Flexsys America L.P. has vowed to keep fighting its patent infringement claim before the International Trade Commission, despite a federal appeals court ruling against an ITC decision in Flesxys' favor.
Flexsys claimed that Chinese chemical firm Sinorgchem Co. Shandong used Flexsys technology without Flexsys' permission to make the rubber antidegradant 6PPD and its feedstock, 4-ADPA. The company also claimed that Sovereign Chemical Co., Sinorgchem's Akron-based sales agent, violated Flexsys' patent rights when it sold Sinorgchem's 6PPD and 4-ADPA in the U.S.
Flexsys filed a claim before the ITC, and in July 2006 the agency ruled both Sinorgchem and Sovereign had violated Section 337 of the Tariff Act. It ordered both companies to stop selling 6PPD and 4-ADPA in this country.
Sinorgchem appealed, and in December 2007 a three-judge panel of the U.S. Court of Appeals for the Federal Circuit voted 2-1 to reverse and remand the ITC order. On April 7, the court denied Flexsys' motion for an en banc rehearing before the entire 11-judge Federal Circuit panel. One week later, on April 14, the court made its December decision official.
"While the circuit court ruled in Sinorgchem's favor in regard to one theory-literal infringement-it remanded the case back to the ITC to consider another theory, doctrine of equivalence," said Tim Wessel vice president of antidegradants and Crystex for Flexsys. "Flexsys intends to pursue this matter with the ITC."
The Section 337 exclusion order remains in effect while the ITC reconsiders it, and Flexsys will strive to keep it in effect, Wessel said.
Manni Li, an attorney for Sinorgchem, declined comment on the latest court action. The latest order merely confirms the court's decision from late last year, she said, and it is very rare for the appeals court to grant en banc rehearings.