ITC Again Refers an Advisory Opinion Request to OUII

The Commission has referred to the Office of Unfair Import Investigations (“OUII”) an advisory opinion request filed by Otter Products LLC, which seeks a declaration that certain of its products are outside the scope of the general exclusion order entered in Certain Cases for Portable Electronic Devices (Inv. Nos. 337-TA-867/861). This is the Commission’s second such advisory opinion referral to OUII this year. Prior to this year, the last referral was nearly 30 years ago.

In what may mark the beginning of an expansion of the role of the Office of Unfair Import Investigations (“OUII”), the Commission has referred to OUII an advisory opinion request filed by Otter Products, LLC (“Otter”) in connection with the general exclusion order (“GEO”) in Certain Cases for Portable Electronic Devices (Inv. Nos. 337-TA-867/861).  Specifically, on October 22, 2014, the Commission instructed OUII to prepare a written report regarding whether the Otter products at issue are covered by the exclusion order, and ordered the parties to the advisory opinion proceeding to furnish information as requested by OUII.  This is the second such advisory opinion referral to the OUII this year.  Last June, at the conclusion of proceedings regarding a similar advisory opinion referral in Certain Kinesiotheraphy Devices (Inv. No. 337-TA-823), the Commission decided to adopt OUII’s report, which concluded that the requestor’s products were outside the scope of the exclusion and cease and desist orders entered in the underlying investigation.[1]  OUII typically conducts pre-institution reviews of complaints alleging Section 337 violations, advises the Commission on the institution of new investigations, and participates as a party representing the public interest in a majority of such investigations.  Prior to Kinesiotheraphy Devices, the last time the Commission referred an advisory opinion request to OUII was in 1986.[2]   Since then, the Commission has typically referred advisory opinion requests to an Administrative Law Judge for issuance of an initial advisory opinion.   However, soon after its adoption of OUII’s report in Kinesiotheraphy Devices, Commission personnel indicated that there might well be additional referrals to OUII in an effort to speed up advisory opinion proceedings in less complex matters.

On September 4, 2014, Otter filed a request with the Commission for an advisory opinion proceeding to declare that its Symmetry Series Products are not covered by the GEO entered in Portable Electronic Devices.  The Commission had issued the GEO against cases for portable electronics that infringe claims 4, 5, 9 or 11 of U.S. Patent No. 8,204,561 in July 2014.[3]  The original complaints, filed by Speculative Product Design, LLC of Mountain View, California (“Speck”), which were brought against 24 respondents, did not name Otter as a respondent.  Speck has filed an opposition to Otter’s request for an advisory opinion.

The Commission referred the matter to OUII on October 22, 2014.[4]  In its referral, the Commission directed OUII to issue a report based on its investigation within 90 days of October 28, the date of publication of the notice of referral in the Federal Register.[5]  Subsequent to the issuance of this report, Otter and Speck may file comments and replies to comments.[6]  Within 45 days of receiving OUII’s report, the Commission will review the report and the parties’ submissions and decide whether  to adopt the report or issue its own  advisory opinion.[7]

Commission advisory opinions are the Commission’s official interpretation of its exclusion orders.  Such opinions are, however, not appealable to the Federal Circuit because they are not considered to be final determinations of the Commission.[8]


[1] Certain Kinesiotherapy Devices and Components Thereof, Inv. No. 337-TA-823, Comm’n Decision To Adopt A Report Issued By The Office of Unfair Import Investigations as An Advisory Opinion., 79 Fed. Reg. 38330 (July 7, 2014).

[2] In re Certain Window Shades, Inv. No. 337-TA-83, Comm’n Advisory Op., 230 U.S.P.Q. 183 (April 11, 1986; amended April 17, 1986).

[3] Certain Cases for Portable Electronic Devices, Inv. No. 337-TA-867/861, Comm’n Opinion at 10 (July 10, 2014).

[4] Certain Cases for Portable Electronic Devices, Inv. No. 337-TA-867/861, Comm’n Order at 2 (October 22, 2014).

[5] Id.

[6] Certain Cases for Portable Electronic Devices, Inv. No. 337-TA-867/861, Comm’n Order at 3 (October 22, 2014).

[7] Id.

[8] Allied Corp. v. ITC, 850 F.2d 1573, 1578 (Fed. Cir. 1988).