On occasion, the allegations in a patent-based a section 337 investigation will apply the asserted patent(s) against an accused product that, by the time the investigation concludes, has been discontinued. This is particularly likely to happen when the investigation involves a rapidly-changing area of technology. Recently, the Commission confirmed that a finding of a violation may be premised on the importation and/or sale of infringing discontinued articles.

In Certain Windshield Wipers and Components Thereof, Inv. No. 337-TA-928/937 (consolidated), the presiding ALJ granted a motion in limine precluding the complainant from presenting evidence and/or argument regarding two discontinued models of windshield wiper. Order No. 36 (July 16, 2015). On October 22, 2015, after a hearing, the ALJ issued an initial determination finding a violation of section 337 in the importation and sale of other accused models of windshield wipers. On December 21, 2015, the Commission determined to review this initial determination in part and remanded the investigation to the ALJ with respect to the issue of whether there had been a violation with respect to the discontinued windshield wipers.

In its notice of review of the ID, the Commission described how the ALJ had found the discontinued models to be obsolete and irrelevant. 80 Fed. Reg. 80797 (December 28, 2015). In its remand order, the Commission ruled that the discontinued wipers were not irrelevant to the ongoing investigation and that the ALJ should have considered whether they were infringing. First, the Commission noted that the discontinued wipers had been imported and/or sold in the United States, were still being sold in the United States, “and potentially can be offered for sale in the future.” Remand Order at 2. Second, the Commission cited a long line of investigations for the proposition that section 337 does not require that the violative conduct be ongoing for a violation to be found. Remand Order at 3. The Commission then remanded the investigation to the ALJ with instructions to make appropriate findings regarding whether the importation and sale of the discontinued models violated section 337. The Commission authorized the ALJ to extend the target date as he deems necessary and to issue a remand ID four months before the new target date. The ALJ was also authorized to reopen the record to receive evidence and briefing on the remand issues, but not to reopen discovery. Remand Order at 4.