MarkIt to Market® - November 2021: Watching the Pot™

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Sterne, Kessler, Goldstein & Fox P.L.L.C.

ITC to Determine if Importing of Oil-Vape Cartridges to Go Up in Smoke

The ITC recently initiated an investigation into whether 38 manufacturers' imports of oil-vape cartridges used to smoke cannabis and THC infringe a series of utility and design patents held by Shenzhen Smoore Technology Limited.

The ITC is a powerful forum in which a patent owner can defend its domestic industry in the U.S. from infringing imported products. Investigations before the ITC are shorter and move faster than in other fora. An ITC action from complaint to resolution is typically completed within nine months, whereas it can take up to three years to complete a trial when a complaint is filed in district court. This speed often gives patent owners more leverage than they would have in district court proceedings.

Considered to typically be a complainant-friendly agency, the ITC cannot award money damages to patent owners, but can grant exclusion orders that ban products from entering the US, and cease-and-desist orders that prevent distribution of already-imported product inventories.

Shenzhen filed its complaint in October seeking a limited exclusion order and a cease and desist order prohibiting the entry of cannabis vaping cartridges and their components, such as atomizers and mouth pieces, into the U.S. Oil-vape cartridges are small units that are filled with oil and then attached to a battery component that heats up the oil and releases the active ingredients in a vapor form that users can inhale.

According to Shenzhen, its technology is commonly used in both medical and recreational cannabis in the states that authorize such use. Shenzhen expresses concern that the accused products “are usually low quality copies” of Shenzhen’s technology, the use of which poses “great risks to the health of the general public.” Shenzhen submits that it and its U.S. distributors have “more than adequate production capacity to meet any increase in demand of the [] vaping cartridges if the Requested Remedies were granted.”

As more U.S. states make medical and recreational cannabis products legal, we can expect a parallel increase in imported vape product components – infringing or otherwise. This case will be insightful for other patent owners having a domestic industry in the U.S. as to the likelihood of keeping infringing products at bay. We will keep you updated as the case proceeds.

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.

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