Juul Adds Second Complaint
As discussed in previous updates, the ITC is currently investigating patent infringement allegations by e-cigarette brand Juul against a large number of rivals in Electronic Nicotine Delivery Systems (Inv. 1138).
On November 19, Juul filed a second Section 337 complaint—Certain Cartridges for Electronic Nicotine Delivery Systems and Components Thereof—this time against 24 respondents, including two that are also defending themselves in the 1138 investigation. In the second complaint, Juul is asserting five different patents, but both complaints involve technology related to e-cigarette devices with replaceable cartridges.
According to the new complaint, Juul has also filed 23 separate patent infringement lawsuits in various federal district courts since October 3.
The ITC has released a public version of the final initial determination in Magnetic Data Storage Tapes II (Inv. 1076). As noted in an earlier update, the Final ID found in favor of Fujifilm in its complaint against Sony.
This is the fourth of four ITC investigations between the two companies. The first was Magnetic Data Storage Tapes I (Inv. 1012), in which the Commission found a violation by Sony. Then in Magnetic Tape Cartridges I (Inv. 1036), the Commission found no violation by Fujifilm. And the Commission is still reviewing the Final ID in Magnetic Tape Cartridges II (Inv. 1058) which this time found that Fujifilm did violate Section 337.
The domestic industry requirement has been a difficult issue in all these investigations, for the simple reason that both companies are Japanese multinationals that design and manufacture their products in Japan.
Sony has relied on domestic investments by a third-party licensee (IBM), but that was still deemed insufficient in 1036, and in 1058 Sony succeeded in showing domestic industry only because the ALJ counted IBM's investments toward the production of a tape drive needed to read certain IBM-brand cartridges that, ironically, are designed and manufactured under contract by Fujifilm.
In the 1076 investigation, Fujifilm successfully relied on its own investments in a U.S. facility where imported tape is wound into cartridges and packaged for sale. Now that the Final ID has been made public, we know that the ALJ in 1076 relied heavily on the fact that the Commission already decided those same investments were sufficiently significant in the earlier 1012 investigation. But the 1012 investigation is currently under appeal where Sony is asking the Federal Circuit to overturn the Commission's domestic industry finding. Now both investigations may hinge on the outcome of that appeal.
Image credit: Scott Schiller