Declining Domestic Investments May Still Qualify As Significant

In a recent decision, the ITC rejected respondent's argument that complainant did not meet its domestic industry ("DI") requirements because of declining investments over the years leading up to the Complaint. In re Certain Magnetic Data Storage And Tapes And Cartridges Containing The Same (II), Inv. No. 1076 Initial Determination (October 25, 2018). ALJ Cheney found that even in such circumstances the investment qualified as "significant" and therefore met the economic prong of the DI requirement. The key factor in the ITC's analysis was that the complainant maintained ongoing qualified activities with respect to relevant products.

In this investigation, Complainants ("Fujifilm") accused Respondents ("Sony") of infringing patents related to magnetic tape media for data storage. In order to find that a violation of Section 337 had occurred, ALJ Cheney analyzes Fuljifilm's domestic industry investments.