecting Skull Shaver’s requested 161% bond rate because complete pricing information was not available.
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