Default Determination Highlights The Importance Of Alleging Every Element

A recent ITC decision, stemming from a default initial determination, underscores the importance of alleging every element in a complaint.  19 U.S.C. § 1337(g)(l) provides that the Commission, when making a determination on exclusion for a defaulting respondent, "shall presume the facts alleged in the complaint to be true."  Those allegations, however, must still show that the respondent violated Section 337.  In Certain Carbon Spine Board Devices, Inv. No. 337-TA-1008, the ITC investigated Complainant Laerdal's allegations of section 337 violations based on the infringement of certain U.S. patents, copyrights, trade dresses and trademarks.  The ITC determined to issue a limited exclusion order to some, but not all of the respondents, and a cease and desist order to one respondent.  But the Commission also found that certain of Laerdal's allegations relating to trade dress and copyright infringement were not adequately plead to support a violation of Section 337 which