Certain Foam Footwear; Institution of an Advisory Opinion Proceeding

On December 23, 2021, the U.S. International Trade Commission published in the Federal Register (86 FR 72992) [Investigation No. 337-TA-567 (Advisory Opinion Proceeding 3] Certain Foam Footwear; Institution of an Advisory Opinion Proceeding.

The Commission instituted the underlying investigation on May 11, 2006, based on a complaint, as amended, filed by Crocs, Inc. of Niwot, Colorado. 71 FR 27514-15 (May 11, 2006). The complaint alleged, inter alia, violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain foam footwear, by reason of infringement of claims 1-2 of U.S. Patent No. 6,993,858 (``the '858 patent'') and U.S. Patent No. D517,789 (``the '789 patent''). The notice of investigation named several respondents.

On July 25, 2008, the Commission issued a final determination finding no violation of section 337 based on non-infringement and failure to satisfy the technical prong of the domestic industry requirement with respect to the '789 patent and based on invalidity of the '858 patent as obvious under 35 U.S.C. 103. 73 FR 45073-74 (Aug. 1, 2008). On July 15, 2011, after an appeal to the U.S. Court of Appeals for the Federal Circuit and subsequent remand vacating the Commission's previous finding of no violation, the Commission found a violation of section 337 based on infringement of the asserted claims of the patents and issued, inter alia, a general exclusion order (``GEO''). 76 FR 43723-24 (July 21, 2011). On March 28, 2020, the '789 patent expired, so the GEO is now only directed to articles that infringe one or more of claims 1 and 2 of the '858 patent.

On November 17, 2021, non-respondent, Triple T Trading Ltd. (``Triple T'') of Marysville, Washington, petitioned for institution of an expedited advisory opinion proceeding to determine whether its fleece-lined shoes and shoes with plastic washers are covered by the GEO. On November 29, 2021, Crocs opposed Triple T's petition for an expedited advisory opinion proceeding. On December 9, 2021, Triple T filed a motion for leave to respond to Crocs' opposition. The Commission has determined to grant the motion.

The Commission has determined that Triple T's petition complies with the requirements for institution of an advisory opinion proceeding under Commission Rule 210.79 to determine whether its fleece-lined shoes and shoes with plastic washers fall within the scope of the GEO. Accordingly, the Commission has determined to institute an advisory opinion proceeding and refer it to the Office of the General Counsel. The parties will furnish the Office of the General Counsel with information as requested in the accompanying order, and the Commission will issue an advisory opinion within ninety (90) days of the date of publication of this notice in the Federal Register. The following entities are named as parties to the proceeding: (1) Triple T and (2) Crocs.