Certain Ink Cartridges I (Inv. No. 337-TA-1451): What It Changes for ITC Section 337

The Commission affirmed, with modified reasoning and supplemental findings, the administrative law judge's initial determination (ID, Order No. 16) granting summary determination of a violation, for cartridges and components that infringe claims 8, 11 and 20 of U.S. Patent No. 8,540,347; claims 7 and 17 of No. 9,061,508; claim 1 of No. 11,535,037; claim 1 of No. 11,820,150; and claims 1, 10 and 19 of No. 12,246,539.

The investigation is terminated. The Federal Register notice's title says "Limited Exclusion Order," but its summary and text, like the opinion, say general exclusion order.

Sources: 1451 opinion (EDIS doc. 897288); 91 FR 61436 (Sept. 29, 2026).

The complainants were Epson Portland Inc. (Hillsboro, Oregon), Epson America, Inc. (Los Alamitos, California) and Seiko Epson Corporation (Nagano, Japan), which owns the patents. The Commission instituted the investigation on June 17, 2025, against twenty respondents: eighteen in mainland China or Hong Kong and two in California. The accused products are aftermarket cartridges for Epson printers, in three groups defined by their electrical contact layouts, and one-time-use circuit boards fitted to refillable cartridge bodies.

1. Sixteen respondents were found in default; four were terminated when the complaint was withdrawn as to them.
2. February 3, 2026: the complainants moved for summary determination of violation. The Office of Unfair Import Investigations (OUII), the ITC staff party, supported it.
3. May 15, 2026: the ALJ granted the motion and recommended a GEO and CDOs. No one petitioned for review.
4. July 1, 2026: the Commission decided to review indirect infringement and the economic prong of domestic industry, and asked for briefing on domestic industry and on remedy, the public interest and bonding.

A party in default is deemed to have waived its right to appear, to be served and to contest the allegations (19 C.F.R. § 210.16(b)(4)). Summary determination is available when there is no genuine issue of material fact, and an order granting it is an initial determination (§ 210.18(b), (f)).

Sources: 90 FR 25643; 91 FR 41658; 1451 opinion (EDIS doc. 897288); 19 C.F.R. § 210.16; § 210.18.

A patent-based Section 337 case needs an industry in the United States relating to the patented articles. Under § 337(a)(3) it exists if there is (A) significant investment in plant and equipment, (B) significant employment of labor or capital, or (C) substantial investment in exploitation, including engineering, research and development, or licensing. One is enough.

The Commission rested on (B), Epson Portland's labor spending on making and packaging the cartridges in Oregon from January 2023 to June 2025. Applying Wuhan Healthgen v. ITC, 127 F.4th 1334 (Fed. Cir. 2025), under which significance "cannot hinge on a threshold dollar value or require a rigid formula," it adopted the ALJ's findings on how important these activities are to Epson's business and relied on two quantitative points: that the vast majority of the domestic industry cartridges are made in the United States, now supported by an estimate comparing the number Epson Portland manufactured with the number it packaged, and the labor spending viewed against Epson Portland's total costs for those cartridges.

In a footnote it added that it would have considered plant and equipment investments over the longer 2015-2024 period Epson mentioned, since such investments "can involve sizeable upfront costs but also ebb and flow over time," had Epson allocated them and argued their significance.

Sources: 19 U.S.C. § 1337(a)(2)-(3); 1451 opinion (EDIS doc. 897288).

An exclusion order normally reaches only the products of persons found in violation. A general order, binding on everyone, requires that it be necessary to prevent circumvention of a limited order, or that there be a pattern of violation and difficulty identifying the source of infringing products (§ 337(d)(2); 19 C.F.R. § 210.50(c)). When no one appears to contest the investigation, § 337(g)(2) allows a GEO "regardless of the source or importer" if the violation is shown by substantial, reliable and probative evidence and (d)(2) is met. Here every remaining respondent had defaulted.

The Commission found both grounds:

• Circumvention: several respondents kept selling after the investigation began; the cartridges are sold through third-party websites where the source is hard to trace; demand is strong and barriers to entry are low.
• Pattern and hidden sources: platforms do not disclose seller information; sellers used generic packaging, aliases, fake addresses and complex distribution channels; some respondents changed names or addresses to avoid detection.

Sources: 19 U.S.C. § 1337(d)(2), (g)(2); 19 C.F.R. § 210.50(c); 1451 opinion (EDIS doc. 897288).

A cease and desist order under § 337(f) reaches conduct inside the country, such as selling inventory already imported. The Commission issues CDOs where a respondent has commercially significant U.S. inventory or significant domestic operations, and it has inferred such inventory for defaulting respondents located here. It issued CDOs against Mountain Peak (City of Industry, California) and Straightouttaink (San Jose, California) for all five patents. Violating a final CDO carries a civil penalty of up to the greater of $100,000 or twice the domestic value of the goods, for each day of violation.

On the four public interest factors (public health and welfare, competitive conditions, U.S. production of like articles, U.S. consumers) the Commission found no evidence of harm; Epson and third parties can supply replacements, and a third party, Obelisk Tech Systems, Inc., supported the GEO.

During Presidential review, infringing goods may enter under a bond set to protect the complainant from injury (§ 337(j)(3); 19 C.F.R. § 210.50(a)(3)). The Commission rejected the complainants' premise that pricing information was lacking, since their investigator recorded what he paid, but set 100 percent anyway because the prices varied across products and respondents.

Sources: 19 U.S.C. § 1337(d)(1), (f), (j)(3); 19 C.F.R. § 210.50; 1451 opinion (EDIS doc. 897288).

The same Epson companies brought a second case on other patents, instituted the same day against the same twenty respondents; sixteen defaulted. The Commission found a violation of claims 1 and 7 of U.S. Patent Nos. 8,764,172, 9,370,934, 11,535,038, 12,240,248 and 12,240,249.

In II the ALJ had treated Epson's comparison of domestic spending with total costs as a "value-add" analysis and assumed the "Materials" and "Other" cost items were foreign. The Commission declined that assumption because the record did not show what share of those costs, if any, was foreign, and found significance on a holistic review instead: the cartridges are a large or growing part of Epson Portland's business, and the vast majority are manufactured in Oregon. It took no position on whether insurance expenses count as plant and equipment investment. The 1451 opinion cites the 1452 opinion and takes the same approach.

Sources: 1452 opinion (EDIS doc. 894281); 91 FR 53424 (Aug. 18, 2026); 1451 opinion (EDIS doc. 897288).

The two opinions mostly confirm how the Commission handles defaults by anonymous online sellers:

• Default is no shortcut on domestic industry. Although no one petitioned for review, the Commission took up the economic prong in both cases and asked how much of the product is made in the United States and whether foreign costs were counted.
• Holistic significance, not a ratio. Both apply Wuhan Healthgen, put the share of U.S. manufacturing first and treat cost comparisons as support; II refused a "value-add" figure the record could not support.
• Components. I tied the circuit board sellers' liability expressly to 35 U.S.C. § 271(c).
• A 100% bond despite available prices, because those prices varied.

Our own practical view, not a holding: a complainant expecting defaults should still quantify U.S. production against worldwide production, and allocate investments over a period that fits how they were made.

Sources: 1451 opinion (EDIS doc. 897288); 1452 opinion (EDIS doc. 894281); 91 FR 41658.

The President may disapprove the determination for policy reasons within the 60-day period beginning the day after he receives it; the U.S. Trade Representative acts by delegation. Absent disapproval, it becomes final the day after the period closes, or on approval. Until then the goods may enter only under the bond.

Our arithmetic, assuming receipt on the day each determination issued: the 1451 period runs through November 22, 2026, and the 1452 period ran through October 12, 2026. As of October 19, 2026, the Federal Register lists no later notice in either investigation.

• Appeal: a person adversely affected may appeal to the Federal Circuit within 60 days after the determination becomes final (§ 337(c)); see our guide to Federal Circuit appeals.
• Bond: the complainant may move for forfeiture within 90 days after Presidential review ends (19 C.F.R. § 210.50(d)).
• Duration: an exclusion order lasts until the Commission finds its conditions no longer exist; a party found in violation may petition to modify or rescind it (§ 337(k)).

The opinion does not address appeal. Our view: having defaulted and waived the right to contest the allegations, the respondents are poorly placed to challenge the findings.

Sources: 19 U.S.C. § 1337(c), (j), (k); 91 FR 41658 (USTR delegation); 19 C.F.R. § 210.50(d); Federal Register search.