On December 7, 2016, the Commission affirmed Judge McNamara’s Initial Determination finding that the economic prong of domestic industry was satisfied in Certain Composite Aerogel Insulation Materials and Methods for Manufacturing Same, Inv. No. 337-TA-1003. However, the Commission determined to review and strike the portion of Judge McNamara’s decision relating to the allocation of expenses by asserted patent.

The Case

Judge McNamara issued the public version of her Initial Determination on December 16, 2016, finding that Complainant Aspen Aerogel, Inc. satisfies the economic prong of the domestic industry requirement with respect to all five asserted patents under 19 U.S.C. § 1337(a)(3)(A) and (B) based upon its manufacturing facilities located in the United States. In her Initial Determination, Judge McNamara noted that “Complainant has provided more than sufficient evidence that it satisfies the economic prong of the domestic industry requirement with respect to Sections 337(a)(3)(A) and (B) through its ‘significant’ investments in plant and equipment, and ‘significant’ investments in labor and capital” and that Respondents did “not contest that Complainant is able to satisfy the economic prong of the domestic industry requirement.” Complainant supported its motion for summary determination with a detailed allocation of expenditures between the five asserted patents that Judge McNamara adopted in her Initial Determination.

The Commission determined, sua sponte, to review-in-part Judge McNamara’s order. On December 7, 2016, it issued a notice affirming summary determination, but striking the portion of the Initial Determination detailing the allocation of expenses between the patents.


It is not clear why the Commission determined to strike the allocation analysis from the ALJ’s Initial Determination. The Commission did not provide its rationale in the notice and it has not issued an opinion. However, it is possible that the Commission did not want the Initial Determination cited in future investigations as requiring an in-depth allocation analysis to successfully demonstrate the economic prong of domestic industry. This would be consistent with Commission precedent requiring the complainant to present some evidence of allocation of expenditures by patent, but acknowledging that a precise accounting is not necessary.