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McAndrews, Held & Malloy Secures Second Victory For Sinochem Concerning U.S. International Trade Commission Investigation

Date: September 24, 2009 || Client Successes

McAndrews, Held & Malloy announced today that it has secured a second victory within the last 60 days for its client Sinochem Environmental Protection Chemicals (Taicang) Co., Ltd. before the U.S. International Trade Commission (ITC).  In the latest victory, the presiding administrative law judge of the ITC ruled that Sinochem did not violate a consent order in a patent case involving a process for making a refrigerant.  

The ruling concerns a complaint by INEOS Fluor Holdings Ltd., INEOS Fluor Ltd. and INEOS Fluor Americas LLC (collectively, “INEOS”) in investigation No. 337-TA-623, alleging that Sinochem violated a consent order entered earlier in that action. 

The August 2008 consent order involved an agreement to stop U.S. importation activity with respect to a certain process used to produce R-134a refrigerant, which is a widely used alternative to ozone-depleting CFC (chlorofluorocarbon) refrigerant.  Sinochem had redesigned its refrigerant-making process, and INEOS had earlier conceded that the new design did not infringe two of the three patents asserted by INEOS.  

In the enforcement action, INEOS had asserted that Sinochem had violated the consent order by failing to convert to the new process and by shipping refrigerant manufactured using the old process, which refrigerant was allegedly imported and sold after entry of the consent order by the ITC in 2008.

INEOS had sought civil fines of up to $100,000 per day, which could total about $36 million up to the present.  

“Our client is very pleased with this second victory before the ITC,” said Thomas J. Wimbiscus, a shareholder at McAndrews and lead counsel on the case.  “We strongly felt that INEOS’ legal theories were wrong as a matter of law.”

George P. McAndrews, founding partner at McAndrews, added, “Interestingly enough, the administrative law judge also ruled ‘that no enforcement measures are appropriate should the Commission find a violation of said consent order.’ ”

In the previous Sinochem victory in August 2009, the ITC found the remaining one of the three patents asserted by INEOS invalid and terminated investigation No. 337-TA-623 with a finding of no violation by Sinochem.  That ruling was a reversal of the conclusion reached in the Remand Determination issued previously by the presiding administrative law judge.  The reversal resulted from two successful petitions to review the decisions of the administrative law judge who had twice ruled against Sinochem.

McAndrews attorneys Thomas J. Wimbiscus, George P. McAndrews, Alejandro Menchaca and Yufeng (Ethan) Ma represented Sinochem.