In the Matter of Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof

The US International Trade Commission (ITC) upheld an administrative law judge's determination that Lamina Packaging Innovations LLC had failed to meet the domestic industry requirement in its patent infringement lawsuit against a group of more than a dozen companies, including makers of premium wines and spirits, soaps, and MP3 accessories. Lamina, characterized by the commission as a non-practicing entity (NPE) formed for the purpose of asserting patents, claimed that the use of certain packaging materials by the respondents had infringed the asserted patents. Lamina further contended that it satisfied the economic prong of the domestic industry requirement as a result of its own domestic licensing activities, as well as the domestic activities of its licensees.

Analysis Group Managing Principal Carla Mulhern was retained by counsel on behalf of the respondents to analyze Lamina's claims with respect to the economic prong of the domestic industry requirement. In this expedited matter, the first under the ITC's pilot program for hearing intellectual property disputes with a single potentially dispositive issue, Ms. Mulhern submitted an expert report, testified at deposition, and testified at the evidentiary hearing. Under the pilot program, the commission allows the administrative law judge 100 days to conduct fact finding and issue an initial determination on the dispositive issue.

Judge Theodore Essex's initial determination was that Lamina had "failed to satisfy the economic prong of the domestic industry requirement," therefore rendering moot questions of patent validity and infringement, and disposing of the case. However, Judge Essex also agreed with the complainant that the commission's order to expedite the investigation violated the Administrative Procedure Act.

Upon its review, the full commission upheld Judge Essex's finding regarding Lamina's failure to satisfy the domestic industry requirement and rejected his finding on the latter claim, saying that the early determination procedure did not substantially prejudice Lamina.