Following its first public hearing in nearly a decade, an order from the United States International Trade Commission banned the import of Umicore’s nickel-manganese-cobalt (NMC) cathode materials. The order confirmed that lithium-ion batteries containing these materials infringe patents owned by BASF and Argonne National Laboratory and finds that Umicore induced its customers to infringe the patents.

The commission’s decision confirms an earlier decision from an administrative law judge that rejected Umicore’s arguments. Umicore’s scientific argument was that its NMC materials are single-phase, rather than two-phase as the patents require.

“This decisive finding highlights that Umicore has been competing unfairly in the market for NMC cathode materials,” said Kenneth Lane, President of BASF’s global catalysts division. “At BASF, we value innovation and we will continue to enforce and protect our intellectual property in this important area.”

Umicore has continued to sell its NMC products in the U.S. after the earlier decision. The full commission decided that Umicore’s efforts and sales of NMC materials to battery manufacturers induced infringement and confirmed that those who import batteries containing Umicore’s infringing NMC are committing infringement as well. In its exclusion order, the ITC is “prohibiting the unlicensed entry of [infringing] lithium metal oxide cathode materials…that are manufactured by, or on behalf of, or imported by or on behalf of Umicore.”

“Anyone importing products containing Umicore’s infringing NMC without a license is infringing,” said Matthew Lepore, General Counsel for BASF Corporation. “Umicore customers who continue importing infringing products without a license are exposing themselves to enhanced damages for willful patent infringement.”

The proceedings were unusual in that the ITC held a public hearing on the issues and also agreed to hear from third parties regarding the effect that potential remedies might have on the public interest. The ITC invited government agencies, public-interest groups, and members of the public to provide submissions and to make oral presentations regarding the remedy and the public interest.

The two-part hearing, held on November 17, 2016, included a session limited to the parties involved. The second part included non-party witnesses regarding the public interest, twelve of whom opposed imposition of the order eventually issued by the ITC and four witnesses which supported it.

The final determination was released in late December 2016.