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IPR Enforcement Actions on Kinesiotherapy Devices, Consumer Electronics, Program Guides

Friday, June 21, 2013
Sandler, Travis & Rosenberg Trade Report

New Import Restrictions on Kinesiotherapy Devices. The International Trade Commission has determined that the importation, sale for importation and sale in the U.S. after importation of certain kinesiotherapy devices and components thereof (specifically, a certain kind of sex toy) are violating certain patents owned by Standard Innovation Corporation of Canada and Standard Innovation (US) Corp. and that these companies have satisfied the economic prong of the domestic industry requirement.

As a result, the ITC has issued (a) a general exclusion order prohibiting the unlicensed entry of infringing products and (b) cease and desist orders prohibiting the respondents, all of which are located in the U.S., from importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for infringing devices in the U.S.

President Obama will now have 60 days to review and possibly overturn these restrictions, and no bond will be required for the entry of infringing articles during that time.

New IPR Infringement Investigation of Consumer Electronics. The International Trade Commission has instituted investigation 337-TA-884 to determine whether imports of computer laptops, netbooks, tablet computers, personal computers, television sets, high definition camcorders, and Blu-ray and DVD players are violating Section 337 of the 1930 Tariff Act by reason of patent infringement. Complainant Graphics Properties Holdings Inc. requests that after this investigation the ITC issue an exclusion order, which would direct U.S. Customs and Border Protection to prohibit the entry of the infringing products into the U.S., and cease and desist orders, which would require the named respondents to cease actions that violate Section 337, including selling infringing imported articles out of U.S. inventory. The respondents in this investigation are located in Japan, Taiwan, China and the U.S.

Remedial Orders Considered on Products with Interactive Program Guides. The International Trade Commission is inviting public comments through July 15 on possible import restrictions on certain products containing interactive program guide and parental control technology. While the presiding administrative law judge has found no violation of Section 337 in this investigation, he has recommended that if the ITC reverses this determination it should issue a limited exclusion order against respondent Roku Inc.

The ITC is therefore requesting input on whether the issuance of an LEO would affect the public health and welfare in the U.S., competitive conditions in the U.S. economy, the production of like or directly competitive articles in the U.S., or U.S. consumers. In particular, the Commission is interested in comments that:

- explain how the articles potentially subject to the LEO are used in the U.S.;

- identify any public health, safety or welfare concerns in the U.S. relating to the LEO;

- identify like or directly competitive articles that the complainant, its licensees or third parties make in the U.S. that could replace the subject articles if they were to be excluded;

- indicate whether the complainant, its licensees and/or third-party suppliers have the capacity to replace the volume of articles potentially subject to the LEO and/or a cease and desist order within a commercially reasonable time; and

- explain how the LEO would impact consumers in the U.S.

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