Covington Secures ITC Victory for Manufacturers of Swabs Used to Test for COVID-19
March 20, 2023
WASHINGTON—Covington secured an important patent litigation victory before the U.S. International Trade Commission on behalf of its clients Wuxi NEST Biotechnology Co., Ltd., NEST Scientific Inc., NEST Scientific USA, Jiangsu Changfeng Medical Industry Co., Ltd., BioTeke Corporation (Wuxi) Co., Ltd., Miraclean Technology Co., Ltd., and Huachenyang (Shenzhen) Technology Co., Ltd. (collectively, “Covington’s clients”) who manufacture and sell a special type of swab used in COVID-19 testing.
On July 9, 2021, Copan Italia S.p.A. and Copan Industries, Inc. (“Copan”) filed a complaint alleging that Covington’s clients violated Section 337 by manufacturing and selling for importation flocked swabs and test kits that infringe Copan’s patents. The case raised significant public interest considerations because Copan sought to block a major source of the specialized swabs used in COVID-19 testing from the U.S. market.
On October 28, following a five-day evidentiary hearing, Administrative Law Judge Monica Bhattacharyya ruled that Covington’s clients did not infringe any of Copan’s patents and, as a result, no violation of Section 337 of the Tariff Act occurred. Judge Bhattacharyya also found that one of Covington’s clients had successfully designed around Copan’s flocked swab patents. The Initial Determination also struck a significant portion of Copan’s domestic industry contentions and evidence (a required element of a 337 case) based on Copan’s failure to timely disclose its contentions.
On Friday March 17, the ITC issued a 4-page notice affirming Judge Bhattacharyya’s decision that no violation of Section 337 occurred. The Commission expressly affirmed Judge Bhattacharyya’s findings of non-infringement and no technical domestic industry while adding some supplemental reasoning. Copan now has 60 days to appeal to the United States Court of Appeals for the Federal Circuit.
The Covington team representing the swabs manufacturers included Sturgis Sobin, Brian Nester, Ruixue Ran, Dan Valencia, Sheng Huang, Dale Rice, Heng Gong, Amy Bond, Natalie Ritchie, Alexander Wang, former associate Cody Reeves, Justin Wang, Yan Guo, former legal consultant Andrew Wang, Marissa Golub, Julie Romanow, and Amanda Lee.
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