[Federal Register Volume 84, Number 213 (Monday, November 4, 2019)]
[Notices]
[Pages 59416-59418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23988]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1125]
Certain Height-Adjustable Desk Platforms and Components Thereof;
Commission Determination Not To Review an Initial Determination
Granting in Part a Motion for Summary Determination; Schedule for
Filing Written Submissions on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined not to review the presiding
administrative law judge's (``ALJ'') initial determination (``ID'')
(Order No. 33) granting in part a summary determination on violation of
section 337 by certain non-participating respondents in the above-
captioned investigation. The Commission is requesting briefing from the
parties, interested government agencies, and interested persons on the
issues of remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW, Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its internet server (https://www.usitc.gov). The public record for this investigation may be viewed
on the Commission's Electronic Docket Information System (``EDIS'')
(https://edis.usitc.gov). Hearing-impaired persons are advised that
information on this matter can be obtained by contacting the
Commission's TDD terminal, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On July 30, 2018, the Commission instituted
this investigation based on a complaint and supplements thereto filed
on behalf of Varidesk LLC of Coppell, Texas (``Varidesk''). 83 FR 36621
(July 30, 2018). The complaint alleges violations of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain height-
adjustable desk platforms and components thereof by reason of
infringement of one or more claims of U.S. Patent Nos. 9,113,703 (``the
'703 patent''); 9,277,809 (``the '809 patent''); 9,554,644 (``the '644
patent''); and 9,924,793 (``the '793 patent''). Id. The complaint
further alleges that an industry in the United States exists as
required by section 337. Id.
The Commission's notice of investigation named thirty-one
respondents: (1) Albeit LLC of San Francisco, California (``Albeit'');
(2) ATC Supply LLC of Plainfield, Illinois (``ATC Supply''); (3)
Shenzhen Atc Network Scienology CO., LTD. of Guangdong, China
(``Shenzhen ATC''); (4) Best Choice Products of Ontario, California
(``Best Choice''); (5) Huizhou Chang He Home Supplies Co., Ltd. of
Guangdong, China (``Chang He''); (6) Dakota Trading, Inc. of Emerson,
New Jersey (``Dakota''); (7) Designa Inc. of Guangdong, China
(``Designa''); (8) Designa Group, Inc. of El Dorado Hills, California
(``Designa Group''); (9) Eureka LLC of El Dorado Hills, California
(``Eureka''); (10) LaMountain International Group LLC of Elk Grove,
California (``LaMountain''); (11) Amazon Import Inc. of El Monte,
California (``Amazon Imports''); (12) Hangzhou Grandix Electronics Co.,
Ltd. of Zhejiang, China (``Grandix''); (13) Ningbo GYL International
Trading Co., Ltd. of Zhejiang, China (``Ningbo GYL''); (14) Knape &
Vogt Manufacturing Co. of Grand Rapids, Michigan (``Knape & Vogt'');
(15) JV Products Inc. of Milpitas, California (``JV Products''); (16)
Vanson Distributing, Inc. of Milpitas, California (``Vanson
Distributing''); (17) Vanson Group, Inc. of Milpitas, California
(``Vanson Group''); (18) S.P. Richards Co. DBA Lorell of Smyrna,
Georgia (``Lorell''); (19) Nantong Jon Ergonomic Office Co., Ltd. of
Jiangsu, China (``Nanotong Jon''); (20) Jiangsu Omni Industrial Co.,
Ltd. of Jiangsu, China (``Jiangsu Omni''); (21) OmniMax USA, LLC of
Anna, Texas (``OmniMax USA''); (22) Haining Orizeal Import and Export
Co., Ltd. of Zhejiang, China (``Haining Orizeal''); (23) Qidong Vision
Mounts Manufacturing Co., Ltd. of Jiangsu, China (``Vision Mounts'');
(24) Hangzhou KeXiang Keji Youxiangongsi of Hangzhou, China (``Hangzhou
KeXiang''); (25) Smugdesk, LLC of La Puente, California (``Smugdesk'');
(26) Venditio Group, LLC of Elkton, Florida (``Venditio''); (27) Versa
Products Inc. of Los Angeles, California (``Versa''); (28) Victor
Technology, LLC of Bolingbrook, Illinois (``Victor''); (29) CKnapp
Sales, Inc. DBA Vivo of Goodfield, Illinois (``Vivo''); (30) Wuhu
Xingdian Industrial Co., Ltd. of Anhui, China (``Wuhu Xingdian''); and
(31) Wuppessen, Inc. of Ontario, California (``Wuppessen''). Id. The
Office of Unfair Import Investigations (``OUII'') was also named as a
party in this investigation. Id.
During the course of the investigation, Varidesk settled with the
following respondents: Venditio, Jiangsu Omni, OmniMax USA, Knape &
Vogt, Wuppessen, Victor, Versa, Designa, Designa Group, Eureka, Chang
He, Vision Mounts, Vivo, Nanotong Jon, Best Choice, Grandix, Hangzhou
KeXiang, Lorell, and Dakota. Order No. 7, unreviewed, Notice (Sept. 18,
2018); Order No. 11, unreviewed, Notice (Sept. 25, 2018); Order No. 12,
unreviewed, Notice (Oct. 4, 2018); Order No. 13,
[[Page 59417]]
unreviewed, Notice (Oct. 4, 2018); Order No. 16, unreviewed, Notice
(Nov. 9, 2018); Order No. 18, unreviewed, Notice (Nov. 29, 2018); Order
No. 20, unreviewed, Notice (Feb. 21, 2019); Order No. 23, unreviewed,
Notice (Mar. 12, 2019); Order No. 25, unreviewed, Notice (Apr. 5,
2019); Order No. 31, unreviewed, Notice (May 16, 2019). In addition,
the investigation terminated as to LaMountain based on a consent order
stipulation. Order No. 15, unreviewed, Notice (Oct. 22, 2018). The
investigation has also previously terminated as to certain claims of
each asserted patent. Order No. 30, unreviewed, Notice (May 13, 2019).
On April 11, 2019, Varidesk moved for summary determination of a
violation of section 337 as to the remaining eleven respondents, who
were served with a copy of the complaint, but have not filed a response
or participated in the investigation. On April 24, 2019, Varidesk filed
a supplement to the motion. The remaining respondents (collectively,
``the Non-Participating Respondents'') are (1) Albeit, (2) ATC Supply,
(3) Shenzhen ATC, (4) Amazon Imports, (5) Ningbo GYL, (6) JV Products,
(7) Vanson Distributing, (8) Vanson Group, (9) Haining Orizeal, (10)
Smugdesk, and (11) Wuhu Xingdian. On April 26, 2019, OUII filed a
response supporting Varidesk's motion in substantial part.
On September 13, 2019, the ALJ issued Order No. 33, the subject ID,
and his Recommended Determination (``RD'') on remedy and bonding. The
ID grants the motion in part. Specifically, the ALJ found, inter alia,
(1) that Varidesk established the importation requirement as to each
Non-Participating Respondent, except for Haining Orizeal; (2) that
Varidesk established infringement as to all accused products and all
remaining asserted claims (claims 1-2, 4, and 10-11 of the '703 patent;
claims 11, 16, 18, and 22-26 of the '809 patent; claims 1, 4-5, 11-12,
26, and 33-36 of the '644 patent; and claims 20-21 and 40-50 of the
'793 patent); and (3) that Varidesk satisfied the domestic industry
requirement for each asserted patents. In addition, the ALJ recommended
that the Commission issue a general exclusion order and impose a 100
percent bond during the period of Presidential review. The ALJ also
recommended the Commission not issue cease and desist orders directed
to the Non-Participating Respondents.
Having examined the record in this investigation, including the ID,
the Commission has determined not to review the ID. Thus, the
Commission has determined that there is a violation of section 337 as
to Albeit, ATC Supply, Shenzhen ATC, Amazon Imports, Ningbo GYL, JV
Products, Vanson Distributing, Vanson Group, Smugdesk, and Wuhu
Xingdian, but not as to Haining Orizeal.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue a cease and desist order that could result in the respondent
being required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. Accordingly, the Commission is
interested in receiving written submissions that address the form of
remedy, if any, that should be ordered. If a party seeks exclusion of
an article from entry into the United States for purposes other than
entry for consumption, the party should so indicate and provide
information establishing that activities involving other types of entry
either are adversely affecting it or likely to do so. For background,
see Certain Devices for Connecting Computers via Telephone Lines, Inv.
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December
1994). In addition, if a party seeks issuance of any cease and desist
orders, the written submissions should address that request in the
context of recent Commission opinions, including those in Certain
Arrowheads with Deploying Blades and Components Thereof and Packaging
Therefor, Inv. No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and Certain
Electric Skin Care Devices, Brushes and Chargers Therefor, and Kits
Containing the Same, Inv. No. 337-TA-959, Comm'n Op. (Feb. 13, 2017).
Specifically, if Complainant seeks a cease and desist order against a
respondent, the written submissions should respond to the following
requests:
1. Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainant also relies on other significant domestic operations that
could undercut the remedy provided by an exclusion order, identify with
citations to the record such information as to each respondent against
whom a cease and desist order is sought.
2. In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
3. Please discuss any other basis upon which the Commission could
enter a cease and desist order.
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove the Commission's action. See Presidential Memorandum of
July 21, 2005. 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission and prescribed by the
Secretary of the Treasury. The Commission is therefore interested in
receiving submissions concerning the amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should address the recommended
determination by the ALJ on remedy and bonding.
Complainant and OUII are requested to submit proposed remedial
orders for the Commission's consideration. Complainant is also
requested to state the date that the patents expire and the HTSUS
numbers under which the accused products are imported. Complainant is
further requested to supply the names of known importers of the
products at issue in this investigation. The written submissions and
proposed remedial orders must be filed no later than close of business
on November 13, 2019. Reply submissions must be filed no later than the
close of business on November 20, 2019. No further submissions on any
of these issues will be permitted unless otherwise ordered by the
Commission.
[[Page 59418]]
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to Commission Rule 210.4(f), CFR 210.4(f). Submissions should
refer to the investigation number (``Inv. No. 337-TA-1125'') in a
prominent place on the cover page and/or the first page. (See Handbook
for Electronic Filing Procedures, https://www.usitc.gov/secretary/documents/handbook_on_electronic_filing.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted-non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this Investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes
(all contract personnel will sign appropriate nondisclosure
agreements). All nonconfidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: October 29, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-23988 Filed 11-1-19; 8:45 am]
BILLING CODE 7020-02-P