• ITC Issues Opinion and Order In Certain Ground Fault Circuit Interrupters (337-TA-739)
  • March 7, 2013
  • Law Firm: Oblon Spivak McClelland Maier Neustadt L.L.P. - Alexandria Office
  • On February 22, 2013, the International Trade Commission (the “Commission”) issued its opinion and order in Certain Ground Fault Circuit Interrupters and Products Containing Same (Inv. No. 337-TA-739).

    By way of background, the Complainant in this investigation is Leviton Manufacturing Co., Inc. (“Leviton”), which alleged violation of Section 337 with respect to certain ground fault circuit interrupters and products containing the same that infringe certain claims of U.S. Patent Nos. 7,463,124; 7,737,809; and 7,764,151.  The remaining respondents are:  Zhejiang Trimone Electric Science & Technology Co. Ltd.; Fujian Hongan Electric Co, Ltd.; TDE, Inc.; Shanghai ELE Manufacturing Corp.; Orbit Industries, Inc.; American Electric Depot Inc.; and Shanghai Jia AO Electrical Co. (collectively, the “Respondents”).

    On December 20, 2011, ALJ Bullock issued an initial determination (“ID”) finding no violation of Section 337 on the grounds that Leviton had not sufficiently shown that a domestic industry exists with respect to the three asserted patents and/or articles protected by those patents.  See our February 24, 2012 post for more details.

    On June 8, 2012, the Commission issued an opinion that reversed the ID and found a violation of Section 337.  With respect to remedy, the Commission issued a general exclusion order and a cease and desist order.  See our June 14, 2012 post for more details.

    According to the Commission’s opinion, Hubbell Incorporated (“Hubbell”) filed a motion on December 21, 2012 requesting Commission approval for its outside counsel to subscribe to the administrative protective order (“APO”) entered in this investigation.  Hubbell was not a named party to the original investigation.  Nonetheless, Hubbell filed two separate appeals to the U.S. Court of Appeals for the Federal Circuit challenging the Commissions general exclusion order and requesting a declaration that Hubbell’s products are beyond the general exclusion order.  Hubbell argued that access to the confidential information disclosed in this investigation is necessary in order to prosecute its two appeals.  As an initial matter, the Commission noted that the burden is on the requester to clearly demonstrate a compelling reason for granting access to confidential information.

    First, the Commission addressed Hubbell’s argument that it was a “party” to the investigation.  The Commission noted that the APO prohibits disclosure of confidential information to “any person other than ¿ outside counsel for parties to this investigation.”  The Commission noted that Commission Rule 210.3 explicitly defines both “party” and “investigation.”  The Commission found that both definitions clearly did not include Hubbell; accordingly, the Commission determined that Hubbell was not a party to the investigation.

    Second, the Commission considered whether Hubbell’s first appeal, which challenged the Commission’s general exclusion order, established a compelling reason for granting Hubbell’s motion.  The Commission determined that Hubbell was unlike the non-parties granted access to confidential information in Certain Baseband Processor Chips, Inv. No. 337-TA-543, because Leviton objected to allowing access and Hubbell has not shown that the general exclusion order at issue has or is likely to adversely affect Hubbell.  Additionally, the Commission held that Hubbell lacks standing to bring its first appeal because: 1) Hubbell has suffered no actual injury, 2) any prospective injury is merely speculative, 3) Hubbell’s fear of exclusion is not causally connected to the Commission’s general exclusion order, 4) the Federal Circuit cannot redress the injury in question., and 5) Section 337 does not confer Hubbell standing.

    Third, the Commission considered whether Hubbell’s second appeal, which challenged the Commission’s denial of its petition to modify the general exclusion order, established a compelling reason for granting Hubbell’s motion.  The Commission determined, for the same five reasons stated above, that Hubbell lacks standing to bring its second appeal.  Central to the Commission’s determination was the fact that the Commission has not found that Hubbell’s products infringe the patent claims at issue.

    Fourth, the Commission determined that neither appeal concerns final, appealable action relating to the relief Hubbell seeks.  The Commission held that the Federal Circuit lacks the jurisdiction for appellate review because the Commission has not made a final adjudication concerning any particular Hubbell product.

    Lastly, the Commission found that Hubbell has not demonstrated the need for the confidential information.  The Commission noted that Hubbell has already filed several papers making extensive arguments before the Federal Circuit without the confidential information.  Further, the Commission held that Hubbell provided only scant arguments to support its need for access to the confidential information.  Based on the above findings, the Commission denied Hubbell’s motion.