On August 23, 2016, ALJ MaryJoan McNamara issued the public version of Order No. 10 (dated August 18, 2016) in Certain Composite Aerogel Insulation Materials and Methods for Manufacturing the Same (Inv. No. 337-TA-1003).
By way of background, this investigation is based on a May 5, 2016 complaint filed by Aspen Aerogels, Inc. (“Aspen”) alleging violation of Section 337 by way of unlawfully importing into the U.S., selling for importation, and/or selling within the U.S. after importation certain composite aerogel insulation materials that infringe—or are made, produced, or processed by a process that infringes—one or more claims of U.S. Patent Nos. 7,078,359; 7,399,439; 6,989,123; 7,780,890; and 9,181,486. See our May 5, 2016 and June 8, 2016 posts for more details on the complaint and Notice of Investigation, respectively.
According to Order No. 11, Respondent Guangdong Alison Hi-Tech Co., Ltd. (“Alison”) filed a motion in which it objected to the disclosure of its confidential business information (“CBI”) to Aspen’s proposed experts, Dr. Ann M. Anderson and Dr. David A. Schiraldi. In the order, ALJ McNamara first noted that in determining whether, to whom, and under what circumstances to release CBI, the Commission balances several factors including “the party’s need for the confidential information sought in order to adequately prepare its case, the harm that the disclosure would cause the party submitting the information, and the forum’s interest in maintaining the confidentiality of the information sought.” Akzo N V v. U.S. Int'l Trade Comm’n, 808 F.2d 1471, 1484 (Fed. Cir. 1986). After conducting an August 11, 2016 teleconference, ALJ McNamara determined as follows:
After hearing and considering all the parties' arguments, [ ] Alison’s objections to the disclosure of its CBI to Dr. David A. Schiraldi were determined to lack legal and factual substance. Accordingly, Respondent’s motion that Dr. Schiraldi be denied access to [ ] Alison’s CBI was denied. See Certain Crawler Cranes and Components Thereof, Inv. No. 337-TA-887, Order No. 11 at 3 (Dec. 18, 2013) (objection improper where investigation involved “crawler cranes” but expert’s former employer made and sold “rough terrain cranes” and expert had agreed to be bound by the protective order. However, [ ] Alison’s objections to the disclosure of its CBI to Dr. Ann M. Anderson were considered to have merit. Therefore, [ ] Alison’s motion that Dr. Anderson be denied access to its CBI was granted. Consequently, Complainant may not use Dr. Anderson as one of its experts at least in this Investigation. See Symantec Corp. v. Acronis Corp., 2012 WL 3582974, at *3 (N.D. Cal. Aug. 20, 2012) (denying disclosure of confidential information because of proposed consultant’s ongoing work in the relevant subjection area).