Lucky Litter LLC Announces International Trade Commission Review of Initial Determination
CHICAGO-(Business Wire)-February 12, 2009 - Lucky Litter LLC is pleased to announce that, as the result of petitions for review filed by Lucky Litter and others, on February 9, 2009, the U.S. International Trade Commission issued a notice that it will review the December 1, 2008 Initial Determination ("ID") by an Administrative Law Judge (“ALJ”), which concluded that Lucky Litter's ScoopFree automatic litter box models LB1 and LB2 infringed only claim 33 of U.S. Patent No. Re. 36,847 ("the '847 patent"). In its petition, Lucky Litter contended that claim 33 is invalid and not infringed. The Commission's February 9th notice requests additional briefing on the issues of “invalidity due to anticipation; invalidity due to obviousness; and direct and contributory infringement."
The International Trade Commission has set April 7, 2009, as the target date for completion of the investigation. The Commission has also requested further briefing by parties to the investigation, as well as "interested government agencies, and any other interested parties" on the issues of remedy, public interest and bonding, in the event that the Commission decides to issue an exclusion order. The deadline for such submissions is February 20, 2009.
In December, Lucky Litter announced that it had ceased producing the LB1 and LB2 models that were accused of infringement in the ITC Investigation. Since then, Lucky Litter has been shipping redesigned ScoopFree automatic litter boxes, which bear model numbers SX1, SX1-E and SX2. These redesigned products exclude a minor feature that the ALJ found necessary in order for the LB1 and LB2 models to infringe claim 33 of the '847 patent.
Prior to the Commission's announcement, Lucky Litter learned that representatives of Applica Consumer Products, Inc. (LitterMaid) had sent false and misleading communications to customers, incorrectly suggesting that the December 1, 2008 Initial Determination required Lucky Litter to cease importing and selling all ScoopFree litter boxes and replacement litter tray cartridges. To make the record clear, no order has been issued by the Commission. Neither Lucky Litter nor its customers have been prohibited from marketing ScoopFree products.
On January 15, 2009, Lucky Litter filed a counter-suit against Applica seeking redress for violation of the antitrust laws, tortious interference with Lucky Litter's business relations with its customers and false advertising. Lucky Litter intends to vigorously pursue its claim against Applica and to defend itself against Applica's charges of infringement.
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