“Man Controlling Trade” outside the ITC in DC, by NY sculptor Michael Lantz (1942).

The United States Court of Appeals recently issued a Rule 36 Summary Affirmance of the April 27, 2012 Final Determination of the International Trade Commission (hereinafter “Commission” or “ITC”) in In the Matter of Certain Ground Fault Circuit Interrupters and Products Containing Same. A Rule 36 judgment can be entered without an opinion when it is determined by the panel that any one of five conditions exist and a written opinion would not have precedential value.  See What is a Rule 36 Judgment?  The Federal Circuit judgment affirmed the Commission’s general exclusion order, “prohibiting the unlicensed importation of infringing ground fault circuit interrupters and products containing same,” inhibiting infringement on Leviton Manufacturing’s U.S. Patent No. 7,737,809.

The Commission instituted this particular investigation on October 8, 2010, based on a complaint and an amended complaint filed by Leviton Manufacturing Co., of Melville, New York (“Leviton”). The complaint and amended complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain ground fault circuit interrupters and products containing the same by reason of infringement of claims 1-7, 9-11, 13-17, 23-26, and 32-36 of U.S. Patent No. 7,463,124 (“the ’124 patent”); claims 1-11, 13-28, 30-59, 61-64, and 74-83 of U.S. Patent No. 7,737,809 (“the ’809 patent”); and claims 1-4 and 8 of U.S. Patent No. 7,764,151 (“the ’151 patent”).

The notice of investigation named numerous respondents, and during the course of the investigation, several of the respondents were found to be in default or were terminated on the basis of settlement agreements, consent orders, or withdrawn allegations. At the time of the evidentiary hearing, seven respondents remained in the investigation, consisting of Zhejiang Trimone Electric Science & Technology Co. Ltd., of Zhejiang, China (“Trimone”); Fujian Hongan Electric Co, Ltd., of Fujian, China (“Hongan”); TDE, Inc., of Bellevue, Washington (“TDE”); Shanghai ELE Manufacturing Corp., of Shanghai, China (“ELE”); Orbit Industries, Inc., of Los Angeles, California (“Orbit”); American Electric Depot Inc., of Fresh Meadows, New York (“AED”); and Shanghai Jia AO Electrical Co. (“Shanghai Jia”).

On December 20, 2011, the presiding administrative law judge (“ALJ”) issued his final initial determination (“ID”) in this investigation finding that Leviton had not sufficiently shown that a domestic industry exists with respect to articles protected by the asserted patents. Accordingly, the ALJ found no violation of section 337.  On February 21, 2012, the Commission issued a notice that it had determined to review the ID in its entirety and requested submissions from the parties on certain issues.

Ultimately, upon review of the final ID, the Commission determined that a violation of section 337 had been shown based on infringement of claims 1-4, 6, 8-11, 13, 15-16, 35-37, 39, and 41-46 of the ’809 patent. The Commission determined that certain claims of the ’124 and ’151 patents are invalid and no violation based on those patents has been shown. The Commission further determined that the public interest factors enumerated in subsections (d)(1) and (f) (19 U.S.C. §§ 1337(d)(1), (f)) did not preclude issuance of the general exclusion order or the cease and desist orders.

Without an opinion, on August 13, 2013, the Federal Circuit panel (consisting of Judges Prost, Moore and O’Malley) affirmed the Final Determination. See International Trade Commission v. Leviton Manufacturing Co., Inc.

While Leviton was pleased with the CAFC decision to affirm the exclusion order relative to the ‘809 patent, Meir Blonger, Chief Intellectual Property Counsel, stated that it is still the company’s belief that “the ITC erred as a matter of law with respect to two claims of U.S. Patent No. 7,764,151.” He continued to state that this affirmance by the Federal Circuit does not affect the ‘151 patent, which he says remains valid as a matter of law.

Tags: CAFC, exclusion order, exclusion orders, Federal Circuit, International Trade Commission, ITC

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