Trade Courts Update for Week of March 9, 2016

United States Court of International Trade


Court Denied Motion to Take Judicial Notice

In Tri Union Food Products, Inc. et al., v. United States, et al., Consolidated Court No. 14-249, Slip Op. 16-20  (March 8, 2016), the court reviewed a motion for judicial notice filed by Consolidated Plaintiffs Vietnam Association of Seafood Exporters and Producers and certain of its individual member companies (collectively “VASEP”). In the Motion, VASEP asked that the court take judicial notice of certain information in further support of its USCIT Rule 56.2 motion for judgment on the agency record challenging the U.S. Department of Commerce’s (“Department” or “Commerce”) final determination in the eighth administrative review of the antidumping duty order covering certain frozen warmwater shrimp from the Socialist Republic of Vietnam for the period of February 1, 2012 through January 31, 2013.  Specifically, VASEP wanted the court to take judicial notice of (1) public comments submitted by university professors, and (2) academic articles on Cohen’s d methodology.

However because VASEP’s motion did not address either condition precedent for judicial notice, that is, it did not information showing the matter or item to be noticed“is generally known within the trial court’s territorial jurisdiction,” or, alternatively, “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” (see Fed. R. Evid. 201(b)), VASEP failed to satisfy the applicable evidence rule.  VASEP did not show that the two items under potential judicial notice contained information that was not subject to reasonable dispute.  According to the court, “Judicial notice is not meant to circumvent the creation and review of an agency record.”  Slip Op, pgs. 11-12. Thus, VASEP’s motion was denied.


Motion for Extension Granted; Cross-Motion to Stay Denied

In a case regarding the classification of children’s bicycle seats, the court denied a motion to stay to consider partial motion to dismiss and granted defendant’s motion to extend to the time to answer pending a decision on the partial motion to dismiss.   In Kent International, Inc. v. United States, Court No. 15-135, Slip Op. 16-21 (March 8, 2016), the defendant moved for summary judgment on Count II, where plaintiff contends that Customs has an established and uniform practice of classifying child bicycle seats under HTSUS subheading 9401.80, and Count III where plaintiff claims that it is entitled to the same treatment afforded other importers of child bicycle seats pursuant to 19 C.F.R. § 177.12 and that the imported bicycle seats are classifiable under HTSUS subheading 9401.80. 

Defendant moved for an extension of time to answer Count I of the case which dealt with the proper classification of the imported child bicycle seats, pending a decision on the partial motion for summary judgment.  Plaintiff then cross-moved to stay partial consideration of the motion for summary judgment, pending a decision the court’s decision of Count I. The court agreed with defendant that the most efficient course was to follow the ordinary litigation sequence and toll defendant’s time to answer while the court resolved the partial motion to dismiss. Finding that staying consideration of the motion to dismiss would create dual tracks of litigation, the court denied plaintiff’s motion to stay. 


U.S. Court of Appeals for the Federal Circuit


Federal Circuit Recognizes Patent Agent-Client Privilege for Communications

Although not directly related to international trade, a significant new decision of the Federal Circuit court of appeals deserves note.

In re: Queen’s University of Kingston, No. 2015-145 (March 7, 2015), a university entangled in a patent suit against Samsung was asked to produce communications with its non-attorney patent agents who were licensed to practice before the U.S. Patent and Trademark Office. The university claimed that the documents were privileged, but a Federal District Court in Texas held that no privilege existed because the patent agents were not attorneys. The University asked the Federal Circuit for a writ of mandamus.

Calling the matter a case of first impression, the Federal Circuit held that it would recognize a privilege for communications between non-lawyer patent agents and their clients. In so ruling, the Court looked to the history of agent practice before the USPTO, and held that Congress intended to give patent seekers the right to choose between using attorneys and non-attorney agents, a right which would become moot if an agent-client privilege were not recognized.

The Court noted, however, that the privilege was limited to communications made in the course of the agent’s activities as authorized in USPTO regulations – preparing and filing patent applications, consulting with a client in anticipation of filing a patent application or other document, communicating with the PTO or preparing public communications in connection with such activities or proceedings before the Patent Trial and Appeal Board. It would not extend to other activities, such as offering advice to a client regarding the validity of another party’s patent in anticipation of litigation or purchase of the patent would not be covered by the privilege.

The Federal Circuit reversed the order of the District Court compelling disclosure of the communications, and remanded the case with instructions to apply the privilege as set out in its opinion.

Judge Jimmie Reyna dissented from the panel opinion, stating that there was a presumption against the creation or recognition of new privileges, and that the rules of litigation favored disclosure by parties of the information necessary to resolution of the dispute.