As noted in our
May 16, 2016, post, the ITC will be conducting a live Section
337 hearing before the Commission for the first time in nearly a
decade. In a
notice issued on October 11, 2016, the Commission indicated
that the November 17, 2016, hearing will be limited to the issues
of laches, contributory infringement, and the public interest. The
Commission also provided details regarding the format of the
will consist of two panels. The first panel will be limited to the
parties (i.e., complainants, respondents, and the IA), who
will be given an opportunity to comment on the issues identified
above based upon the record in this investigation. A representative
for each of the private parties and the IA may present opening
remarks not lasting more than 10 minutes. After the opening
remarks, the Commissioners may ask questions of the panelists. This
is a public hearing; confidential business information
("CBI") should not be discussed. A party, however, can
draw the Commission's attention to CBI, if necessary, by
pointing to where in the record the information can be found. The
name and contact information of the parties' respective
representatives must be filed with the Office of the Secretary by
Friday, November 4, 2016. The first panel will be from 10 am to
panel will be limited to public interest issues. In particular, the
Commission will hear presentations concerning the appropriate
remedy (if any) and the effect that such remedy would have upon the
public interest. Government agencies, public-interest groups, and
interested members of the public may make oral presentations on the
issues of remedy and the public interest. Parties to the
investigation are expected to present any public interest comments
during the first panel and will not participate in the second
panel. The panel will be conducted in like manner as the first
panel, i.e., an opportunity will be given for opening
remarks, not lasting more than 10 minutes, and Commissioners may
ask questions of the panelists. The second panel will begin at
After the conclusion of the hearing,
no additional written submissions or arguments will be
Certain Lithium Metal Oxide Cathode Materials, Lithium-Ion
Batteries For Power Tool Products Containing Same, And Power Tool
Products With Lithium-Ion Batteries Containing Same, Inv. No.
337-TA-951, October 11, 2016 Notice at 3-4. The Commission further
indicated that "[w]ritten requests to appear at the Commission
hearing with respect to the second panel (i.e., public
interest only) must be filed with the Office of the Secretary by
November 1, 2016" and that participants should "provide a
one-page synopsis of their oral presentations indicating what
position they have on the public interest." The synopsis will
be placed in the public record.
The additional detail provided by the Notice suggests that the
Commission is prepared to give the parties and the interested
public a significant opportunity to advocate their positions and
demonstrate to the Commission the value of such an oral argument.
One issue that may be addressed during argument on public interest
and remedy is the Commission's current split with respect to
whether a cease and desist order should issue on a finding of a
violation of Section 337 even if domestic inventory of infringing
products has not been shown. Jones Day will continue to monitor the
case and will provide updates as they develop.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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