On February 7, 2014, the ITC issued a notice instituting an advisory opinion proceeding in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).
By way of background, the investigation was based on a December 2, 2011 complaint filed by Standard Innovation Corporation and Standard Innovation (US) Corp. (collectively, “SIC”) alleging violation of Section 337 in the importation into the U.S. and sale of certain kinesiotherapy devices and components thereof that infringe one or more claims of U.S. Patent Nos. 7,931,605 and D605,779. See our January 9, 2012 post for more details on the complaint. SIC identified twenty-one proposed respondents in the complaint, including Lelo Inc. and Leloi AB (collectively, “Lelo”). On June 17, 2013, the ITC issued a final determination finding a violation of Section 337 based on the infringement of the ’605 patent. Based on evidence of a pattern of violation and difficulty ascertaining the source of infringing products, the Commission issued both a general exclusion order against certain kinesiotherapy devices that infringe the asserted claims of the ’605 patent, as well as cease and desist orders against certain respondents, including Lelo. See our June 27, 2013 post for more details.
According to the notice, Lelo filed a request on September 30, 2013 asking the ITC to institute an advisory opinion proceeding as to whether Lelo’s new kinesiotherapy devices are covered by the general exclusion order or the cease and desist order issued against Lelo. SIC opposed the request. Finding Lelo’s request in compliance with Commission Rule 210.79, the ITC determined to institute the requested advisory opinion proceeding, naming SIC and Lelo as parties thereto. Further, the notice stated that an advisory opinion will issue by June 30, 2014.