Friday, December 7, 2012

General Exclusion Order Under Section 337(d)(2)(A) Requires “Circumvention” Not “Pattern of Circumvention”

The Commission issued a general exclusion order directed to infringing lighting control devices despite the ALJ's finding, and the Commission investigating attorney's agreement, that complainant failed to establish that an exclusion order was necessary to prevent the circumvention of the recommended limited exclusion order. "[T]he facts here establish business conditions that suggest circumvention of an LEO may be likely to occur. [Complainant] has submitted evidence showing significant and increasing demand for the infringing products, widespread U.S. marketing and distribution networks with multiple intermediaries, a large number of non-respondent foreign manufacturers/distributors, and frequent name changes for foreign manufacturers/distributers. . . . [Complainant] has also presented evidence that [a respondent in a prior investigation] circumvented a Commission consent order by selling dimmer switches that infringe the [asserted] patent under its own and under a different name. Contrary to the IA's argument, this record evidence is relevant to the Commission's determination of whether a likelihood of circumvention of an LEO exists. . . . [T]he ALJ misstated section 337(d)(2)(A) which only requires 'circumvention,' not a 'pattern of circumvention,' and which may be satisfied. . . by a single company engaged in infringing activities that indicate circumvention. . . ."

Lighting Control Devices Including Dimmer Switches and Parts Thereof (IV), 337-TA-776 (ITC November 7, 2012, Order) (Trade Commission, J.).

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