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IPR Enforcement: Food Supplements, Device Holders, Arrowheads

Monday, October 10, 2016
Sandler, Travis & Rosenberg Trade Report

New Petitions Filed. The International Trade Commission has received separate petitions requesting that it institute Section 337 investigations regarding the following products.

- food supplements and vitamins, including ocular antioxidants and components thereof and products containing the same (filed Oct. 6 on behalf of Kemin Industries Inc. and Kemin Foods L.C.; respondents located in India and the U.S.)

- device holders and components thereof (filed Oct. 6 on behalf of Nite Ize Inc.; respondents located in China, Hong Kong, and the U.S.)

Section 337 investigations primarily involve claims regarding intellectual property rights violations by imported goods, including the infringement of patents, trademarks, and copyrights. Other forms of unfair competition involving imported products, such as misappropriation of trade secrets or trade dress and false advertising, may also be asserted. The primary remedy available in Section 337 investigations is an exclusion order that directs U.S. Customs and Border Protection to stop infringing imports from entering the U.S. In addition, the ITC may issue cease and desist orders against named importers and other persons engaged in unfair acts that violate Section 337, including selling infringing imported articles out of U.S. inventory.

Arrowheads with Deploying Blades. In patent and trademark infringement investigation 337-TA-977 of arrowheads with deploying blades and components thereof and packaging therefor, the International Trade Commission has determined to review in part an initial determination that the defaulting respondents’ accused products infringe one or more of the patent claims, and the trademark, asserted by complainants FeraDyne Outdoors LLC and Out RAGE LLC. The presiding administrative law judge has recommended the issuance of a general exclusion order but not a cease and desist order directed against the defaulting respondents.

The ITC is now inviting comments through Oct. 20 on the form of remedy, if any, that should be ordered in this investigation; 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 the amount of the bond under which infringing articles could continue to enter the U.S. during the 60-day period the president has to review any ITC-ordered remedy.

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