Wednesday, September 17, 2014

Revolaze and the ITC

On August 15h, Revolaze filed patent infringement lawsuits against 17 importers of denim products.  They followed this up on August 18th with a complaint against the same 17 importers requesting a 337 investigation from the US International Trade Commission (ITC).  If successful, the 337 complaint could result in an exclusion order which would prevent the import of the infringing products into the US.  

Revolaze manufactures laser etching technology for multiple uses including etching patterns in denim and denim abrasion technology that replaces the existing sandblasting and enzyme processing techniques used by the industry.  They own 16 US patents on the technology and claim another 13 patents worldwide.  I believe they have 9 additional US applications pending.  I haven’t seen the infringement or 337 complaints so I cannot definitively say which patents Revolaze is trying to enforce.  However, if you want a feel for what is going on, I would start with their denim patents 6495237, 6807456, 6819972, 6858815 and then two of their broader patents 6140602 and 7699896.

So what specifically is a 337 complaint?  The 337 complaint gets its name from the section of the original law that created it:  Section 337 of the Tariff Act of 1930.  In this section, now also known as 19 USC §1337, unfair methods or unfair acts of competition are declared unlawful when they result in substantial injury to an industry, prevent the establishment of an industry or restrain or monopolize trade and commerce in the United States. 

The law also prohibits the importation of articles that infringe on a US patent.  This protection extends to articles that may not themselves infringe on a patent but were manufactured with a process that does infringe on a US patent.  The law also prohibits import of articles that infringe on copyrights and trademarks as well as other forms of intellectual property protection.  These protections apply when an industry exists within the United States that is related to the protected articles.  The indicators that an industry exists are:  significant investment in plant and equipment, significant employment of labor and capital, or substantial investment in its exploitation, including engineering, research and development, or licensing. 

By law the ITC has to initiate an investigation on receipt of a complaint alleging a violation, It can also initiate an investigation on its own authority.  If, after its investigation, the ITC determines that a violation has occurred it has three options:  it can exclude the articles from entry, it can permit the articles to enter under bond, or it can issue a cease and desist letter.  Normally the ITC excludes the articles from entry.  The other options appear to be available for situations where the determinations aren’t final, for example when a decision is under appeal or a consent order is agreed to.

One advantage of using a 337 proceeding to supplement an infringement lawsuit is that it is an expedited process.  Typically, evidence is heard within a year and a decision is usually issued in 16 months.  And because this schedule is statutory in nature defendants are less able to delay the proceedings through the use of indefinite extensions or other devices.  However, a 337 proceeding only provides import relief.  An infringement lawsuit is still required when a plaintiff wants monetary damages or an injunction against domestic infringement.     

While 337 proceedings are well known in the electronics industries, their use in other industries, including textiles, has been limited.  However, it is available to all US patent holders.   And based on the reaction of the apparel industry to this case, it would seem to be a pretty powerful tool.

Below is a summary of selected patents that have been recently issued in textile related classification codes:

Impact-attenuation members with lateral and shear force stability and products containing such members:  It’s a different bud and different shoe, but the invention is the same as 8689466.  Patent:  8689466.  Inventor:  Aveni,  Assignee:  Nike, Inc.

Sole structure with visual effects:  A multi-colored effect for a sole for an article of shoe. . Patent:  8689467.  Inventor:  Miner.  Assignee:  Nike, Inc.

Footwear cleat:  A golf cleat with a series of dynamic structures that hold the cleat in place during the stresses of a golf swing.  Patent:  8689468.  Inventor:  Curley.  Not Assigned.

Removable spat for a shoe:  A removable spat to protect a shoe from the mud an muck of outdoor wear.  The spat includes a boot portion having a back opening and a front end, and a sleeve connected to the boot portion. Patent:  8689469.  Inventor:  Foxen,  Assignee:  Nike, Inc.

Internal support structure for an athletic support bra, and associated method of fabrication:  A support structure for a bra includes a two-ply structural support layer having an m-shaped ply of compression fabric.  When joined with straps of a sports bra or top, the two-ply structural support layer provides sling-type support of the breasts. Compressive fabric of the bra or top compresses the breasts to a wearer's chest; thus, a bra or top incorporating the support structure provides three-way support via encapsulation, suspension and compression.  Patent:  8690634.  Inventors:  Heath and Krueger.  Assignee:  Sturdy Girl Sports, LLC

Jim Carson is a principal of RB Consulting, Inc. and a registered patent agent.  He has over 30 years of experience across multiple industries including the biotechnology, textile, computer, telecommunications, and energy sectors.  RB Consulting, Inc. specializes in providing management, prototyping, and regulatory services to small and start-up businesses.  He can be reached via email at or by phone at (803) 792-2183.

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