ITC Monthly Wrap-Up: December 2023 | Fish & Richardson

December 2023 saw five complainants file five Section 337 complaints in the International Trade Commission:

1. Future Motion Inc. filed a complaint against Changzhou Gaea Technology Co. Ltd., Changzhou Smilo Motors CO. Ltd.,Floatwheel, and Shanghai Loyal Industry Co Ltd. in Self-Balancing Electric Skateboards and Components Thereof, Dkt. No. 3710;
2. Toppan Interamerica Inc. filed a complaint against Whalen Furniture Manufacturing Inc. in Furniture Products Finished with Decorative Wood Grain Paper and Components Thereof, Dkt. No. 3711;
3. Telefonaktiebolaget LM Ericsson filed a complaint against Lenovo in Electronic Computing Devices, and Components and Modules Thereof, Dkt. No. 3712;
4. Motorola Mobility LLC filed a complaint against Ericsson AB, Ericsson Inc., and Telefonaktiebolaget LM Ericsson in Cellular Base Station Communication Equipment, Components Thereof, and Products Containing the Same, Dkt. No. 3713; and
5. X1 Discovery Inc. filed a complaint against numerous respondents in Computing Devices Utilizing Indexed Search Systems and Components Thereof, Dkt. No. 3714.

The Commission also instituted seven investigations in December 2023:

1. Organic Light-Emitting Diode Display Modules and Components Thereof, Inv. No. 337-TA-1378 (assigned to Administrative Law Judge McNamara);
2. Video Capable Electronic Devices, Including Computers, Streaming Devices, Televisions, Cameras, and Components and Modules Thereof, Inv. No. 337-TA-1379 (assigned to ALJ Hines);
3. Video Capable Electronic Devices, Including Computers, Streaming Devices, Televisions, and Components and Modules Thereof, Inv. No. 337-TA-1380 (assigned to ALJ Elliot);
4. Disposable Vaporizer Devices and Components and Packaging Thereof, Inv. No. 337-TA-1381 (assigned to CALJ Cheney);
5. Electronic Computing Devices and Components Thereof, Inv. No. 337-TA-1382 (assigned to ALJ Bhattacharyya);
6. Electronic Eyewear Products and Components Thereof, Inv. No. 337-TA-1383 (assigned to ALJ Elliot); and
7. Passive Optical Network Equipment, Inv. No. 337-TA-1384 (assigned to ALJ Hines).

This month’s ITC Wrap-Up reviews a recent investigation exploring exemptions to the Commission’s remedial orders. Certain Wet Dry Surface Cleaning Devices, Inv. No. 337-TA-1304, Final Determination (Dec. 18, 2023). In February 2022, BISSELL Inc. and BISSELL Homecare Inc. (“BISSELL”) asserted five patents against respondents that import, and/or sell after importing, wet dry surface cleaning devices, i.e., Tineco Intelligent Inc., Tineco Intelligent Technology Co. Ltd., and TEK (Hong Kong) Science & Technology Limited (“Tineco”). The investigation was assigned to Chief ALJ Cheney.

By way of background, ALJs in the ITC may recommend exemptions from remedial orders “for service and repair of existing devices to prevent harm to innocent third parties and U.S. consumers who have purchased infringing goods” prior to any finding by the Commission that Section 337 has been violated. Certain Elec. Digital Media Devices & Components Thereof, Inv. No. 337-TA-796, Comm’n Op. at 122 (Sep. 6, 2013). Through these exemptions, the ITC provides a mechanism for protecting consumers’ property, specifically for maintenance and repair, if the Commission finds a violation of Section 337.

In the 1304 investigation, following CALJ Cheney’s final initial determination that Tineco had violated Section 337, all parties agreed that a limited exclusion order and cease and desist orders would be appropriate. However, Tineco sought exemptions for service, warranty, repair, or replacement of products for both the LEO and CDOs. Tineco attempted to show warranty obligations for at least one of its products by introducing an instruction manual that contained warranty provisions.

However, the CALJ held that this showing was insufficient, as Tineco had not cited to any trial testimony discussing a Tineco warranty program: “Tineco has not described its warranty obligations or how an exclusion order would render Tineco unable to satisfy any such obligations.” See Recommended Determination on Remedy & Bond (Apr. 7, 2023). The CALJ further faulted Tineco for failing to identify detrimental effects on U.S. consumers without a service and repair exemption. In essence, the CALJ recommended denying this requested exemption for lack of a developed record beyond a single manual. The Commission reviewed.

On review, Tineco switched tactics and instead asked for a provision authorizing them to update software in older products to convert them to non-covered, redesigned products. The Commission recognized that this would be unnecessary for software updates, as “remedial orders do not cover electronic transmissions in the United States.” Comm’n Op. at 88 (Jan. 8, 2024) (citing Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same, Inv. No. 337-TA-1265, Comm’n Op. at 76 (March 23, 2023)). Following review, the Commission ultimately issued an LEO and CDOs without warranty, service, repair, or update exemptions. See LEO (Dec. 18, 2023); CDOs (Dec. 18, 2023).

This investigation serves as a reminder to ITC respondents hoping to fulfill warranty and other service obligations to their consumers to ensure that the record contains evidence of service obligations and, if not, a potential workaround if the exemptions are denied.

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