In a recent opinion, the ITC found that four defaulting respondents violated section 337 and that a general exclusion order (GEO) was the appropriate remedy for unlicensed products. Certain LED Lighting Devices and Components Thereof, Inv. No. 337-TA-1107, Comm'n Op. (August 21, 2019). Complainant Fraen Corporation ("Fraen") filed its complaint against a total of 10 respondents. During the course of the investigation, Fraen settled with six of the respondents, and the remaining four respondents never entered appearances and were found in default.
In its opinion addressing the GEO, the ITC found that both requirements of 19 U.S.C. § 1337(d)(2) were met – a GEO was necessary to prevent circumvention of a limited exclusion order, and there was a pattern of infringement and it was difficult to identify the source of the infringing products.
The ITC concluded that Frean established any remedy directed only to the defaulting respondents would "immediately be circumvented through the sales and importation of LED lighting devices by other existing foreign entities." In addition to the large numbers of sellers offering products identical to those of the defaulting respondents, Fraen also established there is an equally large number of foreign sellers offering similar, but not identical, LED lighting products that appear to infringe the asserted patents. Fraen also established that nearly all of the identified foreign sellers offer their products for sale through online commerce sites – a fact that serves to reinforce the necessity for a GEO.
To establish these facts, Fraen relied on declarations, infringement claim charts for several purchased products, actual comparisons of various products to demonstrate their similarity, and online searches to demonstrate the widespread availability of the infringing products.
As we have discussed previously ( here), a GEO is a powerful remedy because it prohibits all importations of excluded goods, even from non-parties. In this case, the only products that seem to be spared from the GEO are those sold by the licensed respondents based on settlement agreements with Fraen. The recent trend suggests that the ITC is more willing to issue a GEO than it has been in the past (see similar decision here). The 1107 decision highlights the type of situation where a GEO may be appropriate, and it shows the type of evidence the ITC expects the complainant to produce to support its request for a GEO.
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