The U.S. International Trade Commission recently reversed its course on a patent infringement ruling, giving Crocs Inc. the possibility it might be able to block imports of competing Dawgs and Waldies foam clog footwear.
In 2008, the trade commission in Washington, D.C., had ruled against Niwot, Colo.-based Crocs and its ability to enforce two of its patents against Waldies-maker Effervescent Inc. of Fitchburg, Mass., and Dawgs-maker Double Diamond Distribution Ltd. of Canada.
But a 2010 U.S. Court of Appeals ruling overturned the trade commission ruling and sent the case back to the commission, who passed it to an administrative law judge. In February 2011, the judge ruled that one of the patents – U.S. Patent No. 6,993,858, particularly noting Croc’s foam-pivoting strap -- was enforceable and being infringed upon by Effervescent and Double Diamond.
Lawyers for both Effervescent and Double Diamond argued that Crocs had failed to disclose material -- including proper detail on pre-existing similiar-looking foam clogs -- to the U.S. Patent and Trademark Office when applying for the patent and therefore the patent should have never been issued.
The six-member commission received arguments by the companies in March 2011 and decided in late April 2011 not to further review the matter and uphold the judge’s ruling favoring Crocs. The commission requested written remedy submissions from the parties, which were due May 6. Replies to those submissions are due May 13.
Effervescent Inc. attorney Stephen Horace of Lathrop & Gage LLP told SNEWS® the company "disagrees with this decision and believes the ITC had it right the first time it considered this case.” He declined to comment on how the company would move forward.
Crocs officials did not return a request for comment by SNEWS.
Crocs initially filed the patent infringement case in 2006 against 11 companies, including Effervescent and Double Diamond. The other nine companies eventually dropped out of the case on consent order, settlement agreement or the commission’s determination of non-infringement.