On February 1, the U.S. International Trade Commission (USITC) announced that it had voted to institute a Section 337 investigation of certain imported batteries and products containing these batteries. The complaint in the case alleges violations of Section 337 on the basis that the products in question infringe certain patents. (Section 337, Tariff Act of 1930, provides for “Unfair import … investigations [that] most often involve claims regarding intellectual property rights, including allegations of patent infringement and trademark infringement by imported goods.”) The complainants are seeking to exclude these imported products from the U.S. market.
The formal Notice of Institution of Investigation is here. In its Notice, the USITC explained that the USITC’s Chief Administrative Law Judge will now assign the case to one of the USITC’s administrative law judges (ALJ), who will schedule and hold an evidentiary hearing. The ALJ will make an initial determination as to whether there is a violation of Section 337. That initial determination will then be subject to review by the USITC. The Notice further states that: “The USITC will make a final determination in the investigation at the earliest practicable time. Within 45 days after institution of the investigation, the USITC will set a target date for completing the investigation.”
The full complaint was filed on December 30, 2020 and is available here. It contains the following factual and legal arguments from the complainants.
First, the products at issue are certain rechargeable batteries, described as follows:
The articles that are the subject of the requested remedial orders are rechargeable batteries intended for use with battery-powered products, including, but not limited to, the RYOBI™ 18V ONE+ SYSTEM® (the “RYOBI™ ONE+ SYSTEM®”). The RYOBI™ ONE+ SYSTEM® is an integrated suite of over 100 unique power tool products sold by One World under the RYOBI™ brand. Every power tool in the RYOBI™ ONE+ SYSTEM® relies on the 18V ONE+® battery platform, which is primarily comprised of cordless, 18-volt, lithium-ion rechargeable batteries. These 18V ONE+® batteries can be used with any of the power tools in the RYOBI™ ONE+ SYSTEM®. The articles that are subject to the requested remedial orders are intended as low-cost substitutes for genuine RYOBI™ ONE+® batteries.
The complainants are One World Technologies, Inc. and Techtronic Power Tools Technology Ltd. The product website is here.
With regard to the respondents, the complaint offers a general description and then lists a number of companies. The general description states: “Respondents include manufacturers, distributors, retailers, and other companies and/or natural persons that import, sell for importation, and/or sell within the United States after importation certain batteries that infringe one or more of the Asserted Patents … .” In its announcement, the USITC identified the following respondents:
Darui Development Limited of Yakeshi, China;
Dongguan Xinjitong Electronic Technology Co., Ltd., of Dongguan City, China;
Shenzhen Laipaili Electronics Co., Ltd., of Shenzhen, China;
Shenzhen Liancheng Weiye Industrial Co., Ltd., of Shenzhen, China;
Shenzhen MingYang Creation Electronic Co., Ltd., of Shenzhen, China;
Shenzhen Ollop Technology Co. Ltd., of Shenzhen, China;
Shenzhen Rich Hao Yuan Energy Technology Co., Ltd., of Shenzhen, China;
Shenzhen Runsensheng Trading Co., Ltd., of Shenzhen, China;
Shenzhen Saen Trading Co., Ltd., of Shenzhen, China;
Shenzhen Shengruixiang E-Commerce Co., Ltd., of Shenzhen, China;
Shenzhen Tuo Yu Technology Co., Ltd., of Shenzhen, China;
Shenzhen Uni-Sun Electronics Co., Ltd., of Shenzhen, China; and
Shenzhen Vmartego Electronic Commerce Co., Ltd., of Shenzhen, China.
The patent infringements are described broadly in the complaint as follows:
V. UNLAWFUL AND UNFAIR ACTS OF THE PROPOSED RESPONDENTS
78. Respondents have engaged in unlawful and unfair acts including the sale for importation into the United States, the importation into the United States, and/or the sale within the United States after importation of accused battery packs that infringe one or more of the Asserted Patents. …
79. Each of the Respondents’ products directly infringe one or more of the Asserted Patents because, in the eye of an ordinary observer and giving such attention as a purchaser usually gives, the designs of the Respondent’s battery packs are substantially the same as the design embodied and claimed in the Asserted Patents, such that an ordinary observer would be deceived into believing that Respondents’ designs are the same as the designs embodied and claimed in the Asserted Patents.
The complaint follows with more specific details on these infringements.
The relief requested by the complainants is as follows:
C. Issue a permanent general exclusion order, pursuant to 19 U.S.C. § 1337(d), forbidding entry into the United States all battery packs that infringe the ’868, ’353, and/or ’944 patents;
D. In the alternative, issue a permanent limited exclusion order, pursuant to 19 U.S.C. § 1337(d)(1), forbidding entry into the United States all battery packs, made by or on behalf of Respondents, that infringe the ’868, ’353, and/or ’944 patents;
E. Issue permanent cease and desist orders, pursuant to 19 U.S.C. § 1337(f), directing each Respondent, or other acting on its behalf, to cease and desist from importing, marketing, advertising, demonstrating, distributing, warehousing inventory for distribution, selling, offering for sale, using, or transferring (except for export) battery packs that infringe the ’868, ’353, and/or ’944 patents;
F. Impose a bond, pursuant to 19 U.S.C. § 1337(j), upon importation of any battery packs that infringe the ’868, ’353, and/or ’944 patents during the Presidential review period;
The Federal Register notice for the institution of the investigation is here.