2023 in Review at the International Trade Commission | Haug Partners LLP
On March 8, 2023, in Investigation No. 337-1265, the ITC issued a LEO prohibiting unlicensed entry of fitness devices, streaming components thereof, and systems containing same by Respondents ICON Health & Fitness, Inc., FreeMotion Fitness, Inc., NordicTrack Inc. (collectively, “iFit”), and Peloton Interactive, Inc. (“Peloton”); and CDOs against iFit and Peloton.64 Complainants are DISH DBS Corporation, DISH Technologies, LLC and Sling TV LLC (collectively, “DISH”).65 After this decision, Peloton and DISH entered into a $75 million settlement which included DISH requesting the import ban against Peloton to end.66 The ITC voted and on June 1, 2023, agreed that the ban should lift as to Peloton; this did not affect the ban as to iFit.67 iFit has since appealed the ban against it to the Federal Circuit, and submitted its opening brief on November 21, 2023.68 DISH’s response brief is currently due March 3, 2024.69
Also, on October 26, 2023, the ITC issued a LEO and CDO against Apple, Inc. (“Apple”) in Investigation No. 337-1276, prohibiting the unlicensed entry of infringing wearable electronic devices with light-based pulse oximetry functionality and components thereof manufactured by or on behalf of Apple or any of its affiliated companies, parents, subsidiaries, or other related business entities, or its successors or assigns.70 Complainants are Masimo Corporation and Cercacor Laboratories, Inc.71 The remedial orders include an exemption for service or repair or, under warranty terms, replacement of products purchased prior to the end of the period of Presidential review.72 Apple announced that it would stop selling particular Apple watches in response to this ruling.73
Apple then appealed to the Federal Circuit, and the ITC rejected Apple’s request to pause the ban pending the appeal process.74 The Federal Circuit had temporarily paused the ban until it decided whether to grant Apple’s motion requesting that the ban be paused for the entire appeal process.75 Thus, Apple resumed sales of its watches with blood oxygen sensors.76 However, on January 17, 2024, while the Federal Circuit did not issue a ruling to overturn the ITC decision, the Federal Circuit did lift the injunction that blocked the ban.77 Thus, Apple is now banned from importing the Apple Watch Series 9 and Ultra 2—both containing blood oxygen sensors—through the pendency of the appeal.78
1 Understanding Investigations of Intellectual Property Infringement and Other Unfair Practices in Import Trade (Section 337), U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
2 About Section 337, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
3 Id.
4 Import Injury Investigations, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
5 Understanding Antidumping and Countervailing Duty Investigations, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
6 Section 332, Ongoing General Factfinding Investigations, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
7 Section 337 Statistics: Number of New, Completed, and Active Investigations by Fiscal Year (Updated Quarterly), U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
8 Company facts, ERICSSON, (last visited Jan. 26, 2024).
9 Who we are, LENOVO, (last visited Jan. 26, 2024).
10 Samsung Display Co. is a display product company. Company Overview, SAMSUNG DISPLAY, (last visited Jan. 26, 2024).
11 MobileSentrix is a technology wholesaler. We are MS, MOBILE SENTRIX, (last visited Jan. 26, 2024).
12 Viking Therapeutics, Inc. is “a clinical-stage biopharmaceutical company” focused on treatment of metabolic and endocrine disorders. Overview, VIKING THERAPEUTICS, (last visited Jan. 26, 2024).
13 Ascletis Pharma Inc. is a “R&D driven biotech” with “multiple drug candidates in its R&D pipeline.” Corporate Overview, ASCLETIS, (last visited Jan. 26, 2024).
14 Netgear Inc. is a networking product company. About NETGEAR, NETGEAR, (last visited Jan. 26, 2024).
15 TP-Link Technologies is a provider of networking devices and accessories. About TP-Link, TP-LINK, (last visited Jan. 26, 2024).
16 West Pharmaceutical Services, Inc. is a global manufacturer in the design and production of integrated containment and delivery systems for injectable medicines. About West, WEST, (last visited Jan. 26, 2023).
17 Advcare Medical, Inc. is a designer and manufacturer of infusion products. ADV CARE, (last visited Jan. 26, 2024).
18 JUUL Labs, Inc. is a vapor products company. Our Mission, JUUL LABS, (last visited Jan. 26, 2024).
19 NJOY, LLC is a vaping company. Frequently Asked Questions, NJOY, (last visited Jan. 26, 2024).
20 InterDigital, Inc. is a wireless and video technology company. About, INTERDIGITAL, (last visited Jan. 26, 2024).
21 About Section 337, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
22 Defining Moments (Trade Terms and Practices, Briefly Defined): Exclusion Order, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
23 About Section 337, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
24 Full data not yet available for 2023.
25 Section 337 Statistics: Average Length of Investigations, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
26 Full data not yet available for 2023.
27 Section 337 Statistics: Average Length of Investigations, U.S. INT’L TRADE COMM’N, (last visited Jan. 26, 2024).
28 Sling TV is an “app-based TV service.” SLING, (last visited Jan. 26, 2024).
29 Peloton Interactive, Inc. is a home fitness company. The Peloton Story, PELOTON, (last visited Jan. 26, 2024).
30 iRobot Corporation is a cleaning robot company. IROBOT, (last visited Jan. 26, 2024).
31 SharkNinja Operating LLC is a consumer products and appliances company. Our Company, SHARKNINJA, (last visited Jan. 26, 2024).
32 Motorola Solutions, Inc. is a safety and security technology company. About Us, MOTOROLA SOLUTIONS, (last visited Jan. 26, 2024).
33 Verkada Inc. is a cloud security company. VERKADA, (last visited Jan. 26, 2024).
34 LG Electronics Inc. is a home appliance and electronics company. LG, (last visited Jan. 26, 2024).
35 Freshlab LLC is a software development company. FRESHLAB, (last visited Jan. 26, 2024).
36 Smoore Technology Limited is an atomization technology company. Introduction, SMOORE, (last visited Jan. 26, 2024).
37 Glo Extracts is a cannabis company. About Us, (last visited Jan. 26, 2024).
38 Crocs, Inc. is a casual footwear company. CROCS INC., (last visited Jan. 26, 2024).
39 Hobby Lobby Stores, Inc. is an arts-and-crafts retailer. Our Story, HOBBY LOBBY, (last visited Jan. 26, 2024).
40 Brita LP is a water filtration company. BRITA, (last visited Jan. 26, 2024).
41 Mavea LLC is a water filtration company. MAVEA, (last visited Jan. 26, 2024).
42 Masimo Corporation is a global medical technology company. About, MASIMO, (last visited Jan. 26, 2024).
43 Bissell Inc. is a cleaning product company. About Us, BISSELL, (last visited Jan. 26, 2024).
44 Tineco Intelligent Technology Co. is a home appliance company. TINECO, (last visited Jan. 26, 2024).
45 Paul Keller, The Bills to Watch: IP Legislation of 2023 That Will Affect Your 2024, IPWATCHDOG (Dec. 20, 2023), https://ipwatchdog.com/2023/12/20/bills-watch-ip-legislation-2023-will-affect-2024/id=170815/.
46 Schweikert, Beyer Introduce Legislation to Modernize ITC, Protect American Industry, Workers, and Consumers From Patent Trolls, SCHWEIKERT (May 18, 2023), https://schweikert.house.gov/2023/05/18/schweikert-beyer-introduce-legislation-to-modernize-itc-protect-american-industry-workers-and-consumers-from-patent-trolls/.
47 H.R. 3535, 118th Cong. (2023).
48 Schweikert, Beyer Introduce Legislation to Modernize ITC, Protect American Industry, Workers, and Consumers From Patent Trolls, supra note 46.
49 Keller, supra note 45.
50 Schweikert, Beyer Introduce Legislation to Modernize ITC, Protect American Industry, Workers, and Consumers From Patent Trolls, supra note 46.
51 Eileen McDermott, Industry, NGOs Spar Over Need to Extend TRIPS COVID IP Waiver at ITC Hearing, IPWATCHDOG (Mar. 29, 2023), https://ipwatchdog.com/2023/03/29/industry-ngos-spar-need-extend-covid-ip-waiver-itc-hearing/id=158595/.
52 Eileen McDermott, ITC Report on TRIPS COVID IP Waiver Extension Plays it Safe, IPWATCHDOG (Oct. 18, 2023), https://ipwatchdog.com/2023/10/18/itc-report-trips-covid-ip-waiver-extension-plays-safe/id=168456/.
53 Id.
54 Certain Effects of Section 232 and 301 Tariffs Reduced Imports and Increased Prices and Production in Many U.S. Industries, UNITED STATES INTERNATIONAL TRADE COMMISSION (Mar. 15, 2023), https://www.usitc.gov/press_room/news_release/2023/er0315_63679.htm.
55 Economic Impact of Section 232 and 301 Tariffs on U.S. Industries, Inv. No. 332-591, USITC Pub. 5405 (Mar. 2023) at 19-20.
56 Id. at 18.
57 Id. at 21.
58 Id.
59 Id. at 22.
60 Recent Trends in U.S. Services Trade: 2023 Annual Report, Inv. No. 332-594, USITC Pub. 5431 (May 2023) at 1, 13.
61 Id.at 17.
62 Id. at 22.
63 Id. at 21.
64 Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same, Inv. No. 337-TA-1265 (Mar. 8, 2023) (Final Determination).
65 Id.
66 Chris Lewis, US ITC Officially Rescinds Import Ban Order Against Peloton From Dish Lawsuit, PELO BUDDY (June 3, 2023), https://www.pelobuddy.com/us-itc-rescind-import-ban/.
67 Id.
68 iFIT, Inc. v. ITC, No. 23-1965 (Fed. Cir. appeal docketed May 31, 2023).
69 Id.
70 Certain Light-Based Physiological Measurement Devices and Components Thereof, Inv. No. 337-TA-1276 (Oct. 26, 2023) (Final Determination).
71 Id.
72 Id.
73 Mark Gurman & Bloomberg, Apple to stop selling its latest smartwatches after losing patent case to rival that says ‘even the world’s most powerful company must abide by the law’, FORTUNE (Dec. 18, 2023), https://fortune.com/2023/12/18/apple-watch-halt-us-sales-smartwatches-patent-loss/.
74 Blake Brittain, Apple files appeal after Biden administration allows US ban on watch imports, REUTERS (Dec. 26, 2023), https://www.reuters.com/technology/biden-administration-allows-us-trade-tribunals-ban-apple-watch-imports-2023-12-26/.
75 Jessica Hagen, Apple can sell its Apple Watches again after Appeals Court suspends order, MOBIHEALTHNEWS (Dec. 28, 2023), https://www.mobihealthnews.com/news/apple-can-sell-its-apple-watches-again-after-appeals-court-suspends-order.
76 Id.
77 Kif Leswing & Rohan Goswami, Apple again banned from selling watches in U.S. with blood oxygen sensor, CNBC (Jan. 17, 2024), https://www.cnbc.com/2024/01/17/apple-again-banned-from-selling-watches-in-us-with-blood-oxygen-sensor.html.
78 Id.
