On February nine, 2012, the International Trade Commission (the “Commission”) issued a notice and advisory opinion granting an invitation by non-respondent Holland Electronics, LLC (“Holland”) and determining that Holland’s identified coax cable connectors aren't lined through the Commission’s March thirty one, 2010 general exclusion order for U.S. Patent No. 6,558,194 using some RG213 Coaxial Cable Connectors and parts Thereof and merchandise Containing Same (Inv. No. 337-TA-650).    

Through background, the Complainant therein investigation is John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) and also the Respondents are Fu Ching Technical business Co. Ltd., Gem Electronics, Inc. (collectively, the “Active Respondents”), Hanjiang Fei Yu Electronics Equipment Factory, Zhongguang Electronics, Yangzhou Zhongguang Electronics Co., Ltd., and Yangzhou Zhongguang Foreign Trade Co., Ltd. (collectively, the “Defaulting Respondents”).  The investigation was instituted on might thirty, 2008.  On October thirteen, 2009, ALJ Gildea issued his Initial Determination (“ID”) finding, inter alia, the Defaulting Respondents violated Section 337 by infringing numerous patents, together with U.S. Patent No. 6,558,194 (the ‘194 patent).  See our November ten, 2009 post for additional details.  On December fourteen, 2009, the Commission determined to research the ID partially, but the Commission didn't study the ALJ’s determination per the ‘194 patent.  See our December sixteen, 2009 post for additional details. The Commission issued a general exclusion order on March thirty one, 2010 counting on ‘194 patent dependant on obtaining a violation of Section 337 with the defaulting respondents.

Using the opinion, Holland filed an invitation on September twelve, 2011, on an advisory opinion underneath Commission Rule 210.79, asking the Commission to look at that it's identified connectors are outside the scope of the Commission’s March thirty one, 2010 general exclusion order.  Holland initial argued that it's licensed to import then sell its identified connectors as a result of PPC entered into a covenant to not ever sue with Holland in 2006.  Holland additionally argued that its identified connectors did not infringe the ‘194 patent.  Holland requested expedited thought and asserted that referral to an ALJ was unnecessary.  Holland noted that U.S. Customs and Border Protection (CBP) was holding Holland’s connectors at 2 ports in California, and CBP indicated it would not examine the legal import of Holland’s covenant to never sue with PPC.  In line with the opinion, neither PPC nor the Commission Investigative Attorney disputed how the Holland product at issue are be subject to a covenant to not ever sue, and each agreed that Holland’s identified product tend to not fall at intervals the scope from the exclusion order.

The Commission determined that the March thirty one, two010 general exclusion order lined coaxial connectors that infringe claims one and/or 2 from the ‘194 patent, “except underneath license of the patent owner or as furnished by law,” which based mostly on the Federal Circuit, covenants to not ever sue are cherish non-exclusive patent licenses.  The Commission so agreed with the parties and determined that Holland’s identified things that are ruled by the covenant never to sue are outside the scope from the March thirty one, 2010 general exclusion order.