Although the number of new Section 337 investigations instituted during the past several years has been lower than the peak years of 2011-12, the ITC has experienced a flurry of new complaint filings in the last six weeks. Since late September, eight (8) new Section 337 complaints have been filed with the Commission. Assuming that all these complaints result in institution by the ITC, this would bring the total of new Section 337 investigations instituted to 33 to date during calendar year 2015.
The cases involve a wide range of products, including vehicular smartwatch systems, wearable fitness tracking devices, air mattress systems, woven textile fabrics, and height adjustable desk platforms. The new Section 337 complaints also include two health related products – radiotherapy systems used for treating oncology patients (Inv. 337-TA-968) and blood cholesterol test strips (Inv. 337-TA-969). Apparently, because the radiotherapy products potentially affect health and safety issues under Section 337’s statutorily mandated public interest factors, the Commission in the notice of investigation issued in Inv. 337-TA-968 delegated to the presiding Judge to take evidence and make a recommended determination on public interest issues. Certain Radiotherapy Systems, Inv. 337-TA-968, Notice of Investigation, 80 Fed. Reg. 66934 (Oct. 30, 2015). Interestingly, the ITC did not delegate public interest in the other case which arguably also involves a product related to public health. Certain Blood Cholesterol Test Strips, Inv. 337-TA-969, Notice of Investigation, 80 Fed. Reg. 68563 (Nov. 5, 2015).
At least one of the new Section 337 complaints appears to be a countersuit that is related to a previously instituted ITC investigation. On November 2, 2015, a wearable fitness device maker filed a Section 337 complaint and on July 8, 2015, its opponent brought a complaint also involving activity tracking devices, which resulted in institution of an investigation now pending before Chief Judge Bullock. Inv. 337-TA-963, Notice of Investigation 80 FR 50870 (August 21, 2015). The original complaint included claims of trade secret misappropriation as well as patent infringement, and the responsive complaint asserts only patent infringement claims.
The reasons for the flurry of new Section 337 complaints are uncertain. One possibility is that certain complainants were awaiting clarification from the Federal Circuit relating to the continuing jurisdiction of the ITC with respect to induced infringement of method claims, which the Court issued in its August 10, 2015, en banc decision in Suprema v. ITC, Nos. 12-1170 (Fed. Cir. Aug 10, 2015) (en banc). See our prior blog post for discussion of the Suprema decision. Another possibility is that complainants might have been awaiting the appointment of a replacement for Judge E. James Gildea who retired in 2014. Judge MaryJoan McNamara was appointed to the ITC and began her work in August 2015, bringing the ITC back to its full complement of six active Judges. See our prior blog post regarding Judge McNamara.