UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`In the Matter of
`
`CERTAIN SOFT PROJECTILE
`LAUNCHING DEVICES, COMPONENTS
`THEREOF, AMMUNITION, AND
`PRODUCTS CONTAINING SAME
`
`Inv. No. 337-TA-1325
`
`ORDER NO. 13: ORDER DENYING RESPONDENT GEL BLASTER’S
`MOTION FOR ENTRY INTO THE INTERIM INITIAL
`DETERMINATION PILOT PROGRAM [MOTION DOCKET
`NO. 1325-006]
`
`I.
`
`INTRODUCTION AND PARTY POSITIONS
`
`(November 23, 2022)
`
`On November 2, 2022, Respondent Gel Blaster, Inc. (“Gel Blaster”), filed a motion
`
`(“Motion”) together with a memorandum of law in support of its motion (“Memorandum”) for
`
`entry into the interim initial determination pilot program (“Pilot Program”) that the Commission
`
`announced in May 2021.1 (Motion Docket No. 1325-006; Mot. at 1.). The issues which Gel
`
`Blaster would like addressed in an early initial determination as part of the Pilot Program are: (1)
`
`Complainant Hasbro, Inc.’s (“Hasbro” and with Gel Blaster (“the Private Parties”) and with
`
`Commission Investigative Staff (“Staff”) “the Parties”) alleged breach of contract of an August
`
`1, 2021 Common Interest Agreement (“Common Interest Agreement”) between Gel Blaster and
`
`Hasbro; and (2) Hasbro’s “pre-Investigation business misconduct,” which would include Gel
`
`1 Pilot Program Will Test Interim ALJ Initial Determinations on Key Issues in Sec. 337 Investigations
`(May 21, 2021), https://www.usitc.gov/press_room/featured_news/-337pilotprogram.htm [Program
`Announcement].
`
`Page 1 of 5
`
`PUBLIC VERSION
`
`

`

`Blaster’s defense of “unclean hands” and implied waiver of its intention to enforce its patents.
`
`(Mem. at 1, 13.).2 Among other provisions, the Common Interest Agreement sets forth Gel
`
`Blaster and Hasbro’s shared interest in defending against certain Complainant Spin Master,
`
`Inc.’s (“Spin Master”) patents, including two (2) patents that Hasbro purchased and that are
`
`implicated as Asserted Patents in this Investigation, U.S. Patent Nos. 8,371,282 (“’282 patent”)
`
`and 8,640,683 (“’683 patent” and with the ’282 patent, “Asserted Patents”). There are a number
`
`of provisions in the Common Interest Agreement that Gel Blaster contends that Hasbro breached.
`
`In its Motion, Gel Blaster provides a factual chronology of pre-Investigation interactions
`
`with Gel Blaster and Gel Blaster employees that Gel Blaster argues lays the predicate for Gel
`
`Blaster’s Motion and a decision in its favor. (Mem. at 2-9.). Because of Hasbro’s alleged
`
`misconduct and breaches of the Common Interest Agreement, Gel Blaster contends that the
`
`identified patents are unenforceable. (Id. at 17.).
`
`Gel Blaster contends that if a finding were made that Hasbro breached its obligations
`
`under the Common Interest Agreement, such a decision would be dispositive between Gel
`
`Blaster and Hasbro and would eliminate that issue. As a result, according to Gel Blaster, Hasbro
`
`would be unable to enforce the Asserted Patents against Gel Blaster. (Id. at 19.). It appears that
`
`Gel Blaster asserts that its defenses also would individually be dispositive if a finding were made
`
`on either waiver or unclean hands. To that end Gel Blaster argues that by allowing its Motion,
`
`the evidentiary hearing would be more focused on infringement and invalidity that affect all of
`
`the Respondents. (Id. at 19.).
`
`2 Gel Blaster certifies that two (2) days before it filed its Motion, Gel Blaster attempted to resolve its
`Motion. (Mot. at 1.). Gel Blaster reports that Commission Investigative Staff (“Staff”) would take a
`position when all papers have been filed. (Id.). Gel Blaster also reports that Complainants Hasbro and
`Spin Master opposed the Motion while Respondents Prime Time Toys, LLC and Splat-R-Ball, LLC took
`no position. (Id.).
`
`Page 2 of 5
`
`PUBLIC VERSION
`
`

`

`To that end, and in its request for entry into the early ID pilot program, Gel Blaster has
`
`proposed that: (1) discovery be completed on the issues of interest within 30 days of the date of
`
`an Order granting Gel Blaster’s Motion; (2) “as soon as practicable” following discovery, that a
`
`hearing be held; and (3) Gel Blaster and Hasbro and Spin Master each be allowed at most (2)
`
`depositions; (4) within 10 days of the date of a hearing, that simultaneous, pos-hearing briefs be
`
`filed. (Id. at 20.).
`
`On November 14, 2022, Hasbro filed its response (“Hasbro Response”) to Gel Blaster’s
`
`Motion. (Doc. ID No. 784442 (Nov. 14, 2022); Hasbro Resp. at 1.). Among other arguments,
`
`Hasbro notes that the timing of Gel Blaster’s Motion is a problem because entry into the Pilot
`
`Program would not save time or resources for any party concerned. As part of the timing and
`
`resource problem that Hasbro identifies, Hasbro notes that Hasbro filed its Complaint on or
`
`about July 17-23, 2022 yet Gel Blaster waited some 83 days after the Complaint was filed to file
`
`its Motion. (Id. at 2.). In that same vein, Hasbro notes that fact discovery is scheduled to be
`
`completed by December 14, 2022. (Id. at 3.). Hasbro argues that with the deadline for fact
`
`discovery, the grant of Gel Blaster’s Motion would create a dual discovery track that would not
`
`save time but rather would add a complicated litigation schedule for the Parties and thereby
`
`defeat the purposes of the Pilot Program. (Id. at 8, 9.). Other problems with timing include that
`
`the Pilot Program discovery would occur in the middle of summary determination filings and
`
`expert discovery. To that end, Hasbro notes that a number of administrative law judge opinions
`
`only allowed entry into the Pilot Program when the request has been made within days of filing.
`
`(Id. at 10 (citing Certain Replacement Automotive Lamps, Inv. No. 337-TA-1291, 2022 WL
`
`2952192, at *3 (July 1, 2022) (ALJ Cheney); Certain Electrolyte Containing Beverages, Inv. No.
`
`337-TA-1269, 86 Fed. Reg. 35532, 35532–33 (July 6, 2021) (other citation omitted)).).
`
`Page 3 of 5
`
`PUBLIC VERSION
`
`

`

`Substantively, Hasbro relayed different terms of the Common Interest Agreement and
`
`other arrangements which the Private Parties terminated. (Hasbro Resp. at 2-8.). Additionally,
`
`Hasbro argues that the issues Gel Blaster seeks to have adjudicated in the Pilot Program are
`
`germane only to Gel Blaster and Hasbro and would not be dispositive with respect to any of the
`
`other Respondents. (Id. at 13.). Ultimately, Hasbro argues that allowing Gel Blaster’s entry into
`
`the Pilot Program would not save time or resources and it would be unfair to Hasbro because of
`
`the double track scheduling. According to Hasbro, it is not clear that the Commission’s remedy
`
`is a correct one. (Id. at 12-18.)
`
`On November 14, 2022, Staff filed his response (“Staff Response”) to Gel Blaster’s
`
`Motion. (Doc. ID No. 784425 (Nov. 14, 2022); Staff. Resp. at 1.). Staff notes that when the
`
`Pilot Program was instituted, the Commission indicated that it “expected that interim ID issues
`
`will be case-dispositive, or will resolve significant issues in advance of the main evidentiary
`
`hearing, and could facilitate settlement or otherwise resolve the entire dispute between the
`
`parties.” (See Staff Resp. at 2.). Staff also notes that the ALJs have discretion to “to put issues
`
`within the program as they deem appropriate.” (Id.). Staff argues that while Gel Blaster argues
`
`the resolving the identified issues would eliminate Gel Blaster from this Investigation, that is not
`
`necessarily so because the “record is mixed” as to whether Gel Blaster would prevail. (Id.).
`
`Therefore, according to Staff, allowing Gel Blaster’s Motion would not necessarily preserve
`
`resources or save time. (Id.). Ultimately, Staff opposes Gel Blaster’s Motion because even
`
`resolving Gel Blaster’s defenses would not be case dispositive, or even necessarily eliminate Gel
`
`Blaster from the Investigation, and would not necessarily preserve judicial resources. (Id. at 4.).
`
`II.
`
`DISCUSSION
`
`On balance, Hasbro’s and Staff’s arguments appear to be correct that it is not clear, based
`
`Page 4 of 5
`
`PUBLIC VERSION
`
`

`

`on the evidence, that Gel Blaster’s entry into the Pilot Program would conserve either Party
`
`resources or judicial resources. More likely, the time that it would take for additional briefing
`
`and two-track schedule could theoretically add time, and at best, might be equivalent to the time
`
`that otherwise might be spent on additional or remaining discovery and briefing. Additionally, it
`
`is not at all clear, based upon the additional information/evidence that Hasbro submitted, that a
`
`disposition on the Common Interest Agreement would necessarily resolve in Gel Blaster’s favor.
`
`On balance, it is not clear that Gel Blaster’s entry into the Pilot Program would fulfill the
`
`Commission’s purpose for instituting the Pilot Program, as described above.
`
`For the foregoing reasons, Respondent Gel Blaster’s Motion, Motion Docket No. 1325-
`
`006, is denied.
`
`Within fourteen (14) business days of the date of this document, each party shall submit
`
`to the Office of the Administrative Law Judges through McNamara337@usitc.gov a statement
`
`whether it seeks to have any confidential portion of this document. That is the courtesy copy
`
`pursuant to Ground Rule 1.3.2. Any party seeking redactions to the public version must submit
`
`to this office through McNamara337@usitc.gov a copy of a proposed public version of this
`
`document pursuant to Ground Rule 1.10 with yellow highlighting clearly indicating any portion
`
`asserted to contain confidential business information.
`
`SO ORDERED.
`
`Page 5 of 5
`
`PUBLIC VERSION
`
`