On December 10, 2014, Otter Products LLC filed a Complaint in the U.S. Court of International Trade (“CIT”) challenging a decision by U.S. Customs And Border Protection (“CBP”) excluding from entry and requiring redelivery of certain of Otter’s protective cases on the ground that they were covered by a general exclusion order (“GEO”) issued by the Commission in Certain Cases For Portable Devices, Inv. Nos. 337-TA-861, -867. Otter was not named as a Respondent in these consolidated investigations. The named Respondents in the investigations were either terminated from the investigation or defaulted; the Commission issued a GEO without making any final determination as to the validity of the asserted patent. The Complainant, Speculative Product Design LLC, also filed a patent infringement lawsuit against Otter in the Northern District of California. In response, Otter filed an inter partes review (“IPR”) of the asserted patent at the PTO; appealed the Commission’s decision to the Federal Circuit and sought two stays of the GEO, both of which the Federal Circuit denied; and commenced an action in the CIT seeking declaratory judgments that (a) the asserted patent was not infringed, (b) CBP violated its own rules in excluding Otter’s products, and (c) the asserted patent was invalid for the reasons set forth in the IPR proceeding. Otter also sought a temporary restraining order and preliminary injunction preventing CBP from requiring redelivery of its products. The CIT held that it had jurisdiction over CBP’s decision to exclude Otter’s products pursuant to 28 U.S.C. § 1581(a), but denied Otter’s motion for preliminary injunction for lack of irreparable injury. The CIT also initially stayed the action with respect to Otter’s non-infringement and invalidity claims pending resolution of the issues in the N.D. Cal, PTO, and Federal Circuit, but allowed Otter’s challenges to CBP’s procedures to proceed. Based on agreement among the parties, the CIT later stayed the case in its entirety. This is the second recent case filed in the CIT challenging CBP’s exclusion of articles pursuant to a Commission exclusion order. The other case, Corning Gilbert Inc. v. United States, was reported in a King & Spalding Client Alert, available here.