On November 10, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ Robert K. Rogers, Jr. on August 31, 2011 denying a motion for temporary relief in Certain Muzzle-Loading Firearms and Components Thereof (Inv. No. 337-TA-777).  On review, the Commission determined to take no position on the likelihood of success on the merits, the balance of hardships, and the public interest.

By way of background, the Complainants in this investigation are Thompson/Center Arms Company, Inc. and Smith & Wesson Corp. (collectively, the “Complainants”), and the Respondents are Dikar Sociedad Cooperativa Limitada, Blackpowder Products, Inc., Connecticut Valley Arms, Bergara Barrels North America, Bergara Barrels Europe, Ardesa Firearms (“Ardesa”), and Traditional Sporting Goods, Inc. d/b/a Traditions Sporting Firearms (“Traditions”).  On May 11, 2011, the Complainants filed a complaint requesting that the ITC commence an investigation pursuant to Section 337 concerning certain muzzle-loading firearms and components thereof that allegedly infringe U.S. Patent Nos. 7,908,781, 7,814,694 (the ‘694 patent), 7,140,138, 6,604,311, 5,782,030, and 5,639,981. 

With their complaint, the Complainants also filed a motion for temporary relief directed only to Traditions and Ardesa (collectively, the “TEO Respondents”) that requested a temporary limited exclusion order and temporary cease and desist orders.  By stipulation of the parties, the motion for temporary relief was ultimately limited to the alleged infringement of certain claims of the ‘694 patent.  On August 31, 2011, ALJ Rogers issued the ID denying the Complainants’ motion for temporary relief.  In the ID, ALJ Rogers found that the Complainants had not demonstrated that they would suffer irreparable harm and that the lack of irreparable harm precluded temporary relief in the investigation.  The ALJ also found that there was a likelihood of success on the merits with respect to claim 10 of the ‘694 patent, that the balance of hardships did not favor either party, and that the public interest would not preclude preliminary relief.  See our November 15, 2011 post for more details.

According to the November 10 notice, the TEO Respondents filed opening comments on the ID on September 12, 2011.  The Complainants submitted reply comments on September 14, 2011.  The comments did not take issue with the ALJ’s findings regarding the lack of irreparable harm.  Instead, the comments principally dealt with the Complainants’ likelihood of success on the merits, challenging various aspects of the ALJ’s analyses of infringement and the balance of hardships.

After examining the record of the investigation, including the ID and the subsequent comments and reply comments, the Commission found that irreparable harm had not been demonstrated and therefore determined not to review the ID’s finding of lack of irreparable harm and the ID’s denial of temporary relief.  The Commission further found that because irreparable harm is dispositive, the Commission need not evaluate the remaining temporary relief factors.  Accordingly, the Commission determined to review the ID’s findings on the likelihood of success, the balance of hardships, and the public interest but to take no position on those findings.