On February 26, 2014, the International Trade Commission (the “Commission”) issued a Notice determining to review in part an Enforcement Initial Determination (“EID”) issued by ALJ Thomas B. Pender on January 10, 2014 finding a violation of a consent order in Certain Dimmable Compact Fluorescent Lamps and Products Containing Same (Inv. No. 337-TA-830).

By way of background, the Commission instituted an investigation based on a complaint filed by the Complainants in this investigation, Andrzej Bobel and Neptun Light, Inc. (collectively, “Neptun”), alleging the importation into the U.S., sale for importation, and sale within the U.S. after importation of certain dimmable compact fluorescent lamps (“CFLs”) that infringe claim 9 of U.S. Patent No. 5,434,480 (the ‘480 patent).  The complaint named numerous respondents, including MaxLite, Inc. (“MaxLite”).  On July 25, 2012, the Commission terminated the investigation with respect to MaxLite and entered a consent order preventing MaxLite from importing dimmable CFLs that infringe claim 9 of the ‘480 patent.  MaxLite petitioned the Commission for a modification of the consent order based on a district court proceeding regarding a covenant not to sue.  Additionally, Neptun filed a complaint requesting that the Commission institute a formal proceeding to investigate a violation of the consent order.  The Commission instituted a consolidated formal enforcement and modification proceeding to determine whether MaxLite was in violation of the consent order.  In the EID, ALJ Pender found that MaxLite’s accused CFL bulbs infringed claim 9 of the ‘480 patent, but that Neptun had not demonstrated infringement by MaxLite’s “dimmable CFL Faux Cans” (“Faux Cans”).  See our January 14, 2014 post for more details on this investigation.

According to the Notice, Neptun filed a petition for review of the ALJ’s determination regarding claim construction and noninfringement by the Faux Cans.  After examining the record of the investigation, including the EID and parties’ submissions, the Commission determined to review the EID in part.  In particular, the Commission determined to review ALJ’s construction of the “resonant boosting circuit” limitation and ALJ Pender’s findings that Neptun did not demonstrate infringement by the Faux Cans because Neptun failed to adequately show that (i) there is resonance between the accused boosting capacitor and boosting inducer, and (ii) “the boosting capacitor stores and releases energy to improve the power factor.” 

The Notice also states that the parties are requested to provide further briefing regarding the issues under review.  Additionally, the Notice provides that the Commission is particularly interested in responses to the questions listed in the Notice.  Written submissions are due by March 10, 2014 and reply submissions are due by March 17, 2014.