Certain Polyvinylidene Fluoride Resins; Inv. No. 337-TA-1439 (Violation)

The ALJ found a violation of Section 337 as to U.S. Patent No. 8,337,725, concluding that claims 1, 3, 6, 8, and 9 are infringed, that Respondents did not prove invalidity, and that a domestic industry is in the process of being established. Importation was proven only for FL2300 (the conclusions of law state this), with no importation or sale for importation of Sinodur 25630 and no sale for importation of Juhua's JHS-1020. The violation finding rests on a narrow importation record and a domestic industry that is still being established, because no domestic industry yet exists. The ALJ recommends limited exclusion orders against the respondents with a certification provision, rejects limiting the orders to specific model numbers, and recommends a 4.5 percent bond. The Commission will review the violation if a party petitions or it acts on its own motion. Importation: Complainants' agent imported the Fluorine accused products and Juhua's JHS-1020, but the shipment labeled Sinodur 25630 was found not to be that product, so the Commission lacks statutory authority over it. No sale for importation was shown for Sinodur 25630 or for Juhua's JHS-1020. Infringement: Complainants proved infringement of claims 1, 3, 6, 8, and 9 of the 725 patent. The construction of the 'hydrocarbon moiety' term allows atoms other than carbon and hydrogen. Invalidity: Respondents failed to prove by clear and convincing evidence that any claim is invalid. The Miyabayashi and Ishida grounds, indefiniteness (including the titration-based randomness fraction and the C1-C5 hydrocarbon moiety), and written description (linear copolymer, R1-R3, ROH, and the 40 and 50 percent randomness fractions) all failed. Domestic industry: The technical prong was met for claims 1, 3, and 6. On the economic prong, an industry in the process of being established was shown under subsections (A) and (B) based on the Augusta and St. Gabriel facilities, but no industry currently exists because the plants are not yet operational. Remedy: The ALJ recommends limited exclusion orders with typical terms and certification provisions, but not limited to specific models. A 100 percent bond was rejected for lack of price-differential evidence, and a 4.5 percent bond based on licensing rates is recommended.