On November 9, 2015, the International Trade Commission (“Commission”) issued a notice determining to review-in-part ALJ Theodore R. Essex’s Initial Determination (“ID”) finding no violation of Section 337 in Certain Beverage Brewing Capsules, Components Thereof, and Products Containing the Same (Inv. No. 337-TA-929).

By way of background, the investigation is based on an August 4, 2014 complaint filed by ARM Enterprises, Inc. and Adrian Rivera alleging violation of Section 337 in the importation into the U.S. and sale of certain beverage brewing capsules, components thereof, and products containing the same that infringe one or more claims of U.S. Patent No. 8,720,320 (“the ‘320 patent”).  See our August 6, 2014 and September 11, 2014 posts for more details on the complaint and Notice of Investigation, respectively. 

On September 4, 2015, ALJ Essex issued his final ID determining that no violation of Section 337 has occurred because Complainants failed to prove all elements of infringement.  Specifically, “[t]he ID found that Respondents were not liable for direct infringement because direct infringement required the combination of Respondents’ products with a third-party single serve beverage brewer, and that Respondents were not liable for induced or contributory infringement because they did not have pre-suit knowledge of the ‘320 patent.”

According to the notice, the Commission has determined to review the following aspects of the ID:  “(1) the ID’s findings on the construction, infringement, and technical prong of the domestic industry requirement for the limitation ‘a needle-like structure, disposed below the base’; (2) the ID’s findings on induced and contributory infringement; (3) the ID’s findings that the asserted claims are not invalid for a lack of written description, as anticipated by Beaulieu and the APA, or as obvious; and (4) the ID’s findings on the economic prong of the domestic industry requirement.”

The parties were asked to brief the discrete issue of how the noninfringement finding in this case is impacted by the Commission’s recent determination that knowledge of a patent for contributory infringement can be satisfied through service of a Section 337 complaint.  See Certain Television Sets, Television Receives, Television Tuners, and Components Thereof, Inv. No. 337-TA-910, at 41-43 (public version dated Oct. 30, 2015).  The Commission also requested written submissions on the issues of remedy, the public interest, and bonding.

Written submissions are due November 20, 2015, with reply submissions due by December 1, 2015.