WASHINGTON, D.C., LOS ANGELES, and BEIJING, March 1, 2007 - The U.S. International Trade Commission (ITC) has decided for the second time to terminate its investigation concerning whether foreign battery makers infringe the patent of Energizer Holdings, Inc. and Eveready Battery Company. 

On February 23, 2007, the ITC concluded that Eveready’s U.S. Patent No. 5,464,709 is invalid and that, even if the patent were valid, the products of the respondent China battery companies would not infringe its claims. The decision allows Chinese battery makers to continue importing into the U.S. zero-mercury-added alkaline batteries, which cause less environmental damage than batteries with mercury added. China is the largest supplier of non-rechargeable or primary batteries, providing more than 33 percent of the global battery output. Its battery industry is worth more than $4 billion.

Eveready, which brought its complaint to the ITC in April 2003, had sought an order prohibiting imports of primary batteries. Eveready previously had sued battery industry competitors Duracell, Rayovac and Matsushita in separate federal court actions charging them with patent infringement. Each of these lawsuits was settled. According to Eveready itself, “many of the largest battery manufacturers in the world paid significant sums of money to Eveready to take a license” for the ‘709 patent. These licensees included Duracell, Rayovac, Matsushita, FDK, Gold Peak and Hitachi Maxell, among others.

The Commission previously determined on October 1, 2004, to terminate the investigation with a finding of no violation based on its ruling that the asserted claims of the ‘709 patent were invalid for indefiniteness. Eveready appealed the Commission’s final determination to the U.S. Court of Appeals for the Federal Circuit, which reversed the finding of indefiniteness but adopted respondents’ proposed claim construction.