By Eric Schweibenz
On July 28, 2009, Hexagon Metrology AB of Sweden and Hexagon Metrology, Inc. of North Kingstown, Rhode Island (collectively, “Hexagon”) filed a complaint requesting that the ITC commence an investigation pursuant to section 337.

The complaint alleges that the following proposed respondents (collectively, “Respondents”) unlawfully import into the U.S., sell for importation, and sell within the U.S. after importation certain articulated coordinate measuring arms and components thereof, which allegedly infringe U.S. Patent No. 5,829,148 (the ‘148 Patent):

  • Metris N.V. of Belgium

  • Metris U.S.A., Inc. of Brighton, Michigan

  • Mitutoyo Corporation of Japan

  • Mitutoyo America Corporation of Aurora, Illinois

According to the complaint, the asserted ‘148 Patent relates to coordinate measuring arms used in metrology equipment by numerous industries, including aerospace, automotive, heavy equipment, defense, shipbuilding, off-highway vehicles, tube bending, furniture, machine shops, molded plastics, sheet metal, die and mold shops.  The complaint further indicates that the ‘148 Patent has been involved in two different reexamination proceedings at the U.S. Patent and Trademark Office (“USPTO”) and in “response to both reexamination requests, the USPTO confirmed the validity of the ‘148 Patent without any amendments to the claims.”

In the complaint, Hexagon alleges that the proposed Metris and Mitutoyo respondents import, sell for importation, or sell after importation into the U.S. articulated manual coordinate measuring arms and/or components thereof.

According to the complaint, the ‘148 patent has been previously litigated in the U.S. District Court for the Southern District of California against Faro Technologies (the “Faro Litigation”).  The Faro Litigation proceeded to a jury trial and the jury found the ‘148 patent valid.  The jury in the Faro Litigation, however, was hung on the infringement issues, and thus the court granted Faro’s motion for a mistrial on the infringement issues.  The Faro Litigation was subsequently settled and dismissed in March 2007.  Hexagon’s complaint further alleges that on July 15, 2009, Hexagon Metrology AB filed a lawsuit against the proposed Metris and Mitutoyo respondents in the U.S. District Court for the District of Massachusetts.

Regarding domestic industry, Hexagon alleges in the complaint that a “domestic industry exists in connection with Hexagon’s development, manufacture, and/or sale of the Infinite 2.0 articulated coordinate measuring arm and probes in the United States under each of the three prongs of 19 U.S.C. § 1337(a)(3).”

With respect to potential remedy, Hexagon requests that the Commission issue a general exclusion order, or, in the alternative, a limited exclusion order, as well as a cease and desist order directed to each proposed Respondent.