ITC Monthly Wrap-Up: September 2021

This month's ITC Wrap-Up summarizes two decisions from the ITC that issued in September, 2021, in the 1237 Investigation. In the first decision, ALJ Bullock denied the complainant's motion in limine and high priority objection to preclude evidence of a noninfringing alternative that the respondent disclosed on the last day of fact discovery. In the second decision, ALJ Bullock granted the complainant's motion in limine to preclude live testimony from a nonparty neutral witness.

In addition to these two case updates, there was a lot of other activity related to the ITC this month. On September 13, the ITC named Monica V. Bhattacharyya as a new Administrative Law Judge. Prior to her appointment, ALJ Bhattacharyya served as an investigative attorney in the ITC's Office of Unfair Import Investigations since 2012. In addition, on September 7, the House of Representative proposed a new law with the stated goal "to ensure that the resources of the United States International Trade Commission are focused on protecting genuine domestic industries and to safeguard the public health and welfare and the United States economy (including competitive conditions)," by limiting the ability of certain entities from filing complaints at the ITC. H.R. 5184, 117th Congress (2021-2022). For example, the bill requires a complainant attempting to demonstrate domestic industry through licensing activities related to IP to show that the activities led to the adoption and development of articles that incorporate the IP in the U.S., and requires that the ITC evaluate whether exclusion of articles is in the public interest, among other proposed changes in the law.

In the Matter of Certain Cloud-Connected Wood-Pellet Grills and Components Thereof, Inv. No. 337-TA-1237 (Order No. 32)

Complainant Traeger Pellet Grills LLC filed a motion in limine to preclude the admission of evidence regarding a proposed alternative design for the accused products, and a high priority objection to exclude an exhibit related to the proposed alternative design. ALJ Bullock denied the complainant's motion in limine and overruled its high priority objection.

The complainant argued that the respondent's prehearing brief arguments regarding the alleged non-infringing alternative and the corresponding exhibit should be excluded because the products are hypothetical and outside the scope of the investigation. The respondent served an interrogatory response identifying "Alternative Non-Infringing Products" on the last day of fact discovery, and the complainant argued that the respondent failed to timely produce discovery regarding the alternative products. The respondent argued that the non-infringing alternative was properly within the scope of the investigation.

The ALJ denied the complainant's motion and high priority objection, stating that the respondent timely disclosed its non-infringing alternative during discovery, and the parties' experts had an opportunity to address the respondent's contentions. Order No. 34 at 2. Furthermore, the order stated that "[t]he question of whether the alternative design is within the scope of the investigation is a substantive issue that is not appropriate for adjudication in a motion in limine or evidentiary objection." Id.

In the Matter of Certain Cloud-Connected Wood-Pellet Grills and Components Thereof, Inv. No. 337-TA-1237 (Order No. 30)

Complainant Traeger Pellet Grills LLC filed a motion in limine to preclude Respondent GMG Products LLC from presenting live testimony from a third-party witness. Here, ALJ Bullock granted the complainant's motion in limine.

The complainant moved to preclude the respondent from examining the third-party witness at the hearing because the respondent failed to serve a witness statement or outline the witness's direct testimony. In response, the respondent argued that the third-party witness was outside of the respondent's control, and "it was clear [he] would not agree to spend the substantial time required to prepare and finalize and witness statement and still attend the hearing for cross examination and redirect." Order No. 30 at 2 (citing Respondent's Opposition at 4).

ALJ Bullock agreed with the complainant that the respondent should have attempted to prepare a witness statement for the third-part witness, citing Ground Rule 9.3 ("Unless otherwise ordered by the Administrative Law Judge, all direct witness testimony shall be made by witness statements in lieu of live testimony"). Id. Because the complainant did not oppose the admission of the third-party witness's deposition testimony, the ALJ found that the respondent may offer the deposition designations into evidence pursuant to Commission Rule 210.28(h)(3)(vi). 19 U.S.C. § 210.28(h)(3)(vi) ("Upon agreement of the parties and within the administrative law judge's discretion, the use of designated deposition testimony in lieu of live witness testimony absent the circumstances otherwise enumerated in this paragraph is permitted."). The ALJ further found that "admitting the designated deposition transcript would not prejudice either party because they both participated in the deposition and timely served designations and counter-designations. No evidence would be excluded from the record" because the respondent has represented that the scope of the third-party witness's live testimony would have been the same as his deposition testimony. Order No. 30 at 2-3.