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EOS denied reversal by the USITC

October 9, 2019


The USITC’s headquarters in Washington D.C.

In July, US cartridge collector, Environmental Office Solutions (EOS), filed requests to reverse the seizure and forfeit orders, issued on Epson and Lexmark’s behalf by the USITC, citing the Supreme Court decision in the Impression Products v Lexmark case.

The general exclusion orders and cease and desist orders were issued to EOS by the USITC relating to investigation numbers 337-TA-565 (Epson) and 337-TA-740 (Lexmark) on 27 August 2015 when EOS attempted to import used/ empty cartridges.

In its requests, EOS stated that “these products that were attempted to be imported by Environmental Office Solutions, specifically used/empty cartridges, were not part of that investigation,” and added that the Supreme Court Opinion in the Impression Products v Lexmark case states that patent exhaustion occurs after the initial sale of the cartridge.

EOS requested that the USITC rescinds the issuance of the seizure and forfeit orders, so that as a result, “importation and sale of those cartridges would not constitute a violation any violation of any remedial order,[…].”

However, in decisions published on 8 October by USITC, EOS was denied the reversal. The USITC documents state in both cases: “The Commission has determined to deny the petitions because they fail to articulate any factual basis or legal authority for rescinding the SFOs. Although the petitions cite the Lexmark decision, they provide no allegation or explanation for understanding how the decision allegedly applies to the rescission requests. Therefore, the petitions fail to establish that the “conditions which led to the [SFOs] no longer exist.” See 19 U.S.C. § 1337(k)(l).”

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