Women's Flats with Colored Outsoles Thereof; Inv. No. 337-TA-1428 (Violation)

On review of a summary-determination ID against defaulting respondents, the Commission found a violation of section 337 as to eight asserted design patents and the asserted blue-sole trade dress, holding the economic prong of domestic industry met under section 337(a)(3)(B) on labor expenses alone. It issued a general exclusion order for five design patents and a limited exclusion order for three design patents and the trade dress, with a 100% bond. The GEO bars imports of infringing women's ballet flats from any source, which reaches the many anonymous online sellers that are hard to identify. The LEOs reach the named defaulting respondents on the other three patents and the trade dress. Because all respondents defaulted and no party petitioned for review of the ID, appeal prospects appear limited, though the opinion does not address this. The Commission reviewed only the economic prong of domestic industry for the D'928, D'951, D'927, D'812 and D'853 patents, and affirmed and adopted the rest of the ID. Complainant's domestic labor expenses alone satisfy section 337(a)(3)(B), based on a domestic-to-foreign expenditure comparison, a labor-to-revenue ratio and value added by U.S. activities. The Commission took no position on capital expenditures or on section 337(a)(3)(A). A GEO issues under section 337(g)(2) for the five patents because the respondents defaulted and the circumvention and pattern-of-violation/difficult-to-identify-source criteria of section 337(d)(2)(A) and (B) are met. An LEO issues under section 337(g)(1) against the defaulting respondents for the D'950, D'035 and D'032 patents and the Asserted Trade Dress, with the complaint's facts presumed true. The Commission declined an LEO on the five GEO patents, and no cease and desist orders were requested or issued. The public interest factors do not preclude relief, and the bond during Presidential review is set at 100% of entered value because price differential or royalty evidence was unavailable from the defaulting respondents.