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ITC Considering Court Decision, Consumer Effects of Possible Import Ban

Monday, December 23, 2013
Sandler, Travis & Rosenberg Trade Report

The International Trade Commission is reviewing in part a final determination issued by the presiding administrative law judge that the importation, sale for importation and sale within the U.S. after importation of certain electronic imaging devices are infringing certain patents owned by Flashpoint Technology Inc.

The ITC has asked the parties to this proceeding to submit their positions on various issues, including the following.

- whether the Court of Appeals for the Federal Circuit’s Dec. 13 opinion in Suprema Inc. v. ITC, which held that an exclusion order based on a violation of 19 USC 1337(a)(1)(B)(i) may not be predicated on a theory of induced infringement under 35 USC 271(b) where direct infringement does not occur until afterimportation of the articles the exclusion order would bar, applies to the facts of this case

- whether the U.S. investments alleged by Flashpoint are significant or substantial in the context of its business, the relevant industry and market realities

- the percentage of the total “no contract” and “pay as you go” phone market that would be affected by an exclusion order

- whether and how the ITC should consider, as part of its determination on whether and what kind of a remedy to issue, the fact that the respondent’s accused products are complex devices comprising numerous components whereas Flashpoint’s infringement allegations are directed to a single component of the accused devices

The ITC is also requesting comments from the public by Jan. 3 on (a) the form of remedy, if any, that should be issued (e.g., an exclusion order and/or cease and desist orders); (b) the effects of that 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 be imported into the U.S. during the 60-day period the president has to review any ITC-ordered remedy.

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