[Federal Register Volume 85, Number 75 (Friday, April 17, 2020)]
[Notices]
[Pages 21457-21459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08103]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1124]
Certain Powered Cover Plates; Commission Determination Not to
Review a Remand Initial 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 has determined not to review a remand initial determination
(``RID'') issued by the presiding administrative law judge (``ALJ'') in
the above-captioned investigation granting a motion for summary
determination regarding whether certain redesigns infringe the asserted
patents. The Commission requests briefing from the parties, interested
government agencies, and interested persons on the issues of remedy,
the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3115. 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
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information concerning the Commission may also be obtained by accessing
its internet server at https://www.usitc.gov. The public record for
this investigation may be viewed on the Commission's electronic docket
(EDIS) at https://edis.usitc.gov. Hearing-impaired persons are advised
that information on this matter can be obtained by contacting the
Commission's TDD terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted the investigation
on July 23, 2018, based on a complaint filed by SnapRays, LLC d/b/a
SnapPower of Vineyard, UT (``SnapPower,'' or Complainant). 83 FR 34871
(July 23, 2018). The complaint, as supplemented, alleges a violation of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337''), based upon the importation into the United States,
the sale for importation, and the sale within the United States after
importation of certain powered cover plates by reason of infringement
of certain claims of U.S. Patent Nos. 9,871,324 (``the '324 patent'');
9,882,361 (``the '361 patent''); 9,917,430 (``the '430 patent''); and
U.S. Design Patent No. D819,426 (``the Design Patent,'' or ``the 'D426
patent'') (collectively, ``the Asserted Patents''). Id. at 34872. The
notice of investigation named thirteen respondents: (1) Ontel Products
Corporation of Fairfield, New Jersey; (2) Dazone, LLC of Ontario,
Canada; (3) Shenzhen C-Myway of Shenzhen, Guangdong, China; (4) E-
Zshop4u LLC of Howey in the Hills, Florida; (5) Desteny Store of Fort
Meyers, Florida; (6) Zhongshan Led-Up Light Co., Ltd. of Zhongshan,
Guangdong, China; (7) AllTrade Tools LLC of Cypress, California; (8)
Guangzhou Sailu Info Tech. Co., Ltd. of Guangzhou, Gunagdong, China;
(9) Zhejiang New-Epoch Communication Industry Co., Ltd. of Yueging,
Zhejiang, China; (10) KCC Industries of Eastvale, California; (11)
Vistek Technology Co., Ltd. of Fuyong, Baoan, Shenzhen, China
(``Vistek''); (12) Enstant Technology Co., Ltd. of Xixiang Baoan
District, Shenzhen, China (``Enstant''); and (13) Manufacturers
Components Incorporated of Pompano Beach, Florida. Id. The Commission's
Office of Unfair Import Investigations (``OUII'') was also named as a
party.
The Commission previously terminated the investigation as to, or
found in default, all named respondents except Enstant and Vistek.
Order No. 5 (Sept. 26, 2018), non-reviewed Notice (Oct. 29, 2018);
Order No. 6 (Sept. 26, 2018), non-reviewed Notice (Oct. 29, 2018);
Order No. 8 (Sept. 28, 2018), non-reviewed Notice (Oct. 23, 2018);
Order No. 12 (Oct. 2, 2018), non-reviewed Notice (Nov. 27, 2018); Order
No. 18 (Nov. 28, 2018), non-reviewed Notice (Dec. 21, 2018); Order, No.
36 (Apr. 11, 2019), non-reviewed Notice (May 8, 2019).
On August 12, 2019, the ALJ issued her ``Initial Determination on
Violation of Section 337 and Recommended Determination on Remedy and
Bond,'' finding a violation of section 337. The final ID found that a
violation of section 337 occurred in the importation into the United
States, the sale for importation, or the sale within the United States
after importation, of certain powered cover plates that infringe the
asserted claims of the '361 patent by Enstant and Vistek (collectively,
``Enstant/Vistek,'' or ``Enstant''). See id. at 125-26.
The final ID noted that ``Respondents Enstant and Vistek filed a
motion for summary determination of non-infringement (`Redesign SD
Motion') of [the '361 patent] by Redesign Models P001 (Smart Wall Plate
Charger, Decor Outlet, with USB charger) and P002 (Smart Wall Plate
Charger, Duplex Outlet with USB charger).'' Final ID at 14. In the
Redesign SD Motion, Enstant sought summary determination that powered
cover plate model numbers P001 and P002 (``Enstant's Redesigns'') do
not infringe claims 1, 3-4, 10, 14, 17, 21, and 23-24 of the '361
patent. Redesign SD Motion at 16. The final ID found, however, that
``Enstant's and Vistek's Redesign SD Motion was effectively rendered
moot by rulings on Motions in Limine . . . .'' Id.
On October 11, 2019, the Commission determined to review in part
and to remand the investigation to the ALJ for a remand initial
determination (``RID'') to address the final ID's finding that Enstant/
Vistek's Redesign SD Motion is moot. 84 FR 55985-86 (October 18, 2019).
The Commission issued an ``Order: Remand of a Final Initial
Determination In Part'' directing the ALJ to expeditiously issue an RID
as to this finding and to ``extend the target date for termination of
the investigation by ID pursuant to 19 CFR 210.51(a)(1) to three months
after the issuance of the RID.'' Commission Order at 5 (October 11,
2019).
On January 30, 2020, the ALJ issued the subject RID granting
Enstant's Redesign SD Motion. The ALJ found that Enstant's Redesigns
are properly at issue in this investigation because (1) Enstant's
Redesigns are within the scope of this investigation and within the
Commission's jurisdiction, RID at 10-12; (2) Enstant's Redesigns are
fixed in design and not ``hypothetical,'' RID at 12-13; and (3) the
parties exchanged discovery regarding the Redesigns, RID at 13-15. The
ALJ also found that there is no dispute that Enstant's Redesigns do not
infringe claims 1, 3-4, 10, 14, 17, 21, and 23-24 of the '361 patent--
the only patent asserted against Enstant's Redesigns. RID at 15-20. No
party petitioned for review of the RID.
The Commission has determined not to review the subject RID.
In connection with the final disposition of this investigation, the
statute authorizes issuance of: (1) An exclusion order that could
result in the exclusion of the subject articles from entry into the
United States, and/or (2) one or more cease and desist orders that
could result in the respondents 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 are
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 (Dec. 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,
please 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
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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.
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest 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,
disapprove, or take no action on 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 initial written submissions should include views on
the recommended determination on remedy and bonding issued on August
12, 2019, by the ALJ.
In its initial written submission, Complainant is also requested to
identify the form of the remedy sought and to submit proposed remedial
orders for the Commission's consideration. Complainant is also
requested to state the expiration date of the '324, '361, '430, and
'D426 patents, the HTSUS subheadings under which the accused articles
are imported, and to supply identification information for all known
importers of the accused products. Initial written submissions,
including proposed remedial orders must be filed no later than the
close of business on March 30, 2020. Reply submissions must be filed no
later than the close of business on April 6, 2020. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission.
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 section 210.4(f) of the Commission's Rules of Practice and
Procedure (19 CFR 210.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1124'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.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. 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 non-confidential 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: March 11, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-08103 Filed 4-16-20; 8:45 am]
BILLING CODE 7020-02-P