06
Jan
By John Presper

On December 30, 2021, Chief ALJ Charles E. Bullock issued the public version (Part I, Part II, Part III, Part IV) of his October 28, 2021 initial determination (“ID”) finding no violation of section 337 in Certain Artificial Eyelash Extension Systems, Products, and Components Thereof (Inv. No. 337-TA-1226).

By way of background, this investigation was instituted based on a complaint by Lashify, Inc. (“Lashify”) alleging violations of section 337 by KISS Nail Products, Inc. (“KISS”); Ulta Beauty, Inc; CVS Health Corporation; Walmart, Inc. (“Walmart”); Qingdao Hollyren Cosmetics Co., Ltd. d/b/a Hollyren (“Hollyren”); Qingdao Xizi International Trading Co., Ltd. d/b/a Xizi Lashes (“Xizi Lashes”); Qingdao LashBeauty Cosmetic Co., Ltd. d/b/a Worldbeauty (“Worldbeauty”); Alicia Zeng d/b/a Lilac St. and Artemis Family Beginnings, Inc. (collectively, “Lilac”); and Rachael Gleason d/b/a Avant Garde Beauty Co. based on the importation and/or sale of certain artificial eyelash extension systems, products, and components thereof that infringe U.S. Patent No. 10,660,388 (“the ’388 patent”); U.S. Patent No. 10,721,984 (“the ’984 patent”); U.S. Design  Patent No. D877,416 (“the D’416 patent”); and U.S. Patent No. D867,664 (“the D’664 patent”).  On June 9, 2021, the Chief ALJ granted-in-part Respondents’ motion for summary determination of no domestic industry, finding that Lashify failed to satisfy the technical prong for the ’388 patent.  An evidentiary hearing was held on July 12-15, 2021.

According to the ID, Chief ALJ Bullock determined that no violation of section 337 occurred based on the following conclusions of law:

  1. The importation or sale requirement of section 337 has been satisfied.

  1. The KISS Accused Products, Hollyren Accused Products, Worldbeauty Glue-Based Accused Products, and Lilac Accused Products do not infringe claims 1, 9, 13, 23, 27, or 28 of the ’984 patent.

  1. The TSD Worldbeauty Heat-Bonded Accused Product infringes claims 1, 9, 23, and 27 of the ’984 patent.

  1. The TSD Worldbeauty Heat-Bonded Accused Product does not infringe claims 13 or 28 of the ’984 patent.

  1. The TGSS Worldbeauty Heat-Bonded Accused Product infringes claims 1, 23, and 27 of the ’984 patent.

  1. The TGSS Worldbeauty Heat-Bonded Accused Product does not infringe claims 9, 13, or 28 of U.S. Patent No. 10,721,984.

  1. Respondents Alicia Zeng d/b/a Lilac St. and Artemis Family Beginnings, Inc. do not induce infringement of the ’984 patent.

  1. The technical prong of the domestic industry requirement for the ’984 patent has not been satisfied.

  1. The asserted claims of the ’984 patent are not invalid under 35 U.S.C § 103 for obviousness.

  1. The asserted claims of the ’984 patent are not invalid under 35 U.S.C. § 112 for lack of enablement or written description.

  1. The Hollyren storage cartridge, Model No. DX02059G0004, infringes the D’416 patent.

  1. The technical prong of the domestic industry requirement for the D’416 patent has been satisfied.

  1. The Hollyren applicator Model No. CX1514 infringes the D’664 patent.

  1. The technical prong of the domestic industry requirement for the D’664 patent has been satisfied.

  1. The D’664 patent is not invalid as functional.

  1. The economic prong of the domestic industry requirement has not been satisfied for the asserted patents.
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