• ITC Decides Not To Review Initial Determination In Certain Devices Having Elastomeric Gel (337-TA-732)
  • February 23, 2011 | Authors: Alexander B. Englehart; Eric W. Schweibenz
  • Law Firm: Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P. - Alexandria Office
  • On February 17, 2011, the International Trade Commission (the “Commission”) issued a notice determining not to review an Initial Determination (“ID”) issued by Chief ALJ Paul J. Luckern on January 28, 2011 granting Complainant Interactive Life Forms, LLC’s (“ILF”) unopposed motion to terminate the investigation in its entirety in Certain Devices Having Elastomeric Gel and Components Thereof (Inv. No. 337-TA-732).

    According to the notice, the Commission instituted this investigation on August 4, 2010 based on ILF’s complaint and letter supplementing the complaint. The complaint alleged violations of Section 337 based upon the importation into the U.S., sale for importation, and sale within the U.S. after importation of certain devices having elastomeric gel and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 5,782,818 and 5,807,360.  The complaint originally named 26 Respondents, including Polydigitech Inc. (“Polydigitech”) and Satistic, LLC (“Satistic”).  The complaint and notice of investigation were later amended to add two Respondents and correct the identification of two original Respondents.  Since institution, Satistic has been found in default and all remaining Respondents, save Polydigitech, have been terminated from the investigation based upon consent order stipulations and consent orders or based upon settlement.

    The notice further states that on December 29, 2010, ILF filed a motion to terminate the investigation in its entirety.  In the motion, ILF represented that it is not seeking entry of a limited exclusion order, a cease and desist order, or any other relief despite Satistic having been found in default.  ILF further represented that it had decided to withdraw its complaint against Polydigitech, the last remaining Respondent in the investigation, because its allegations against Polydigitech were based upon that firm’s distribution of products manufactured by original Respondent TENGA Co., Ltd., which has since entered into a consent order and been terminated from the investigation.  ILF also stated that neither Polydigitech nor the Commission Investigative Staff opposed the motion.

    On January 28, 2011, ALJ Luckern issued the ID.  According to the notice, given ILF’s decision not to seek any relief against the defaulted party, and finding no extraordinary circumstances that would preclude the Commission from terminating the investigation in its entirety based on the withdrawal of the complaint as to Polydigitech, the only remaining Respondent in the investigation, ALJ Luckern granted ILF’s unopposed motion.  No petitions for review of the ID were filed.

    In the notice, the Commission states that it has determined not to review the ID.  This effectively ends the 732 investigation.