On September 16, 2013, ALJ David P. Shaw issued Order No. 29 in Certain Compact Fluorescent Reflector Lamps, Products Containing Same and Components Thereof (Inv. No. 337-TA-872).

By way of background, the investigation is based on a complaint filed by Andrzej Bobel and Neptun Light, Inc. (collectively, “Neptun”) alleging violation of Section 337 in the importation into the U.S. and sale of certain compact fluorescent reflector lamps (“reflector CFLs”) and products and components containing same that infringe one or more claims of U.S. Patent No. 7,053,540.  See our March 1, 2013 post for more details.

According to the Order, Respondents Maxlite, Inc., Satco Products, Inc., and Litetronics International Inc. filed a joint motion for summary determination that Neptun was unable to establish a domestic industry, as a matter of law, pursuant to 19 U.S.C. §§ 1337(a)(2) and 1337(a)(3).  Respondents argued that the financial documents Neptun was using to establish a domestic industry could not be used in the current investigation because they were used in a previous case for the same purpose.  Respondents also argued that most of the summary accounting reports being used in the investigation were previously rejected as insufficient to establish a domestic industry in the 830 Investigation (“830 ID”).  Furthermore, Respondents argued that Neptun’s CFO, Marzenna Bobel, established through her testimony that Neptun was unable to allocate domestic industry expenses to a specific patent or project.

Neptun opposed the motion, arguing that there is no relevant Commission authority establishing that expenses cannot be allocated to more than one patent.  Neptun based its argument on the fact that in a previous ITC investigation a complainant was able to rely on the same investments, used in two prior investigations, to satisfy the domestic industry requirement’s economic prong.  To rebut Respondents’ assertion that a domestic industry was not found in the 830 ID, Neptun argued both that the 830 ID was terminated before a final determination was issued and that the investigation did not involve the ‘540 patent.  Neptun also argued that the Commission does not require expenses to be separated “dollar for dollar, patent by patent,” and that Andzrej Bobel knows better than Mrs. Bobel about the relationship between Neptun’s products and expenses.

ALJ Shaw denied the motion for summary determination, noting that it had not been shown that a complainant cannot use the same domestic investments for multiple patents in multiple investigations to satisfy the economic prong of the domestic industry requirement.  Additionally, ALJ Shaw noted that the Commission had not adopted the 830 ID findings and that, to establish a domestic industry, complainants are not required to track domestic investments by product or patent.