On October 1, 2014, the International Trade Commission ("the Commission") issued the public version of its opinion in Certain Sulfentrazone, Sulfentrazone Compositions, and Processes for Making Sulfentrazone (Inv. No. 337-TA-914).

By way of background, the investigation is based on a complaint filed by FMC Corp. ("FMC") alleging the violation of Section 337 by Summit Agro USA, LLC, Summit Agro North America, Holding Corporation (collectively, "Summit"), Nutrichem Co., Ltd. ("Nutrichem"), and Jiangxi Heyi Chemicals Co., Ltd. ("Heyi") (collectively, "Respondents") in the importation into the U.S., sale for importation, or sale after importation of certain sulfentrazone, sulfentrazone compositions, and processes for making sulfentrazone that infringe one or more claims of U.S. Patent No. 7,169,952 (the '952 patent).  See our March 6, 2014 and April 11, 2014 posts for more details on the complaint and Notice of Investigation, respectively.  When filing the complaint, FMC moved for temporary relief under subsection (e) of Section 337. 

On August 12, 2014, ALJ Dee Lord issued an Initial Determination ("ID") denying FMC's motion for temporary relief because FMC did not show (1) a likelihood of success on the merits, (2) that it would suffer irreparable harm, (3) that the balance of hardships would favor FMC, and (4) that the public interest would not be disserved if temporary relief is granted.  See our September 10, 2014 post for additional details.

FMS filed comments contending that the ALJ erred by denying the motion, and Respondents and the Commission Investigative Staff ("OUII") filed responses in opposition.

After reviewing the ID, the comments, responses, and the record, the Commission has determined to deny FMC's motion for temporary relief, thereby affirming-in-part and modifying-in-part the ID.

According to the opinion, FMC's comments specifically challenged the likely claim construction of the limitations "in the presence of N,N-dimethylformamide," "a temperature in the range of about 120º C to about 160º C, and "about three to about seven hours," and the resulting likelihood of succeeding on the issues of literal infringement and infringement under the doctrine of equivalents based on these constructions.  Although the comments also addressed validity and domestic industry, the Commission's opinion did not discuss these issues.

The Commission determined to modify the supporting reasoning for the likely claim construction of "a temperature in the range of about 120º C to about 160º C, and "about three to about seven hours," while affirming the ID's likely constructions for these limitations.

Specifically, ALJ Lord found that the term "a temperature in the range of about 120º C to about 160º C" was likely to be construed to mean "at a temperature in the range of 120º C (+/- 2.5º C) to 160º C (+/- 2.5º C)."  The Commission agreed with this interpretation, noting that the specification and claims support a finding that "about" will likely be interpreted narrowly in the context of a temperature limitation, as a 5º C difference is shown to be "meaningful in the context of the invention" and would significantly impact chemical reaction rates.  However, the Commission held that the ALJ erred by relying on the doctrine of claim differentiation to support her construction, and thus modified the reasoning as set forth above.

ALJ Lord found that the term "about three to seven hours" was likely to be construed to mean "three (+/- 30 minutes) to seven (+/- 30 minutes) hours."  As with the temperature limitation, the Commission determined that "about" in this context will likely be interpreted narrowly, and thus agreed with the ALJ's likely construction.  However, the Commission again held that the ALJ erred by relying on the doctrine of claim differentiation to support her construction, and thus modified the reasoning to remove this as support.

The ALJ determined that FMC failed to show that it was likely to succeed in establishing that Respondents infringe under the doctrine of equivalents based in part on the disclosure-dedication rule.  The Commission held that ALJ Lord erred in her application of the disclosure-dedication rule, as the disclosed information was not an alternative to the claimed subject matter.  That being said, the Commission affirmed the ALJ's finding that FMC has not shown that it is likely to succeed in establishing infringement under the doctrine of equivalents because FMC has not shown that "Respondents' process is likely equivalent to the claimed process under a proper function-way-result test."  Thus, the ALJ's findings were affirmed, based on modified reasoning.

The Commission also reviewed the ALJ's findings with regard to public interest, and affirmed the determination that the public interest factor did not weigh in favor of granting temporary relief because FMC failed to show it would likely succeed on the merits.  As such, the consistent findings in the ID were affirmed.