[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Notices]
[Pages 10723-10726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03675]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1118]
Certain Movable Barrier Operator Systems and Components Thereof;
Commission Determination To Review a Final Initial Determination in
Part Finding No Violation of Section 337 and Order No. 38 Granting
Summary Determination That the Economic Prong Has Been Satisfied;
Request for Written Submissions on the Issues Under Review and on
Remedy, 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 (the ``Commission'') has determined to review in part the
final Initial Determination (``ID'') issued in this case as well as
Order No. 38 granting summary determination that the economic prong of
the domestic industry requirement has been satisfied. The Commission
requests briefing from the parties on the issues under review. The
Commission also requests written submissions from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2382. 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 June 11, 2018, the Commission instituted
the present investigation based on a complaint and supplement thereto
filed by The Chamberlain Group, Inc. (``Chamberlain'') of Oak Brook,
Illinois. 83 FR 27020-21 (June 11, 2018). The complaint, as
supplemented, alleges a violation of 19 U.S.C. 1337, as amended
(``Section 337''), in the importation, sale for importation, or sale in
the United States after importation of certain movable barrier operator
systems that purportedly infringe one or more of the asserted claims of
Chamberlain's U.S. Patent Nos. 8,587,404 (``the '404 patent'');
7,755,223 (``the '223 patent''); and 6,741,052 (``the '052 patent'').
Id. The Commission has partially terminated the investigation with
respect to certain patent claims withdrawn by Chamberlain. See Order
No. 16 (Feb. 5, 2019), not rev'd, Comm'n Notice (March 6, 2019); Order
No. 27 (June 7, 2019), not rev'd, Comm'n Notice (June 27, 2019); Order
No. 31 (July 30, 2019), not rev'd, Comm'n Notice (Aug. 19, 2019); Order
No. 32 (Sept. 27, 2019), not rev'd, Comm'n Notice (Oct. 17, 2019). The
only asserted claims still at issue are claim 11 of the '404 patent,
claims 1 and 21 of the '223 patent, and claim 1 of the '052 patent.
The Commission's notice of investigation named Nortek Security &
Control, LLC of Carlsbad, CA; Nortek, Inc. of Providence, RI; and GTO
Access Systems, LLC of Tallahassee, FL (collectively, ``Nortek'') as
respondents. 83 FR at 270721. The Office of Unfair Import
Investigations was not named as a party to this investigation. See id.
The parties filed their Markman briefs on November 13, 2018, and a
revised claim construction chart on February 8, 2019. On June 5, 2019,
the presiding administrative law judge (``ALJ'') issued a Markman order
(Order No. 25) construing the claim terms in dispute.
On December 12, 2018, Chamberlain filed a motion for summary
determination, pursuant to 19 CFR 210.18(a), that it has satisfied the
economic prong of the domestic industry requirement. Nortek filed a
response opposing the motion on February 11, 2019. The ALJ held a
teleconference with the parties on May 31, 2019. On June 6, 2019, the
ALJ issued a notice advising the parties that the motion would be
granted and a formal written order would be issued later. Order No. 26
(June 6, 2019).
The ALJ held a prehearing conference and evidentiary hearing on the
issues in dispute on June 10-14, 2019. The parties filed their initial
post-hearing briefs on July 11, 2019, and their reply briefs on August
16, 2019. On October
[[Page 10724]]
11, 2019, the ALJ issued Order No. 35, which extended the target date
for completion of this investigation by 27 business days to March 25,
2020, and the due date for issuance of the final ID to November 25,
2019. Order No. 35 (Oct. 1, 2019), not rev'd, Comm'n Notice (Nov. 5,
2019).
On November 25, 2019, the ALJ issued two IDs. The first (Order No.
38) grants a motion for summary determination that the economic prong
of the domestic industry requirement has been satisfied, pursuant to 19
CFR 210.42(c). The second is the final Initial Determination on
Violation of Section 337 and Recommended Determination on Remedy and
Bond. The final ID finds no violation of Section 337 because the
asserted claims of the Chamberlain patents are either invalid or not
infringed, and, in the case of the '223 patent, the technical prong of
the domestic industry requirement has not been met. ID at 1, 286-87.
Should the Commission reverse these findings and determine there is a
violation of Section 337, the RD recommends issuing a limited exclusion
order and cease and desist orders and imposing a bond in the amount of
100 percent during the period of Presidential review. RD at 277-86.
On December 4, 2019, Nortek filed a petition for review and
Chamberlain filed a contingent petition for review of Order No. 38
granting summary determination that the economic prong has been
satisfied. On December 9, 2019, Chamberlain filed a petition for review
of the final ID, while Nortek filed a contingent petition for review of
the final ID. On December 16, 2019, the Commission issued a notice of
its determination to extend the deadline for determining whether to
review Order No. 38 to January 24, 2019, to coincide with the deadline
for determining whether to review the final ID. Comm'n Notice (Dec. 16,
2019).
On December 18, 2019, the Commission issued a notice soliciting
comments on the public interest from the public. 84 FR 70998-99 (Dec.
26, 2019). No responses were received. Similarly, no party filed a
submission, pursuant to 19 CFR 210.50(a)(4).
On January 23, 2020, the Commission extended the deadline for
determining whether to review the final ID and Order No. 38 to February
14, 2020. Comm'n Notice (Jan. 23, 2020). The Commission also extended
the target date to April 20, 2020. Id. On February 14, 2020, the
Commission extended the deadline for determining whether to review the
final ID and Order No. 38 to February 19, 2020. Comm'n Notice (Feb. 14,
2020). The Commission left the April 20, 2020, target date unchanged.
Id.
Having reviewed the record in this investigation, including the
final ID, Order No. 38, Order No. 25 (Markman order), and the parties'
petitions and responses thereto, the Commission has determined to
review Order No. 38 and the final ID in part, as follows.
With regard to the '404 patent, the Commission has determined to
review the ID's claim constructions and application of those
constructions, infringement and technical prong findings, and patent-
eligibility findings.
With regard to the '223 patent, the Commission has determined to
review the ID's finding of no infringement, particularly with respect
to the application of the term ``operates'' in this context. The
Commission has similarly determined to review the ID's finding that the
asserted domestic industry products do not practice the '223 patent
claims.
With regard to the '052 patent, the Commission has determined to
review the ID's findings with respect to direct infringement, indirect
infringement, technical prong, and obviousness.
The Commission has further determined to review Order No. 38
granting summary determination that the economic prong has been
satisfied in this investigation.
The Commission has determined not to review the remaining findings
in the ID.
The parties are asked to provide additional briefing on the
following issues regarding the '223 and '052 patents. For each argument
presented, the parties' submissions should include whether and how that
argument was presented and preserved in the proceedings before the ALJ,
in conformity with the ALJ's Ground Rules (Order No. 2), with citations
to the record:
A. With regard to the '404 patent, please discuss whether the ID
correctly found that claim 11 is not directed to an abstract idea and
that it lacks an inventive concept. Does the claimed system use off-
the-shelf technology or a specific implementation of a communication
scheme? Please also discuss SIPCO, LLC v. Emerson Elec. Co., 939 F.3d
1301, 1312 (Fed. Cir. 2019) and Certain Road Construction Machines and
Components Thereof, Inv. No. 337-TA-1088, Comm'n Op. (June 27, 2019).
B. With regard to claims 1 and 21 of the '223 patent, please
explain how a person skilled in the art would apply the plain and
ordinary meaning of the term ``operates'' in the context of this patent
and products at issue, and whether in this context ``the obstacle
detector operates using a second energy usage . . .'' if the detector
can be awoken to perform a function in the higher energy ``first mode
of energy usage.''
C. With regard to indirect infringement, please explain whether
there is a preponderance of the evidence that Nortek induces indirect
infringement of the '052 patent, with particular attention to evidence
showing the relevant products or components that Nortek imports into
the United States (e.g., gate operators, garage door operators, or
controllers); whether or to what extent those imported products or
components are assembled into final accused products; where final
assembly of the accused products occurs (inside or outside the United
States); which party or parties (e.g., Nortek, its customers, etc.)
perform such final assembly; and any other matters the parties deem
relevant to review of indirect infringement.
D. With regard to the '052 patent, please explain whether the
evidence supports finding a motivation to use a potentiometer or other
means to manually adjust force thresholds that were previously
automatically determined, or whether the prior art teaches away from
such a combination, paying particular attention to the Hormann
reference (U.S. Patent No. 4,625,291), the Schindler reference (U.S.
Patent No. 4,638,433), technology and background of potentiometers, and
any other relevant evidence that was timely raised in this
investigation.
E. With regard to Order No. 38, explain whether there is a
preponderance of evidence that Chamberlain has satisfied the economic
prong requirement for the '404 patent, '223 patent or '052 patent--each
patent standing alone--as a matter of law. In answering this question
be sure to address the contextual analysis required by Commission
precedent. See, e.g., Certain Carburetors and Products Containing Such
Carburetors, Inv. No. 337-TA-1123, Comm'n Op. at 17-19 (Oct. 28, 2019).
The parties are requested to brief only the discrete issues
identified above, with reference to the applicable law and evidentiary
record. The parties are not to brief any other issues on review, which
have already been adequately presented in the parties' previous
filings.
In connection with the final disposition of this investigation, the
Commission may issue: (1) An exclusion order that could result in the
exclusion of the subject articles from entry into the United States,
and/or (2)
[[Page 10725]]
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, 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
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 any
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 order 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 determination. 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: The parties to this investigation are
requested to file written submissions on the issues identified in this
Notice. In addition, 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 submissions should include views on the
recommended determination by the ALJ on the issues of remedy and
bonding. Complainant is requested to identify the form of remedy sought
and to submit proposed remedial orders for the Commission's
consideration in its initial written submission. 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
Respondents' products at issue in this investigation. Complainant is
additionally requested to identify and explain, from the record,
articles that are ``components of'' the subject products, and thus
covered by the proposed remedial orders, if imported separately from
the subject products.
The parties' written submissions and proposed remedial orders must
be filed no later than the close of business on March 4, 2020. Reply
submissions must be filed no later than the close of business on March
11, 2020. Opening submissions are limited to 40 pages. Reply
submissions are limited to 30 pages. Third-party submissions should be
filed no later than the close of business on March 4, 2020, and may not
exceed 10 pages, not including any attachments. No further submissions
on any of 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 deadline stated above and submit eight
(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-1118'') in a prominent place on
the cover page and/or 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).
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By order of the Commission.
Issued: February 19, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-03675 Filed 2-24-20; 8:45 am]
BILLING CODE 7020-02-P