On July 9, 2014, the International Trade Commission (“the Commission”) issued a notice that it determined to review Chief ALJ Charles E. Bullock’s Initial Determination (“ID”) finding a violation of Section 337 in Certain Windshield Wiper Devices and Components Thereof (Inv. No. 337-TA-881).

By way of background, this investigation was instituted by the Commission on June 11, 2013 based on a complaint filed by Federal-Mogul Corporation and Federal-Mogul S.A. (collectively, “Federal-Mogul”) alleging violation of Section 337 by Respondents Trico Corporation, Trico Products, and Trico Components SA de CV (collectively, “Trico”) in the importation and/or sale of certain windshield wiper devices and components thereof that infringe claims 1-14 of U.S. Patent No. 8,347,449 (“the ‘449 patent”).  See our May 13, 2013 and June 10, 2013 posts for more details on the complaint and notice of investigation, respectively.

ALJ Bullock issued his final ID on May 8, 2014, finding that Trico’s accused products infringe claims 1 and 5 of the ’449 patent, but not claims 2-4 and 6-14.  The ALJ also found that the asserted claims of the ’449 patent are not invalid for obviousness or lack of written description.  The ALJ further found that Federal-Mogul satisfied the domestic industry requirement.  See our May 29, 2014 post for more details on the ID.

According to the July 9, 2014 notice, the Commission determined to review the ALJ’s omission of the caveat “without damage” in the construction of the limitations “detachable therefrom,” “detachably engage,” “detachably connected,” and “releasably secure” recited in claims 1, 2, 8 and 12.  The Commission will also review the construction of the “clamping” limitation recited in claims 2, 3, 6, 7 and 12.  With respect to infringement, the Commission will review the ALJ’s finding that the accused Ford F-Series and Chrysler 200 wiper blades satisfy the “detachable” limitation of claims 1 and 5, as well as the finding of no infringement with respect to claims 2-4 and 6-14.  Further, the Commission will review the finding that the asserted domestic industry products satisfy the technical prong with respect to claim 1.  Finally, the Commission will review the finding that Trico failed to show that the asserted claims of the ’449 patent are obvious in view of U.S. Patent No. 5,713,099 in combination with U.S. Patent No. 6,799,348.

Accordingly, the parties were requested to brief their positions on the issues under review, particularly in response to the following questions:

  1. Whether the claim limitations “clamping features,” “clamping members,” and “clamping edge portions” should be construed independently of the generic term “clamping” and, if so, how the Commission should construe those limitations.
  2. Whether the accused wiper blades satisfy the “clamping features” limitation in claim 2 and the “clamping members” limitation in claims 3, 6 and 7 under the proper construction of those limitations, including whether the terms “clamping features” and “clamping members” should be construed independently of the generic term “clamping.”
  3. Whether the accused wiper blades infringe claims 8-14 in light of the Commission’s decision to review the construction of the limitations “detachably connected” (relevant to claims 8-11), “releasably secure” (relevant to claims 12-14), and “clamping edge portions” (relevant to claims 12-14).  The parties were also asked to address whether “clamping edge portions” should be construed independently of the generic term “clamping.”

Finally, the Commission asked the parties to address the form of remedy, if any, that should be ordered.  In particular, the Commission requested written submissions addressing the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers.