On July 9, 2014, ALJ David P. Shaw issued Order No. 44 denying Respondents’ motion for summary determination of no infringement at the time of importation in Certain Multiple Mode Outdoor Grills and Parts Thereof (Inv. No. 337-TA-895).

By way of background, this investigation is based on a complaint filed by A&J Manufacturing, LLC and A&J Manufacturing, Inc. (collectively, “A&J”) alleging violation of Section 337 by several respondents in the importation and sale of certain multiple mode outdoor grills and parts thereof that infringe one or more claims of U.S. Patent Nos. 8,381,712 (the ‘712 patent), D660,646 and D662,773.  See our August 22, 2013 and September 23, 2013 posts for more details on the complaint and notice of investigation, respectively.

According to the Order, Respondents Char-Broil, LLC; Rankam Metal Products Manufactory Limited, USA, Zhejiang Fudeer Electric Appliance Co., Ltd.; Outdoor Leisure Products, Inc.; Academy Ltd. (d/b/a Academy Sports + Outdoors); Ningbo Huige Outdoor Products Co., Ltd.; GHP Group, Inc.; and The Brinkmann Corporation (the “Moving Respondents”) filed a motion for summary determination of no infringement at the time of importation.  A&J and the Commission Investigative Attorney filed responses opposing the motion.

In support of their motion, the Moving Respondents primarily relied on the Federal Circuit’s vacated opinion in Suprema v. ITC, 742 F.3d 1350 (Fed. Cir. 2013).  Specifically, the Moving Respondents argued that A&J could not establish that any of the accused products infringe any of the claims of the ‘712 patent at the time of importation since the accused products were imported in an unassembled state and thus required assembly after importation.  In the Order, ALJ Shaw noted as a threshold matter that the Federal Circuit ordered rehearing en banc and vacated the panel’s decision in Suprema on the same day that the Moving Respondents filed their instant motion.  ALJ Shaw further noted that an unassembled device may be found to infringe.  In any event, ALJ Shaw held that genuine issues of material fact exist and thus denied the Moving Respondents motion.