On April 4, 2014, Chief ALJ Charles E. Bullock issued the public version of Order No. 41 (dated March 14, 2014) in Certain Tires and Products Containing Same (Inv. No. 337-TA-894).  In the Order, ALJ Bullock denied Complainants Toyo Tire & Rubber Co., Ltd., Toyo Tire Holdings of Americas Inc., Toyo Tire U.S.A. Corp., Nitto Tire U.S.A. Inc., and Toyo Tire North America Manufacturing Inc.’s (collectively, “Toyo”) motion for summary determination of a violation of Section 337 by reason of infringement of the asserted patents by eight defaulting Respondents.

By way of background, Toyo’s complaint in the investigation had only requested a limited exclusion order and/or cease and desist orders, and had not requested a general exclusion order (“GEO”).  See our August 15, 2013 post for more details.  According to Order No. 41, Toyo had moved to amend its complaint to seek a GEO more than three months after the institution of the investigation, but ALJ Bullock had denied that motion after finding that Toyo lacked good cause to amend.  However, in a subsequent motion to terminate Respondent Shandong Hengyu Science and Technology Co., Ltd. (“Shandong Hengyu”)—the last remaining Respondent in the investigation—Toyo stated that it still intended to seek a GEO.  In making this assertion, Toyo cited to Commission Rule 210.16(c)(2), which requires that “[i]n any motion requesting the entry of default or the termination of the investigation with respect to the last remaining respondent in the investigation, the complainant shall declare whether it is seeking a general exclusion order.”  Toyo then filed the instant motion for summary determination of violation based on infringement by eight defaulting Respondents, and sought a GEO.

In the Order, ALJ Bullock found that Toyo’s statement in its motion to terminate Shandong Hengyu did not give Toyo the ability to seek a GEO in the investigation in spite of the ALJ’s previous order denying Toyo’s motion to amend the complaint.  In particular, ALJ Bullock found that Commission Rule 210.16(c)(2) presupposes that a GEO is an available form of relief in the investigation (i.e., that a GEO was requested in the complaint or brought in via a successful motion to amend the complaint), which was not the case in the instant investigation.  ALJ Bullock further found that the instant motion for summary determination of violation of Section 337 based on infringement by the eight defaulting Respondents was not the proper mechanism for Toyo to seek further relief, and that instead Toyo could file a declaration with the Commission pursuant to Commission Rule 210.16(c)(1).  Accordingly, ALJ Bullock denied Toyo’s motion for summary determination.