On July 31, 2017, ALJ Dee Lord issued Order No. 10 in Certain Basketball Backboard Components and Products Containing Same (Inv. No. 337-TA-1040).
By way of background, this investigation is based on a December 30, 2016 complaint filed by Lifetime Products, Inc. of Clearfield, Utah alleging violation of Section 337 by way of unlawful importation into the U.S., selling for importation, and/or selling within the U.S. after importation certain basketball backboard components and products containing the same that infringe one or more claims of Lifetime’s U.S. Patent Nos. 7,749,111; 8,845,463; and 8,852,034. See our January 12, 2017 and February 10, 2017 posts for more details on the complaint and Notice of Investigation, respectively.
According to Order No. 10, ALJ Lord determined to grant Complainant’s motion to strike the eighth affirmative defense asserted by Respondents Russell Brands LLC and Reliable Sports Equipment (Wujiang) Co. Ltd. Specifically, ALJ Lord determined that:
I agree with Lifetime that the "public interest" affirmative defenses are improper. The public interest factors are set forth in 19 U.S.C. §§ 1337(d)(1) and (f)(1). In accordance with the statute, the public interest factors are considered only in the issuance of a remedy; they are separate from the determination on violation described in the Notice of Investigation. The Commission did not delegate public interest issues to the Administrative Law Judge in this investigation, and therefore, "[a ]ny consideration of whether or not relief is in the public interest is not available." Certain Dynamic Random Access Memory Devices & Prods. Containing Same, Inv. No. 337-TA-595, Order No.7 at 6 (June 1,2007). Respondents' "public interest" affirmative defenses are improper and should therefore be stricken.