In a recent order, ALJ Bullock indicated that it is unsettled whether evidence related to unreleased products can be used to establish that a domestic industry exists. As a result, he denied respondent’s motion to strike certain portions of complainant’s expert report related to the use of such unreleased products. Certain Gas Spring Nailer Products and Components Thereof, 337-TA-1082, Order 17 (July 19, 2018).

In this investigation, Respondent Hitachi Koki U.S.A. moved to strike portions of Complainant Kyocera Senco Brand Inc.’s initial expert report related to domestic industry. 19 C.F.R. § 1337(a)(2) indicates that the domestic industry can be based on an industry that already exists or is in the process of being established. Hitachi alleged that the scope of the investigation was limited to whether such an industry “existed” so Kyocera could not use evidence of unreleased products as evidence of an industry that was “in the process of being established.” Kyocera countered by arguing that it never alleged an industry was in the process of being established and that it was using the evidence of the unreleased products to support its assertion of a domestic industry that already exists. Accordingly, the argument between the parties was whether evidence relating to an unreleased product could be used to establish that a domestic industry already exists.

Citing a recently issued Initial Determination from Certain Non-Volatile Memory Devices & Products Containing Same, 337-TA-1046 (Initial Determination), Hitachi argued that “products must be for sale in the marketplace to support a finding that a domestic industry exists.” In that investigation, the ALJ explained that “section 337(a)(2) requires that the industry relate to ‘articles protected by the patent’” which “is limited to products for sale in the marketplace.” (Id. at 146-148.)

ALJ Bullock pointed out that, the Commission recently determined it would review this finding but had not issued its Final Determination yet. Accordingly, ALJ Bullock concluded that “[i]t would be premature to strike Complainant’s expert reports based on a conclusion that is currently under review by the Commission.

Takeaway

While the Commission is still considering the issue, this order highlights the importance for complainants at the ITC to consider whether to include alternative pleadings in their filings to take advantage of the fact that the domestic industry requirement can be satisfied based on an industry that is in the process of being established