ITC Issues General Exclusion Order Based on Respondents’ “Willful Blindness” and Potential to Evade Order

The International Trade Commission reversed an administrative law judge’s finding of no induced infringement and issued a general exclusion order, in Inv. No. 337-TA-723, Certain Inkjet Ink Cartridges with Printheads and Components Thereof. 

The investigation, which was brought by Hewlett-Packard, alleged that seven companies (Asia Pacific Microsystems (APM), Mipo Technology Limited, Mipo Science & Technology, Mipo America, Ltd., MicroJet Technology Co., PTC Holdings Ltd. and SinoTime Technologies, Inc.), infringed five separate patents.   Only APM offered evidence at the hearing.  PTC did not appear and offered no evidence at the hearing, Mipo settled with Hewlett-Packard, and MicroJet was found in default.  The administrative law judge’s Final Initial Determination found, inter alia, that PTC and MicroJet directly infringed each of the five patents, and that APM did not directly infringe or induce infringement of each of the five patents, but that APM was liable for contributory infringement of one patent.  The ALJ recommended that a general exclusion order be issued if a violation was found. 

The ITC determined to review the Final Initial Determination to decide if “the record evidence demonstrate[s] that APM’s conduct meets the ‘specific intent’ requirement for inducement in light of the ALJ’s finding that ‘APM certainly had knowledge of the asserted patents and the infringement at issue once it was served with HP’s Complaint.”  On review, the ITC reversed the ALJ based on its determination that APM had acted with willful blindness, finding that APM was aware of an earlier ITC investigation, Inv. No. 337-TA-711, in which MicroJet was accused of infringing the same patents, and that APM took no action to determine whether its conduct was non-infringing.  The ITC also found that the accused products did not have substantial non-infringing uses, and therefore the continued manufacturing of the products imputed intent to infringe the patents to APM.

The ITC agreed with the ALJ that a general exclusion order should be issued.  The ITC found that evidence demonstrated that the source of infringing products was difficult to identify, that manufacturers packaged their products in generic packaging that made it difficult to identify the products’ origin and that many manufacturers maintained multiple corporate identities so that products could be sold without revealing their true identities.  As such, the ITC determined that despite the heightened threshold for a general exclusion order, such an order was necessary to prevent the respondents from circumventing the ITC’s order.