• Commission to Review Initial Determination Terminating Investigation Based On a Settlement Agreement in Certain Non-Shellfish Derived Glucosamine (337-TA-668)
  • August 28, 2009 | Author: Barry J. Herman
  • Law Firm: Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P. - Alexandria Office
  • On August 24, 2009, the International Trade Commission issued a notice determining that it would review ALJ Robert K. Rogers’ Initial Determination granting a joint motion to terminate the investigation as to respondent Ethical Naturals, Inc. (“ENI”) based on a settlement agreement in Certain Non-Shellfish Derived Glucosamine and Products Containing Same (Inv. No. 337-TA-668).

    As set forth in our July 14 post, ALJ Rogers denied a first joint motion filed by Complainant Cargill, Inc. (“Cargill”) and Respondent ENI to terminate the investigation as to ENI (Order No. 23).  The Commission Investigative Staff opposed the motion.  ALJ Rogers determined that the settlement agreement was contrary to the public interest because the definition of “non-shellfish glucosamine” included “products containing non-shellfish glucosamine, and shall mean glucosamine derived from fungal or microbial biomass or other vegetarian sources.”  ALJ Rogers found that this provision “can be construed as an attempt by Cargill to expand its monopoly to cover an unpatented product manufactured by a process other than that covered by the [asserted patent]” and that “[s]uch a result could arguably be construed as patent misuse.”  Accordingly, he denied Cargill and ENI’s joint motion to terminate the investigation as to ENI because he could not “find that the settlement agreement will have no harmful effect on the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, or U.S. consumers.”

    On July 13, 2009, Cargill and ENI filed a second joint motion to terminate the investigation based upon a revised settlement agreement and license agreement.  The Staff filed a response in support of the motion.  On July 24, 2009, ALJ Rogers issued Order No. 26: Initial Determination Granting Joint Motion.  In the ID, ALJ Rogers found that the settlement agreement had been revised to narrow the definition of “non-shellfish glucosamine” and that this narrower definition “does not raise the same concerns that led to the denial of the parties’ previous motion to terminate.”

    In the notice, the Commission determined to review ALJ Rogers’ July 24, 2009 ID.  The Commission noted it was particularly interested in responses to certain questions, but the questions were redacted because they contain confidential information.  Written submission are due by September 7 and reply submission are due on September 17.