United States: Chief ALJ Bullock Grants Motion for Summary Determination of Section 337 Violation in Certain Container Opening Devices and Methods (337-TA-1255)
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On December 27, 2021, ALJ Chief Charles E. Bullock released the public version of Order 11 granting complainant Draft Top, LLC (âDraft Topâ) the motion for a summary determination of violation of the Act. Section 337 by respondents KKS Enterprises Co., Ltd. . (“KKS”); Kingskong Enterprises Co., Ltd. (“Kingskong”); Du Zuojun; WN Shipping USA, Inc. (âWN Shippingâ); ShujÃ© Wei; Express Cargo Forwarded, Ltd. (“Express Cargo”); and Hou Wenzheng (collectively, the “Defaulting Respondents”) in Certain apparatus and methods of opening containers (Inv. N Â° 337-TA-1255).
For your information, this investigation is based on a complaint filed on January 28, 2021 by Draft Top, alleging that nine entities are illegally importing / selling certain devices and methods of opening containers that are intentionally and deliberately designed for use, and are used, in a manner which violates claim 12 of U.S. Patent No. 10,519,016 (“the ‘016 patent”). The offending products are can openers designed to be used for the purpose of creating an open beverage container by removing the can lid. See our article from March 16, 2021 for more details regarding the complaint and notice of investigation. The respondents Tofba International, Inc. and Mintiml were excluded from the investigation based on the withdrawal of the allegations from the complaint, and only the defaulting respondents remained in the investigation.
According to the order, Chief ALJ Bullock found no real factual issues regarding the importation of the accused products, the violation of claim 12 of the ‘016 patent by the accused products, and the satisfaction of Draft Top on the technical and economic side. of the requirement of the national industry. In addition, no party has challenged the validity of the ‘016 patent. Accordingly, Chief ALJ allowed Draft Top’s motion for a summary determination of a Section 337 violation by the Defaulting Respondents.
Further, Chief ALJ Bullock recommended the issuance of a General Exclusion Order (“GEO”) based on his findings that a GEO is necessary to prevent circumvention of limited exclusion orders, which there is a widespread pattern of unauthorized use and it has been difficult to identify the seller and importer of the offending products. Finally, the ALJ leader recommended a deposit value of 100% due to the lack of information available on prices and royalty rates.
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