ITC Stops Sany Crawler Cranes in their Tracks

by Orrick - Trade Secrets Group

The Federal Circuit recently issued another Rule 36 affirmance of an International Trade Commission order barring the importation of products made using misappropriated trade secrets. (See our previous post about another Rule 36 affirmance of an ITC trade secrets order here.) This time, the Commission barred for ten years the importation into the U.S. of crawler cranes that relied on the trade secrets at issue.

Background Regarding the ITC’s Investigation

In June 2013, Manitowoc Cranes LLC filed a complaint under Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337) against Sany Heavy Industry Co., Ltd. and Sany America Inc. Certain Crawler Cranes and Components Thereof, Inv. No. 337-TA-887, 78 Fed. Reg. 42800 (July 11, 2013). The complaint alleged violations of Section 337 based on the importation into the U.S. of crawler cranes that incorporated misappropriated trade secrets and that infringed two patents. At trial, the ALJ adjudicated six of these trade secrets, which related to Manitowoc’s variable-position counterweight technology, combinations of that technology, and related marketing strategies.

The crux of Manitowoc’s allegations was that Sany hired former Manitowoc employees with knowledge of Manitowoc’s trade secrets, and that those employees helped Sany’s research and development team in China create a rival crawler crane. Sany marketed and sold this crane in the U.S., where it edged Manitowoc out of its market share.

The ALJ Found That Sany Misappropriated Some of Manitowoc’s Trade Secrets

Sany argued that Manitowoc’s trade secret claims could not give rise to a Section 337 violation for two reasons: first, because Manitowoc’s alleged trade secrets were general engineering ideas that lacked economic value, and therefore could not qualify for trade secret protection; and second, because even if Manitowoc’s ideas qualified as trade secrets, Sany did not misappropriate them while developing and marketing its crane.

On July 11, 2014, the presiding ALJ issued his Final Initial Determination, finding violations of Section 337 with respect to four of Manitowoc’s trade secrets. The ALJ rejected Sany’s first argument, as there was market need for Manitowoc’s crane features and marketing strategies, and Manitowoc had undertaken the steps necessary to safeguard the information as a trade secret. The ALJ also rejected Sany’s second argument, because knowledge of Manitowoc’s trade secrets played a prominent role in Sany’s recruiting former Manitowoc employees, and before Sany hired these employees, Sany’s cranes had been unsellable in the U.S. The ALJ found that by misappropriating Manitowoc’s trade secrets, Sany avoided a “developmental dead end” and forced Manitowoc to compete against its own technology.

However, the ALJ found no violation with respect to Manitowoc’s two remaining trade secrets, as Manitowoc had described the first trade secret in broad terms that rendered it unclear, and the second trade secret simply combined features from the first.

The Commission Found That Sany Misappropriated All Six of the Adjudicated Trade Secrets and Imposed a 10-Year Ban

On review, the Commission affirmed the ALJ’s Initial Determination in part and reversed it in part, finding that all six of Manitowoc’s trade secrets were protectable and had been misappropriated, rather than only the four trade secrets for which the ALJ had found violations. In its reversal, the Commission offered its own grounds for protecting the two additional trade secrets; it did not address the ALJ’s finding that these trade secrets were too broad to be protectable. The Commission issued a ten-year limited exclusion order prohibiting the importation of cranes and components that relied upon the trade secrets at issue.

The Federal Circuit Summarily Affirmed the ITC’s Order

On appeal to the Federal Circuit, Sany argued that the ITC’s findings on the merits and with respect to the 10-year exclusion order were unsupported by the evidence. Sany emphasized that the ITC had ignored Manitowoc’s disclosure of the trade secrets through various channels, including a patent application and communications between Manitowoc employees and outside entities. The Federal Circuit’s Rule 36 affirmance of the ITC’s exclusion order implicitly rejected these arguments. See Sany Heavy Indus. Co., Ltd. v. Int’l Trade Comm’n, No. 2015-1780 (Fed. Cir. Oct. 11, 2016).

Effect of the Federal Circuit’s Affirmance

The Commission’s order, as affirmed by the Federal Circuit, once again confirms the power of the ITC as a forum to redress the misappropriation of trade secrets. In particular, the Commission’s issuance of a ten-year exclusion order distinguishes the ITC from other courts that hear trade secret misappropriation claims. Whereas it may have been difficult for Manitowoc to obtain a ten-year injunction from another court, exclusion is the primary remedy available in the ITC. The ITC usually determines the length of an exclusion order arising from a finding of trade secret misappropriation based on the period of time required to develop the misappropriated trade secret.  Although money damages are not an available remedy from the ITC, long-term exclusion of competitive products from the U.S. market can often be a better result.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Orrick - Trade Secrets Group | Attorney Advertising

Written by:

Orrick - Trade Secrets Group

Orrick - Trade Secrets Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.