On February 23, 2016, ALJ Theodore R. Essex issued Order No. 8 (originally dated February 11, 2016) in Certain Resealable Packages With Slider Devices (Inv. No. 337-TA-962).
By way of background, this investigation is based on a June 17, 2015 complaint filed by Reynolds Presto Products Inc. alleging violation of Section 337 in the importation into the U.S. and sale of certain resealable packages with slider devices that infringe one or more claims of U.S. Patent Nos. 6,427,421; 6,524,002; and 7,311,443. See our June 17, 2015 and July 17, 2015 posts for more details on the complaint.
On January 27, 2016, Presto filed a motion for summary determination that it satisfies the economic prong of the domestic industry requirement under 19 U.S.C. § 1337(a)(3)(A)-(C). The Commission Investigative Staff (“OUII”) filed a motion supporting Presto’s motion with respect to § 1337(a)(3)(A) and (B) only. Respondents did not oppose Presto’s motion.
19 U.S.C. § 1337(a)(3)(A) and (B)
As an initial matter, ALJ Essex found that Presto satisfied the economic prong under § 1337(a)(3)(A) and (B). The ALJ based his decision on evidence showing that Presto has manufacturing facilities in the U.S. that manufacture Presto slider bags, and that those facilities are responsible for the entire production of Presto’s slider bags. Additionally, the ALJ found that facility plant and labor expenditures for Presto’s slider bags were sufficient to satisfy the economic prong of the domestic industry requirement under subsections (A) and (B), finding that the investments were significant in relation to the articles protected by the intellectual property right.
19 U.S.C. § 1337(a)(3)(C)
ALJ Essex further found that Presto had not put forth sufficient evidence to show that it satisfied the economic prong requirement under subsection (C). Notably, OUII had argued that Presto’s explanation with regard to satisfying subsection (C) was insufficient to show that Presto made “substantial” investments within the meaning of the statute. Presto had contended that its development work related to the relevant slider bags took place on production lines in certain of its facilities in the U.S. Presto admitted that it did not have separate research and development facilities and that it did not break up its expenditures by research and development because much of Presto’s research and development is done ad hoc on the production lines. The ALJ found that Presto failed to provide any specific details of its alleged research and development. Further, the ALJ determined that Presto’s contentions under subsection (C) were not supported by evidence because Presto did not provide an explanation for its estimates of research and development and because Presto does not have specific research and development personnel.