ITC Issues General Exclusion Order for Certain Recordable Compact Discs and Rewritable Compact Discs
The International Trade Commission (ITC) has issued a general exclusion order in its section 337 patent-based investigation of certain recordable compact discs and rewritable compact discs (Inv. No. 337-TA-474).
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The ITC instituted this investigation based on a complaint filed by U.S. Philips Corporation of Tarrytown, New York (Philips), which alleged violations of section 337 of the Tariff Act of 1930 in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain recordable compact discs and rewritable compact discs by reason of infringement of certain claims of six U.S. patents: (1) claims 1, 5, and 6 of U.S. Patent No. 4,807,209; (2) claim 11 of U.S. Patent No. 4,962,493; (3) claims 1, 2, and 3 of U.S. Patent No. 4,972,401; (4) claims 1, 3, and 4 of U.S. Patent No. 5,023,856; (5) claims 1-5, and 6 of U.S. Patent No. 4,999,825; and (6) claims 20, 23-33, and 34 of U.S. Patent No. 5,418,764.
(The ITC has determined, on remand by the U.S. Court of Appeals for the Federal Circuit (CAFC), to reverse in-part the presiding administrative law judge's (ALJ's) final initial determination of October 24, 2003 in this investigation and has determined that the patents in issue are not unenforceable for patent misuse.)
ITC Issues General Exclusion Order, Four Cease and Desist Orders for Certain Recordable and Rewritable CDs, Etc.
Having reviewed the record in this investigation, including the parties' written submissions, the ITC has determined to issue a general exclusion order prohibiting the unlicensed entry for consumption of recordable and rewritable compact discs that infringe the claims in issue of the six patents asserted by Philips in this investigation.
The ITC has also determined to issue four cease and desist orders directed to domestic respondents Princo America Corporation; Gigastorage Corporation USA; Linberg Enterprise Inc.; and DiscsDirect.Com.
(The ITC also determined that the public interest factors listed in section 337(d), (f), and (g) do not preclude the issuance of the aforementioned general exclusion order.)
The ITC has also announced that it is terminating this investigation and has determined to grant the Philips' motion for leave to reply and to deny respondents' request to reopen the record for further discovery.
Bond of $0.06 Per Article During Presidential Review Period
The ITC states that the compact discs in question may be imported into the U.S. during the period of Presidential review under bond in the amount of $0.06 per article.
The ITC notes that the general exclusion order, cease and desist orders, and ITC opinion supporting its determination were delivered to the U.S. Trade Representative on February 5, 2007.
(U.S. government sources have previously stated that in accordance with 19 CFR 12.39(b)(3), if the President accepts this exclusion order (which is expected), importers or consignees of infringing articles entered under bond during the Presidential review period would be required to export or destroy such articles under U.S. Customs and Border Protection (CBP) supervision within 30 days after being notified to do so by the applicable port director or face liquidated damages in the full amount of the bond.)
ITC Explanation of Exclusion Orders
In an FAQ regarding section 337 investigations, the ITC has previously explained that a general exclusion order directs CBP to exclude all infringing articles without regard to source, whereas a limited exclusion order directs CBP to exclude all infringing articles that originate from a specified firm that was a respondent in the ITC investigation.
(See ITC notice for further details of this investigation. See ITT's Online Archives or 07/31/02 news, 02073125, for BP summary of the ITC notice on the institution of this investigation. See ITT's Online Archives or 03/23/04 news, 04032335, for BP summary of an ITC notice finding no violation of section 337 in this investigation.)
ITC Contact - Clara Kuehn (202) 205-3012
ITC Notice (Inv. No. 337-TA-474, FR Pub 02/09/07) available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-2196.pdf
ITCGeneral Exclusion Order (issued 02/05/07) available at http://edisweb.usitc.gov/edismirror/337-474/Violation/269103/310620/419/817ca1.pdf