On September 19, 2014, the International Trade Commission ("the Commission") issued a notice that it determined to review-in-part ALJ David P. Shaw's Initial Determination ("ID") finding a violation of Section 337 in Certain Crawler Cranes and Components Thereof (Inv. No. 337-TA-887).
By way of background, this investigation is based on a June 12, 2013 complaint filed by Complainant Manitowoc Cranes, LLC ("Manitowoc") alleging violation of Section 337 by Respondents Sany Heavy Industry Co., Ltd. and Sany America, Inc. (collectively, "Sany") in the importation into the U.S. and sale of certain crawler cranes and components thereof that infringe one or more claims of U.S. Patent Nos. 7,546,928 (the '928 patent) and 7,967,158, and that were designed and manufactured using Manitowoc's misappropriated trade secrets. See our June 14, 2013 and July 15, 2013 posts for more details on the complaint and Notice of Investigation, respectively.
According to the notice, ALJ Shaw determined that a violation of Section 337 has been found in this investigation. Specifically, ALJ Shaw determined that Manitowoc demonstrated (i) that certain accused products infringe claims of the '928 patent, and (ii) misappropriation of certain asserted trade secrets had occurred. See our July 14, 2014 post summarizing the ID.
According to the September 19, 2014 notice, Manitowoc, Sany, and the Commission Investigative Staff each filed petitions for review, and after reviewing the submissions, the Commission determined to review the ALJ's findings with respect to (1) importation of the accused products; (2) infringement of the asserted patents; (3) estoppel; (4) the technical prong of the domestic industry requirement; and (5) the asserted patents.
Accordingly, the parties were requested to brief their positions on the issues under review, particularly in response to eighteen specific questions posed by the Commission. The first three questions are directed to the nuances of sales for importation, the fourth to whether various case law remains applicable in view of the Supreme Court's decision in Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111 (2014), the fifth through seventh to infringement, and the last ten to issues related to trade secrets.
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.
Written submissions are due by October 1, 2014, with reply submissions due by October 8, 2014.