On May 17, 2017, the International Trade Commission (ITC) reversed an ALJ’s ruling and found a violation of Section 337 in Certain Air Mattress Systems, Components Thereof and Methods of using the Same (“Certain Air Mattress Systems”), Inv. No. 337-TA-971, due to the importation of certain air mattresses, and components of air mattresses, by the named respondents. The public version of the Commission opinion has been released and provides future ITC litigants with guidance regarding the proper allocation of expenses for domestic industry purposes, and how the Commission views certain types of products for public interest consideration.
On October 19, 2016, the ITC instituted Investigation No. 1025, based on a complaint filed on May 26, 2016, by Silicon Genesis Corporation (SiGen), against Soitec, S.A. (Soitec). As part of the institution, the ITC ordered that the ALJ issue an early initial determination regarding whether SiGen “has satisfied the economic prong of the domestic industry requirement.” See 81 F.R. 73419 (Notice of Institution of Inv. No. 1025) (Oct. 25, 2016). This is now the fourth time the ITC has ordered the 100-Day program in an investigation, and in this case it appears that previous behavior by the complainant SiGen contributed to the order.
On June 26, 2015, the ITC handed down its Commission Opinion in Certain Loom Kits for Creating Linked Articles, Inv. No. 337-TA-923, Comm’n Op. (Feb. 3, 2015) (hereinafter “Loom Kits ”), granting a general exclusion order. In its opinion, the Commission provided express rulings on what does and does not count towards the establishment of the economic prong of the domestic industry requirement under 19 U.S.C. § 1337(a)(3)(C).
The complainant in the investigation is Choon’s Design, LLC, which was founded by the sole inventor of the patent-at-issue, Mr. Ng, to protect its loom kit product for children. Id. at 1. After Mr. Ng’s product became successful, many similar products appeared on the market. Mr. Ng made numerous attempts to halt the sale of the knockoffs—filing “nine lawsuits against multiple piece loom kits,” sending “multiple cease and desist letters,” and “161 advisory letters to 161 U.S. malls informing them of the infringement problems,” and registering the “RAINBOW LOOM” trademark and copyright. Loom Kits, Init. Det., Order No. 13, at 47-48 (Feb. 3, 2015). Yet, after these efforts were insufficient, Mr. Choon filed an ITC investigation seeking a general exclusion order. Id. at 1.