On June 30, 2014, the International Trade Commission (the “Commission”) issued a notice in the advisory opinion proceeding in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).  In the notice, the Commission determined to adopt a report prepared by the Commission Investigative Staff (“OUII”) as the Commission’s advisory opinion in the proceeding.

By way of background, the Commission instituted this advisory opinion proceeding on February 7, 2014 based on a request by Lelo Inc. and Leloi AB (collectively, “Lelo”).  In particular, the Commission had previously issued a general exclusion order and cease and desist order against Lelo in the underlying 823 investigation, and Lelo was seeking an advisory opinion as to whether its new kinesiotherapy devices are covered by those orders.  See our February 10, 2014 post for more details.  After instituting the proceeding, the Commission assigned OUII the task of investigating and preparing a report concerning Lelo’s new kinesiotherapy devices.  The Commission named Lelo and the Complainants in the underlying investigation (collectively, “Standard Innovation”) as parties to the proceeding.

According to the notice, on May 5, 2014, OUII issued a report concluding that Lelo’s new kinesiotherapy devices are not covered by the general exclusion order and cease and desist order issued in the underlying investigation.  In particular, OUII concluded, inter alia, that (1) Lelo had met its burden of showing non-infringement with respect to the claim term “elongate outer arm;” and (2) Lelo had failed to meet its burden of showing non-infringement with respect to the claim element “at least one of the inner and outer arms are generally tear-drop shaped.”  On May 15, 2014, Standard Innovation and Lelo filed comments on OUII’s report.  On May 22, 2014, Standard Innovation and Lelo filed replies to the comments.

The notice states that, after reviewing OUII’s report and the parties’ comments, the Commission determined to adopt OUII’s report as the Commission’s advisory opinion in the proceeding.