For the second time in the past few months, the U.S. International Trade Commission (ITC) has decided to maintain an exclusion order despite final unpatentability findings by the U.S. Patent and Trademark Office (PTO).
The investigation is Certain Foam Footwear, Inv. No. 337-TA-567, which resulted in a general exclusion order in July 2011 based on infringement of U.S. Patent No. D517,789. On August 9, 2017, the PTO found the sole claim of the patent unpatentable after an inter partes reexamination proceeding, and the challenging parties then requested that the ITC rescind its exclusion order. The ITC refused, however, concluding that the circumstances were no different than other recent cases in which the ITC “determined that it would not disturb any issued remedial order, i.e., modify, suspend, or rescind the order, based solely on a final rejection from the PTO.” Commission Order (October 20, 2017) at 2.
The ITC’s decision in Foam Footwear is yet another noteworthy example in what we previously identified (here) as a “string of recent cases concerning the ITC’s power to enforce and/or stay its remedial orders in light of intervening decisions by other tribunals.”