23
May
By John Presper

On May 19, 2022, ALJ MaryJoan McNamara issued the public version of her March 25, 2022 initial determination (“ID”) granting-in-part Complainants One World Technologies, Inc. (“One World”) and Techtronic Power Tools Technology, Ltd.’s (“TTT”) (collectively, “Complainants”) motion for summary determination of violation of section 337 in Certain Batteries and Products Containing Same (Inv. No. 337-TA-1244 ).

By way of background, this investigation is based on a December 30, 2020 complaint alleging violations of section 337 by Respondents Darui Development Limited of China (“Darui Development”); Dongguan Xinjitong Electronic Technology Co., Ltd., of China (“Dongguan Electronic”); Shenzhen Laipaili Electronics Co., Ltd., of China (“Shenzhen Laipaili”); Shenzhen Liancheng Weiye Industrial Co., Ltd., of China; Shenzhen MingYang Creation Electronic Co., Ltd., of China (“Shenzhen MingYang”); Shenzhen Ollop Technology Co. Ltd., of China; Shenzhen Rich Hao Yuan Energy Technology Co., Ltd., of China (“Shenzhen Rich Hao”); Shenzhen Runsensheng Trading Co., Ltd., of China (“Shenzhen Runsensheng”); Shenzhen Saen Trading Co., Ltd., of China (“Shenzhen Saen”); Shenzhen Shengruixiang E-Commerce Co., Ltd., of China (“Shenzhen E-Commerce”); Shenzhen Tuo Yu Technology Co., Ltd., of China; Shenzhen Uni-Sun Electronics Co., Ltd., of China (“Shenzhen Uni-Sun”); and Shenzhen Vmartego Electronic Commerce Co., Ltd., of China (“Shenzhen Vmartego”) (collectively, “Respondents”) in the importation/sale of certain batteries that infringe one or more claims of U.S. Design Patent Nos. D579,868, D580,353, and D593,944.  See our February 8, 2021 post for more details regarding the complaint and Notice of Investigation.

According to the ID, Complainants moved for summary determination of violation of section 337 by the following Respondents that defaulted:  Darui Development, Dongguan Electronic, Shenzhen Laipaili, Shenzhen MingYang, Shenzhen Rich Hao, Shenzhen Runsensheng, Shenzhen Saen, Shenzhen E-Commerce, Shenzhen Uni-Sun, and Shenzhen Vmartego (collectively, “Defaulting Respondents”).  Complainants also sought summary determination that they satisfy the technical and economic prongs of the domestic industry requirement, and requested a recommended determination recommending entry of a general exclusion order (“GEO”) and a bond rate of 100% during the Presidential review period.  The Commission Investigative Staff (“OUII”) supported summary determination against Defaulting Respondents Darui Development, Dongguan Electronic, Shenzhen Rich Hao, and Shenzhen Saen, but argued that certain of the evidence that Complainants submitted did not sufficiently tie the importation, sale, or sale after importation of certain of the accused products to the remaining Defaulting Respondents.  OUII also challenged whether Complainants’ investments in plant and equipment and labor for technical publications and packaging should be included as qualifying investments for domestic industry; otherwise, OUII generally supported a finding that Complainants have satisfied the economic prong of domestic industry under 19 U.S.C. § 1337(a)(3)(A) and (B).  OUII also supported Complainants’ remedy requests.

ALJ McNamara generally agreed with OUII and found no genuine factual disputes with respect to Darui Development, Dongguan Electronic, Shenzhen Rich Hao, and Shenzhen Saen.  Accordingly, the ID found a violation of section 337 by these four Defaulting Respondents, and that Complainants are entitled to a judgment as a matter of law with respect to those Defaulting Respondents.  Regarding the remaining six (6) Defaulting Respondents, the ID found that the evidence linking these Defaulting Respondents as the owners and/or sellers of the accused products offered for sale on e-commerce websites (from which samples of the accused products were purchased) is “weak to non-existent.”

The specific findings of fact and conclusions of law in the ID are set forth below:

  1. Complainant One World is a Delaware corporation that has its principal place of business located in Anderson, South Carolina.

  1. Complainant TTT, formerly known as Eastway Fair Company Limited, is a corporation organized under the laws of the British Virgin Islands and has its principal place of business at in Tortola, British Virgin Islands.

  1. TTT is a holding company for intellectual property rights, including the asserted patents, which are used by, and for the benefit of, entities belonging to the TTT family of companies, including One World.

  1. Complainants have satisfied the requirements for subject matter jurisdiction because they filed a complaint alleging that the Defaulting Respondents violated 19 U.S.C. § 1337(a)(1)(B), and therefore have stated a cause of action.

  1. Section 337 investigations are in rem.  In personam jurisdiction is unnecessary.  Therefore, jurisdiction is satisfied.

  1. Each of the asserted patents has been infringed.

  1. Complainants have satisfied the technical prong of the domestic industry requirement because it is undisputed that their RYOBI™ ONE+ SYSTEM, including the 18V ONE+ battery packs (“DI Products”) practice one or more of the three asserted patents as supported by the testimony of Complainants’ technical expert Mr. Timothy Fletcher through his Declaration at ¶ 12 at Doc. ID No. 745172, at Exhibit 8 (“Fletcher Decl.”)

  1. Complainants have proven that a domestic industry (“DI”) exists within the United States related to articles protected by the three asserted patents.

  1. With his Declaration Mr. Fletcher provided claim charts of the RYOBI™ DI Products that provide uncontested evidence that the DI Products practice the asserted patents. (Exs. 5-7 to Fletcher Decl.).  Fletcher examined the Complainants’ DI Products. (See Fletcher Decl. at ¶ 8.).  Mr. Fletcher testified that his analyses confirm that the design of the DI Products “is similar or substantially the same as that of the Asserted Patents.” (See Fletcher Decl. at ¶ 12.).  Mr. Fletcher has been accepted as an expert on the design of the DI Products as one or more of them practices the asserted patents, and on infringement by all of the examined accused products.

  1. The overall designs of the accused products, and specifically those that Mr. Fletcher examined, e., jolege, Enegitech, Lasica, Biswaye, Fhybat, FUZADEL, Topbatt, SUN POWER, energup, and Powilling, infringe all three asserted patents. (See Fletcher Decl. at ¶ 8.). Mr. Fletcher provided claim charts that discuss how each of the accused products practice the three asserted patents.  (Exs. 8-10 to Fletcher Decl.).

  1. All of the accused products infringe one or more of the asserted patents because they are “similar or substantially the same as” the designs of the asserted patents, such that the resemblance would deceive the ordinary consumer into purchasing one supposing it to be the other.” (See Fletcher Decl. at ¶ 13.).

  1. Complainants have proven by a preponderance of evidence that the Defaulting Respondents Darui Development, Dongguan Electronic, Shenzhen Rich Hao, and Shenzhen Saen have violated section 337 of the Tariff Act of 1930 as amended, by importing into the United States, selling for importation, or selling within the United States after importation certain battery packs that infringe all three asserted patents.

  1. Complainants have not proven by a preponderance of evidence that the remaining six (6) Defaulted Respondents, Shenzhen Rich Hao, Shenzhen Runsensheng, Shenzhen Saen, Shenzhen E-Commerce, Shenzhen Uni-Sun, and Shenzhen Vmartego, have violated Section 337.  There are material disputes of fact whether importation is satisfied with respect to the identified, six (6) Defaulting Respondents.

  1. The asserted patents are valid and enforceable. The validity and enforceability of the Asserted Patents are undisputed.

  1. Complainants have proven, and it is undisputed, that they satisfy the economic prong of the domestic industry requirement under section 337(a)(3)(A) and (a)(3(B) through their domestic investments.  The investments are significant or substantial as supported by the unrebutted testimony of Complainants’ economic expert Ms. Kelly Campbell in her Declaration of Kelly M. Campbell Relating to Domestic Industry and Bond (“Campbell Decl.”) together with the exhibits that contain the information to which Ms. Campbell testified. (See ID No. 745194.).  Ms. Campbell has been accepted as an expert on the topics for which she was asked to testify.

  1. A GEO is recommended.

  1. A bond during the Recommended Presidential Review is recommended in the amount of 100% of the entered value of the infringing imported Accused Products.
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