On April 17, 2009, an Enforcement Initial Determination (ED) of the Administrative Law Judge (ALJ) was issued by the United States International Trade Commission in the Matter of “Certain Ink Cartridges and Components Thereof”, Investigation No. 337-TA-565, Consolidated Enforcement Proceeding and Enforcement Proceeding II.
Ninestar told Recycler “This is a recommendation only and not the final determination of the Commission. It is the position of the Ninestar Respondents, Ninestar China, Ninestar U.S. and Town Sky that the initial determination contains a number of errors, including, for example, double and treble penalties.
“Ninestar Respondents are entitled to file a petition for reconsideration of the decision and we will do so. It will then be the responsibility of the Commission to decide what, if any, penalties to assess.”
Should the Commission decide to assess penalties; the Ninestar Respondents will have the opportunity to appeal any such decision to the Court of Appeals for the Federal Circuit. Should the Court of Appeals for the Federal Circuit determine that penalties should be assessed; the Ninestar Respondents will have the opportunity to ask the United States Supreme Court to review such a decision.
According to Ninestar, the fundamental issue which these proceedings raise is whether or not the Jazz Photo case, which limits the patent exhaustion doctrine to sales first made in the United States, is still the law or will remain the law in light of recent case law, including a recent Supreme Court decision.
“It is the Ninestar Respondents’ belief that the Jazz Photo doctrine either has been or will be overturned.” Ninestar commented. “Because of this fact, along with other fundamental errors in the ED, Ninestar is confident that the recommended penalty will not be imposed on the Ninestar Respondents.”
Ninestar continued “In addition, the validity of the patents involved in the ITC proceedings is an issue in the patent dispute between the Ninestar Respondents and Seiko Epson Corporation presently pending in the District Court in Oregon. Certain other patents of Seiko Epson are also being re-examined by the United States Patent and Trademark Office.
“Should any of those patents be determined to be invalid, then such a determination would have a direct impact on the authority of the International Trade Commission to impose penalties on the Ninestar Respondents.
“The disputes between Ninestar Respondents and Seiko Epson, who requested Government intervention in the ITC matters, are far from settled.” Concluded Ninestar.