Three New Unfair Import Complaints

On April 10, 2006, ERBE Elektromedizin GmbH and ERBE USA filed a "Section 337" complaint at the U.S. International Trade Commission requesting that an unfair import investigation be instituted involving "Endoscopic Probes for Use in Argon Plasma Coagulation." The complaint has been designated as Docket No. 337-2479 for indexing in the Commission's database, and the proposed respondents are Canady Technology, LLC, Hampton, VA; Canady Technology Germany GmbH, Germany and KLS Martin GmbH & Co. KG, Germany.

On April 11, 2006, Amgen Inc. filed a "Section 337" complaint requesting that an unfair import investigation be instituted involving "Certain Products and Pharmaceutical Compositions Containing Recombinant Human Erythropoietin." This second complaint has been designated as Docket No. 337-2480 for indexing in the Commission's database. The proposed respondent(s) are Roche Holding, Ltd. Basel, Switzerland, F. Hoffmann-La Roche, Ltd., Basel, Switzerland, Roche Diagnostics GmbH, Penzberg, Germany, Roche Diagnostics GmbH, Mannheim, Germany and Hoffmann LaRoche, Inc. Nutley, New Jersey.

Also on April 11, 2006, Lexar Media, Inc filed a filed a "Section 337" complaint requesting that an unfair import investigation be instituted involving "Certain Flash Memory Chips, Flash Memory Systems, and Products Containing Same." This third complaint has been designated as Docket No. 337-2481 for indexing in the Commission's database. The proposed respondent(s) are. Toshiba Corporation, Tokyo, Japan, Toshiba America, Inc., New York, NY and Toshiba America Electronic Components, Inc., Irvine, CA.

Such complaints typically include an allegation of intellectual property infringement and a request that the infringing godds be excluded from entry into the United States. The Commission now has 30-35 days from the filing date of the complaints in which to decide whether to institute the investigation. Upon institution, the proposed respondent will be served with the Complaint via postal mail and an Administrative Law Judge will schedule discovery, conduct a trial, and issue a written "Initial Determination," usually within about 10 months. Due to the expedited nature of these proceedings, and availability of general exclusion orders affecting non-parties, it is important to notify any potential importers of similar products as soon as possible.

As discussed in "Unrecognized Risks of ITC Remedial Orders," by C. Larry O’Rourke, Thomas L. Jarvis, and Paul C. Goulet,

". . . Anyone’s products that fall within the scope of an ITC general exclusion order and infringe the IP rights at issue will be excluded from importation into the US market. In addition, a general exclusion order, like the limited exclusion order, may also be directed to downstream products.

The threshold step for protecting the US marketshare of imported goods is to actively monitor ITC investigations. There are several ways this may be accomplished. The ITC publishes its Notice of Investigation in the Federal Register, which identifies the complainant, each named respondent, the types of products at issue, and the asserted IP rights; for example, identification of the asserted claims of the patents at issue. Non-parties can actively monitor the Federal Register notices to identify cases involving products that they also manufacture, import, or sell after importation and that might be at risk of an exclusion order.

. . . All too often, non-parties are unaware of ITC investigations that can adversely affect their imported products. Even those that may be aware of an ITC case are often unaware of their opportunities to defend their imported products. However, more informed legal departments with counsel that monitor ITC cases can preserve their day in court and defend their share of the lucrative US markets. . . ."

Click here for an audio-visual Internet presentation on "Unfair Import Investigations at the U.S. International Trade Commission."