USITC Institutes Section 337 Investigation on Certain Cellular Signal Boosters, Repeaters, Bi-directional Amplifiers, and Components

Simon Lester -

On February 22, the U.S. International Trade Commission (USITC) announced that it had voted to institute three separate Section 337 investigations of certain cellular signal boosters, repeaters, bi-directional amplifiers, and components thereof. The complaint in the case alleges violations of Section 337 on the basis that the products infringe certain patents. (Section 337, Tariff Act of 1930, provides for “Unfair import … investigations [that] most often involve claims regarding intellectual property rights, including allegations of patent infringement and trademark infringement by imported goods.”) The complainants are seeking to exclude these imported products from the U.S. market. One of the companies identified by the complainant is located in China.

The formal Notices of Institution of Investigation for the three investigations are here, here, and here. The USITC’s Chief Administrative Law Judge will now assign the cases to one of the USITC’s administrative law judges (ALJ).  The ALJ will make an initial determination as to whether there is a violation of Section 337. That initial determination will then be subject to review by the USITC. The announcement further states that: “The USITC will make final determinations in the investigations at the earliest practicable time.  Within 45 days after institution of the investigations, the USITC will set target dates for completing the investigations.” The Federal Register notices for the institution of these investigations are here, here, and here.

The complaint, which was filed on January 21, 2021, contains the following factual and legal explanations and arguments from the complainant.

The complainant is Wilson Electronics, a Delaware limited liability company with its principal place of business in St. George, Utah. With regard to the respondents, the complaint says: “Respondents are manufacturers, retailers, and/or wholesalers who make, have made, and/or have sold Signal Boosters using the Complainant’s patented technology. Respondents make for import, import, and/or sell within the United States after importation the infringing SureCall Products identified in Paragraph 30. ” In its announcement, the USITC identified the following respondents:

  • Cellphone-Mate, Inc. d/b/a SureCall of Fremont, CA; and
  • Shenzhen SureCall Communication Technology Co. Ltd. of Shenzhen, China.

The products at issue are certain signal boosting products, used “to amplify signals between mobile electronic devices and base stations/cell sites to provide consistent connectivity.” The products are described in the complaint as follows:

65. Wilson Electronics currently manufactures and sells in the United States at least ten (10) representative Signal Boosters that practice the Asserted Patents: weBoost Installed Home Complete (Generation 2), weBoost Home Multiroom (Generation 2), weBoost Home Room, weBoost Drive Reach, weBoost Drive X, weBoost Drive Sleek, WilsonPro Enterprise 4300, WilsonPro Enterprise 1300, WilsonPro Pro 1100, WilsonPro Pro 70 Plus (the “Domestic Industry Products”). Exhibits 11A-L to 20A-L. The Domestic Industry Products are generally representative in terms of operation, technology and design of other Wilson Electronics’ products, including at least the following: weBoost Drive 3G, weBoost Connect 4G, weBoost eqo, WilsonPro Enterprise 4300 R, WilsonPro Enterprise 1300R, WilsonPro Pro 1000, WilsonPro Pro1050, WilsonPro Pro 4000, WilsonPro Pro IoT 2-Band, WilsonPro Pro IoT 5-Band. Wilson manufactures other products that practice the Asserted Patents.

66. The Wilson Electronics products that are representative of the Domestic Industry Products are Signal Boosters that amplify cellular signals received to and from a base station/cell site while minimizing the distortion of the signals, maintaining the appropriate output power level, and reducing any accompanying increased noise floor, power overload, oscillation, and signal distortion that may be associated with using amplifiers, using technology covered by the Asserted Patents. The Domestic Industry Products include bi-directional 5 band boosters that amplify cellular signals. One side of the booster includes an antenna that receives a cellular signal from a cellular mobile electronic device while another side of the booster communicates with a base station/cell site via another antenna. The boosters transmit and amplify the uplink and downlink signals for Bands 2, 4, 5, 12, 13, 17, and 25 (i.e., for AMPS, AWS, LTE, and PCS). The boosters have no modulation circuitry. Instead, they are linear amplifiers in both the uplink and the downlink directions. The modulation of the signals is determined by the base station/cell site. The boosters are designed to amplify LTE, CDMA, GSM, EDGE, HSPA, and EVDO modulated signals. While the operation of the articles are similar, the specific electrical configurations are tailored for mobile/vehicle applications, residential applications, or commercial/industrial/enterprise applications.

The patent infringements are described broadly in the complaint as follows:

V. UNLAWFUL AND UNFAIR ACTS OF THE PROPOSED RESPONDENTS

69. Respondents manufacture for importation, have others manufacture for importation, import into the United States, offer for sale, and/or sell in the United States after importation infringing Signal Boosters including, but not limited to the SureCall Products. The SureCall Products infringe the Asserted Claims as detailed in the claim charts applying the Asserted Claims to the SureCall Products, attached as Exhibits 7A-L, 8A-L, and 9A-L. The SureCall Products infringe literally or under the doctrine of equivalents, both directly and indirectly.

The complaint follows with more specific details on these infringements, including specific instances of importation and sale.

The relief requested by the complainants is as follows:

c) issue a limited exclusion order pursuant to 19 U.S.C. §1337(d)(1) excluding from entry for consumption into the United States, entry for consumption from a foreign trade-zone, or withdrawal from a warehouse for consumption, certain Signal Boosters that infringe one or more claims of the Asserted Patents and which are manufactured by or on behalf of, or imported by or on behalf of Respondents, or any of its affiliated companies, parents, subsidiaries, or other related business entities, or its successors or assigns, for the remaining terms of the Asserted Patents, except under license of Complainant or as provided by law;

d) issue a permanent cease-and-desist order pursuant to 19 U.S.C. §1337(f) directing Respondents and any of its principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled (whether by stock ownership or otherwise) or majority-owned business entities, successors, and assigns, to cease and desist from either directly engaging in or for, with, or otherwise on behalf of Respondents, (A) importing or selling for importation into the United States certain Signal Boosters that infringe one or more claims of the Asserted Patents; (B) marketing, distributing, offering for sale, selling, or otherwise transferring, in the United States certain imported Signal Boosters that infringe one or more claims of the Asserted Patents; (C) advertising certain imported Signal Boosters in the United States that infringe one or more claims of the Asserted Patents; (D) soliciting U.S. agents or distributors for certain imported Signal Boosters that infringe one or more claims of the Asserted Patents; or (E) aiding or abetting other entities in the importation, sale for importation, sale after importation, transfer, or distribution of certain Signal Boosters that infringe one or more claims of the Asserted Patents;

e) impose a bond during the 60-day Presidential review period pursuant to 19 U.S.C. § 1337(e)(1) and (f)(1) to prevent further injury to Complainant’s domestic industry relating to the Asserted Patents; and

f) grant such other relief as the Commission deems just and proper based on the facts determined by the investigation.

According to the Section 337 complaint, Wilson Electronics also filed a complaint in the U.S. District Court for the District of Utah on April 19, 2017, and a Second Amended Complaint in the same case on September 30, 2019, accusing SureCall of infringing the Asserted Patents. The case was reassigned to a new Judge on December 10, 2020.