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McAndrews, Held & Malloy Secures Victory For Sinochem

Date: August 5, 2009 || Client Successes

McAndrews, Held & Malloy announced today that it has secured a victory for its client Sinochem Modern Environmental Protection Chemicals (Xi’an) Co., Ltd.; Sinochem Ningbo Ltd.; Sinochem Environmental Protection Chemicals (Taicang) Co., Ltd.; and Sinochem (USA), Inc. (collectively, “Sinochem”) in a U.S. International Trade Commission (ITC) investigation.  The case involved a patent claim on a process for making a refrigerant that replaces an ozone-depleting coolant.  The ITC terminated the investigation with a finding of no violation.

The investigation (No. 337-TA-623) began in December 2007 when INEOS Fluor Holdings Ltd., INEOS Fluor Ltd. and INEOS Fluor Americas LLC (collectively, “INEOS”) filed a complaint alleging that Sinochem infringed its U.S. Patent No. 5,559,276.  The case concerned the importation into the United States, the sale for importation and the sale within the United States of Sinochem’s “R-134a” coolant.  

This week, the ITC said that it would reverse 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.  

“The Commission finds that the claim would have been obvious to one of ordinary skill in the art and is therefore invalid,” the ITC’s notice said.

“This was a long, hard-fought case that should have been concluded long ago, but we believe in never giving up,” said Thomas J. Wimbiscus, a shareholder at McAndrews and lead counsel on the case.  “In the end, the Commission saw through misrepresentations that misled the chief administrative law judge, and found the asserted patent claim invalid on the admitted state of the art alone.” 

McAndrews partner Yufeng (Ethan) Ma added, “Certainly, our clients are very pleased with the ITC's final determination.  They view the result as a demonstration of the fairness of the ITC and the U.S. justice system toward foreign respondents such as Sinochem.”

R-134a is a widely used coolant that is an environmentally safe alternative to ozone-depleting CFC (chlorofluorocarbon) refrigerant.  INEOS is a successor to Imperial Chemicals Industries – one of the most active sellers and distributors of CFC refrigerant R-12.  Scientific evidence suggests that ozone layer depletion will be responsible for thousands of deaths and tens of millions of cases of skin cancer in the coming decades.  

The victory was attained despite an attempt by two members of the Louisiana Congressional delegation to intervene in the case. During the week prior to the ITC’s ruling, U.S. Sens. Mary L. Landrieu and David Vitter of Louisiana wrote a joint letter to the ITC noting their "concern" regarding the ongoing review involving INEOS, which is based in St. Gabriel, La.  In their letter, the senators called the review of the current decision of the ITC judge "overkill" and reminded the Commission of "its duties to protect U.S. industry from unfair foreign competition … particularly in light of the current economic situation."

“The senators’ action was appalling – not only because justice should be allowed to prevail without political interference – but also because Sinochem’s process helps solve a very serious global, environmental issue, and INEOS had tried to monopolize it through an invalid patent,” said George P. McAndrews, founding partner at McAndrews.  “Our client is ecstatic that the U.S. system of justice operated fairly here, and that their opponent will not be allowed an unfair monopoly.”

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