No Invalidity Defense For Defaulting Respondent In Enforcement Proceeding

As discussed in our November 3, 2016, post, defaulting at the ITC to avoid the cost of litigation is a risky strategy.

In Certain Beverage Brewing Capsules, Components Thereof, And Products Containing the Same, Inv. 337-TA-929, Eko Brands, LLC defaulted in the ITC's original investigation and the Commission concluded that Eko infringed claims 8 and 19 of U.S. Patent No. 8,720,320 even though the Commission also determined independent claims 5 and 18, from which claims 8 and 19 depend, were invalid for lack of written description support.

After Eko defaulted, the investigation proceeded against the other respondents. During the investigation, Complainants Adrian Rivera and Adrian Rivera Maynez Enterprises ("ARM") dropped claims 8 and 19 from the proceeding as to the non-defaulting respondents. At the conclusion of the Investigation, the Commission found that there was no written description support for certain limitations in claims 5 and 18, and it