On May 27, 2014, ALJ David P. Shaw issued Order No. 40 denying a motion for summary determination of invalidity 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 over 20 proposed 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, 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, and The Brinkmann Corporation (the “Moving Respondents”) filed a motion for summary determination of invalidity of asserted U.S. Patent Nos. D660,646 and D662,773 (collectively, the “asserted design patents”).  A&J opposed the motion and the Commission Investigative Staff supported the motion.

The Moving Respondents argued that the two asserted design patents are invalid as a matter of law because they are anticipated under 35 U.S.C. § 102(b) by A&J’s own grill product which was sold in the U.S. in 2007.  ALJ Shaw determined that genuine issues of fact exist concerning certain photographs of certain grills which the Moving Respondents argued demonstrate that A&J own grill product was sold in the U.S. in 2007.  Accordingly, ALJ Shaw denied the motion.