Certain Flash-Spun Nonwoven Materials and Products Containing Same; Inv. No. 337-TA-1424 (Violation)

The ALJ found a violation of section 337 based on trade secret misappropriation by the Kingwills respondents, conversion, and trademark infringement by defaulting downstream respondents. Trade Secrets 15, 18, 19 and 22 were held protectable, while Trade Secrets 11, 17 and 25 failed for insufficient particularity. Kingwills was found to have misappropriated Trade Secrets 15, 18 and 22 and to have committed conversion, and a domestic industry and a threat of substantial injury were found. The ALJ recommends a general exclusion order to prevent circumvention of a limited exclusion order, with a limited exclusion order with certification as the fallback. The recommended duration is four years running from issuance of the order. A cease and desist order is recommended against defaulting Impak but not against Kingwills, and the bond recommended is 100 percent of entered value. The Commission will review the ID and the recommended remedy. Trade Secrets 11, 17 and 25 were not defined with sufficient particularity and so are not protectable. Trade Secrets 15, 18, 19 and 22 were found protectable under the Sausage Casings factors. Kingwills was found to have misappropriated Trade Secrets 15, 18 and 22 through improper acquisition and use, and to have committed conversion. A heavy independent development burden was placed on respondents. The importation requirement was met for all respondents. DuPont's Spruance, Virginia plant and equipment and labor and capital investments were found significant, so the economic domestic industry requirement was satisfied. A threat of substantial injury was found from Kingwills' ability to undersell Tyvek and its explicit intent to enter the U.S. market. Nexus was found for Trade Secrets 15 and 18 and for conversion, but not for Trade Secret 22. JGT Live, Quoko and Jiangsu Tubo/TOBO Group infringe the three TYVEK word marks, while the downstream respondents do not infringe Registration No. 7,370,316. Remedy recommendations are a GEO of four years for the trade secrets, a CDO against Impak only, and a 100 percent bond.