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IPR Import Restrictions Considered for Computers and Peripherals

Wednesday, October 30, 2013
Sandler, Travis & Rosenberg Trade Report

The International Trade Commission is reviewing in its entirety the final initial determination issued by the presiding administrative law judge in investigation 337-TA-841 that the importation, sale for importation and sale within the U.S. after importation of certain computer and computer peripheral devices, components thereof and products containing same are infringing one patent owned by Technology Properties Limited LLC but not others.

The ITC has asked the parties to this investigation to brief it on a number of specific issues, including whether, in light of the statutory language, legislative history, the ITC’s prior decisions and relevant court decisions, establishing a domestic industry based on licensing under 19 USC 1337(a)(3)(C) requires proof of “articles protected by the patent.” The ALJ found that TPL demonstrated the existence of a domestic industry through its licensing investment, but some respondents argue that there is no evidence that TPL’s licensees’ efforts relate to an article protected by any of the asserted patents. The ITC is also requesting that the complainants state the date the asserted patents expire and the HTSUS numbers under which the accused products are imported.

In connection with the final disposition of this investigation, the ITC may issue an order that could result in the exclusion of the subject articles from entry into the U.S. and/or one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the ITC is interested in receiving no later than Nov. 7 written submissions on (a) the form of remedy, if any, that should be ordered, (b) the effects of any such remedy on the public health and welfare, competitive conditions in the U.S. economy, U.S. production of articles that are like or directly competitive with those that are subject to investigation, and U.S. consumers, and (c) the amount of the bond under which infringing articles could enter the U.S. during the 60-day period the president has to review any ITC-ordered remedy.

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