United States: Chief ALJ Bullock Grants Motion For Summary Determination Of Violation Of Section 337 In Certain Apparatus And Methods Of Opening Containers (337-TA-1255)

On December 27, 2021, Chief ALJ Charles E. Bullock issued the public version of Order No. 11 granting Complainant Draft Top, LLC's ("Draft Top") motion for summary determination of violation of section 337 by Respondents KKS Enterprises Co., Ltd. ("KKS"); Kingskong Enterprises Co., Ltd. ("Kingskong"); Du Zuojun; WN Shipping USA, Inc. ("WN Shipping"); Shuje Wei; Express Cargo Forwarded, Ltd. ("Express Cargo"); and Hou Wenzheng (collectively, the "Defaulting Respondents") in Certain Apparatus and Methods of Opening Containers  (Inv. No. 337-TA-1255).

By way of background, this investigation is based on a January 28, 2021 complaint filed by Draft Top alleging that nine entities unlawfully import/sell certain apparatus and methods of opening containers that are intentionally and willfully designed to be used, and are used, in a manner that infringes claim 12 of U.S. Patent No. 10,519,016 ("the '016 patent"). The accused products are can-opening devices designed to be used for the purpose of creating an open drinking container by removing the lid off the can. See  our March 16, 2021 post for more details regarding the complaint and Notice of Investigation. Respondents Tofba International, Inc. and Mintiml were terminated from the investigation based on withdrawal of the allegations in the complaint, and only the Defaulting Respondents remaining in the investigation.

According to the order, Chief ALJ Bullock found no genuine factual issue regarding importation of the accused products, infringement of claim 12 of the '016 patent by the accused products, and Draft Top's satisfaction of the technical and economic prong of the domestic industry requirement. Further, no party challenged the validity of the '016 patent. Therefore, the Chief ALJ granted Draft Top's motion for summary determination of violation of section 337 by the Defaulting Respondents.

In addition, Chief ALJ Bullock recommended issuance of a general exclusion order ("GEO") based on his findings that a GEO is necessary to prevent circumvention of limited exclusion orders, that there is a widespread pattern of unauthorized use, and that identifying the seller and importer of the accused products has proven difficult. Finally, the Chief ALJ recommended a bond value of 100% due to the lack of available information on pricing and royalty rates.

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