In the Matter of Certain Foam Footwear; Notice of Commission Decision Not To Review a Remand Initial Determination; Finding of a Violation of Section 337; Request for Written Submissions Regarding Remedy, Bonding, and the Public Interest, 24052-24053 [2011-10363]
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Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Notices
5, 6, and 9–14 of the ‘911 patent; claims
1, 21, 25–27, 51, and 52 of the ‘529
patent; claims 3, 4, 21, 26, 28, 38, 43,
44, 61, 67, 68, 77, and 78 of the ‘664
patent; claims 1, 3, 5, 9, 11–14, 16, 18,
19, 21–23, and 25 of the ‘696 patent;
claims 1–3, 5, 9, and 15 of the ‘932
patent; claims 1, 2, 5, and 6 of the ‘740
patent; and claims 1–6, 8–15, and 21 of
the ‘874 patent, and whether an
industry in the United States exists or
is in the process of being established as
required by subsection (a)(2) of section
337;
(2) For the purpose of the
investigation so instituted, the following
are hereby named as parties upon which
this notice of investigation shall be
served:
(a) The complainants are:
Nokia Corporation, Keilalahdentie 4,
(P.O. Box 226), FIN–00045 Nokia
Group, Espoo, Finland.
Nokia Inc., 102 Corporate Park Drive,
White Plains, NY 10604. Intellisync
Corporation, 102 Corporate Park
Drive, White Plains, NY 10604.
(b) The respondent is the following
entity alleged to be in violation of
section 337, and is the party upon
which the complaint is to be served:
Apple Inc., 1 Infinite Loop, Cupertino,
CA 95014.
(c) The Office of Unfair Import
Investigations, U.S. International Trade
Commission, 500 E Street, SW., Suite
401, Washington, DC 20436; and
(3) For the investigation so instituted,
the Honorable Paul J. Luckern, Chief
Administrative Law Judge, U.S.
International Trade Commission, shall
designate the presiding Administrative
Law Judge.
Responses to the complaint and the
notice of investigation must be
submitted by the named respondent in
accordance with section 210.13 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.13. Pursuant to
19 CFR 201.16(d)–(e) and 210.13(a),
such responses will be considered by
the Commission if received not later
than 20 days after the date of service by
the Commission of the complaint and
the notice of investigation. Extensions of
time for submitting responses to the
complaint and the notice of
investigation will not be granted unless
good cause therefor is shown.
Failure of the respondent to file a
timely response to each allegation in the
complaint and in this notice may be
deemed to constitute a waiver of the
right to appear and contest the
allegations of the complaint and this
notice, and to authorize the
administrative law judge and the
Commission, without further notice to
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17:39 Apr 28, 2011
Jkt 223001
the respondent, to find the facts to be as
alleged in the complaint and this notice
and to enter an initial determination
and a final determination containing
such findings, and may result in the
issuance of an exclusion order or a cease
and desist order or both directed against
the respondent.
Issued: April 25, 2011.
By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2011–10348 Filed 4–28–11; 8:45 am]
BILLING CODE P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–567]
In the Matter of Certain Foam
Footwear; Notice of Commission
Decision Not To Review a Remand
Initial Determination; Finding of a
Violation of Section 337; Request for
Written Submissions Regarding
Remedy, Bonding, and the Public
Interest
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined not to
review the presiding administrative law
judge’s (‘‘ALJ’’) remand initial
determination (‘‘ID’’) and has found a
violation of section 337 in the abovecaptioned investigation. The
Commission is requesting written
submissions regarding remedy, bonding,
and the public interest.
FOR FURTHER INFORMATION CONTACT:
Clint Gerdine, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202)
708–5468. 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 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
SUMMARY:
PO 00000
Frm 00084
Fmt 4703
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contacting the Commission’s TDD
terminal on (202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on May 11, 2006, based on a complaint,
as amended, filed by Crocs, Inc.
(‘‘Crocs’’) of Niwot, Colorado. 71 FR
27514–15 (May 11, 2006). The
complaint alleged violations of section
337 of the Tariff Act of 1930, as
amended (19 U.S.C. CC1337), in the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain foam footwear, by reason of
infringement of claims 1–2 of U.S.
Patent No. 6,993,858; U.S. Patent No.
D517,789; and the Crocs trade dress (the
image and overall appearance of Crocsbrand footwear). The complaint further
alleged that an industry in the United
States exists as required by subsection
(a)(2) of section 337, and requested that
the Commission issue a permanent
general exclusion order and permanent
cease and desist orders. The complaint
named eleven (11) respondents that
included: (1) Collective Licensing
International, LLC of Englewood,
Colorado; (2) Double Diamond
Distribution Ltd. (‘‘Double Diamond’’) of
Canada; (3) Effervescent Inc.
(‘‘Effervescent’’) of Fitchburg,
Massachusetts; (4) Gen-X Sports, Inc. of
Toronto, Ontario; (5) Holey Shoes
Holding Ltd. of Canada; (6) Australia
Unlimited, Inc. of Seattle, Washington;
(7) Cheng’s Enterprises Inc. of Carlstadt,
New Jersey; (8) D. Myers & Sons, Inc. of
Baltimore, Maryland; (9) Inter-Pacific
Trading Corp. of Los Angeles,
California; (10) Pali Hawaii of Honolulu,
Hawaii; and (11) Shaka Shoes of KaliuaKona, Hawaii. The Commission
terminated the investigation as to the
trade dress allegation on September 11,
2006. A twelfth respondent, Old
Dominion Footwear, Inc. of Madison
Heights, Virginia, was added to the
investigation on October 10, 2006. All
but two respondents have been
terminated from the investigation on the
basis of a consent order, settlement
agreement, or undisputed Commission
determination of non-infringement. The
two remaining respondents are Double
Diamond and Effervescent.
On April 11, 2008, the ALJ issued his
final ID finding no violation of section
337. The ALJ’s final ID made no finding
on whether either asserted patent was
unenforceable due to inequitable
conduct. The ALJ’s final ID also
included his recommendation on
remedy and bonding should the
Commission find that there was a
violation. On July 25, 2008, after review,
the Commission affirmed the ALJ’s final
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srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Notices
ID with certain modifications and
clarifications, and terminated the
investigation with a finding of no
violation of section 337. The
Commission took no position regarding
the issue of enforceability of the ’858
and ’789 patents. On February 24, 2010,
the U.S. Court of Appeals for the
Federal Circuit (‘‘Federal Circuit’’)
issued its judgment overturning the
Commission’s findings regarding
invalidity of the ’858 patent, and noninfringement/lack of domestic industry
concerning the ’789 patent. The Federal
Circuit also specifically ‘‘remand[ed] the
investigation for a determination of
infringement of the ’858 patent and any
appropriate remedies.’’ See Crocs, Inc. v.
United States Int’l Trade Comm’n, 598
F.3d 1294, 1311 (Fed. Cir. 2010). On
July 6, 2010, the Commission remanded
the investigation to the ALJ to decide
the remaining issue of enforceability of
the patents.
On February 9, 2011, the ALJ issued
his remand ID finding that the patents
were not unenforceable. On February
25, 2011, respondents filed both a joint
petition for review of the remand ID and
a motion for leave to file the petition
two (2) days late. On March 4, 2011, the
Commission issued an order declining
to grant respondents’ motion without
prejudice to respondents refiling their
motion stating good cause for the
enlargement of time. On March 16,
2011, respondents filed a joint motion
for an enlargement of the time for filing
petitions for review of the remand ID.
On March 18, 2011, the Commission
issued an order granting respondents’
motion for an enlargement of time and
making responses due on March 28,
2011. On March 28, 2011, Crocs and the
Commission investigative attorney each
filed a brief in response to respondents’
petition for review.
The Commission has determined not
to review the subject remand ID. Also,
the Commission has determined to
reaffirm the ALJ’s previous ruling that
claims 1 and 2 of the ’858 patent are
infringed by Effervescent’s accused
products, and that claim 2 of the ’858
patent is infringed by Double Diamond’s
accused products. See 73 FR 35710–11
(June 24, 2008); Remand ID at 2
(February 9, 2011) (citing Final ID at 121
(April 11, 2008)); Comm’n Op. at 3–4,
n. 1 (July 25, 2008). These actions, along
with the Federal Circuit’s decision,
result in a finding of a violation of
section 337 by Double Diamond and
Effervescent.
In connection with the final
disposition of this investigation, the
Commission may issue an order that
results in the exclusion of the subject
articles from entry into the United
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17:39 Apr 28, 2011
Jkt 223001
States. 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 In the Matter of Certain
Devices for Connecting Computers via
Telephone Lines, Inv. No. 337–TA–360,
USITC Pub. No. 2843 (December 1994)
(Commission Opinion).
When 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.
When 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 section 337(j), 19 U.S.C. 1337(j) and
the 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. 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, and
such submissions should address the
recommended determination by the ALJ
on remedy and bonding issued on April
23, 2008 (public version). The
complainant and the IA are also
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainant is also
requested to state the dates that the
patents at issue expire and the HTSUS
numbers under which the accused
articles are imported. The written
PO 00000
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Fmt 4703
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24053
submissions and proposed remedial
orders must be filed no later than close
of business on May 6, 2011. Reply
submissions must be filed no later than
the close of business on May 13, 2011.
No further submissions on these issues
will be permitted unless otherwise
ordered by the Commission.
Persons filing written submissions
must file the original document and 12
true copies thereof on or before the
deadlines stated above with the Office
of the Secretary. Any person desiring to
submit a document to the Commission
in confidence must request confidential
treatment unless the information has
already been granted such treatment
during the proceedings. All such
requests should be directed to the
Secretary of the Commission and must
include a full statement of the reasons
why the Commission should grant such
treatment. See 19 CFR 210.6. Documents
for which confidential treatment by the
Commission is sought will be treated
accordingly. All nonconfidential written
submissions will be available for public
inspection at the Office of the Secretary.
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
sections 210.42–46 of the Commission’s
Rules of Practice and Procedure, 19 CFR
210.42–46.
Issued: April 25, 2011.
By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2011–10363 Filed 4–28–11; 8:45 am]
BILLING CODE P
DEPARTMENT OF JUSTICE
[OMB Number 1121–NEW]
Agency Information Collection
Activities: Proposed Collection;
Comments Requested
30-Day Notice of Information
Collection Under Review; Proposed
New Information Collection Activity;
Comment Request, Proposed Project
entitled ‘‘Violence and Victimization
Experiences of Indian Women Living in
Tribal Communities.’’
ACTION:
The Department of Justice (DOJ),
Office of Justice Programs, National
Institute of Justice (NIJ), will be
submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
The proposed information collection is
published to obtain comments from the
E:\FR\FM\29APN1.SGM
29APN1
]]>Agencies
[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Notices]
[Pages 24052-24053]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10363]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-567]
In the Matter of Certain Foam Footwear; Notice of Commission
Decision Not To Review a Remand Initial Determination; Finding of a
Violation of Section 337; Request for Written Submissions Regarding
Remedy, Bonding, and the Public Interest
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined not to review the presiding administrative
law judge's (``ALJ'') remand initial determination (``ID'') and has
found a violation of section 337 in the above-captioned investigation.
The Commission is requesting written submissions regarding remedy,
bonding, and the public interest.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-5468. 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 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 this investigation
on May 11, 2006, based on a complaint, as amended, filed by Crocs, Inc.
(``Crocs'') of Niwot, Colorado. 71 FR 27514-15 (May 11, 2006). The
complaint alleged violations of section 337 of the Tariff Act of 1930,
as amended (19 U.S.C. CC1337), in the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain foam footwear, by reason of infringement
of claims 1-2 of U.S. Patent No. 6,993,858; U.S. Patent No. D517,789;
and the Crocs trade dress (the image and overall appearance of Crocs-
brand footwear). The complaint further alleged that an industry in the
United States exists as required by subsection (a)(2) of section 337,
and requested that the Commission issue a permanent general exclusion
order and permanent cease and desist orders. The complaint named eleven
(11) respondents that included: (1) Collective Licensing International,
LLC of Englewood, Colorado; (2) Double Diamond Distribution Ltd.
(``Double Diamond'') of Canada; (3) Effervescent Inc.
(``Effervescent'') of Fitchburg, Massachusetts; (4) Gen-X Sports, Inc.
of Toronto, Ontario; (5) Holey Shoes Holding Ltd. of Canada; (6)
Australia Unlimited, Inc. of Seattle, Washington; (7) Cheng's
Enterprises Inc. of Carlstadt, New Jersey; (8) D. Myers & Sons, Inc. of
Baltimore, Maryland; (9) Inter-Pacific Trading Corp. of Los Angeles,
California; (10) Pali Hawaii of Honolulu, Hawaii; and (11) Shaka Shoes
of Kaliua-Kona, Hawaii. The Commission terminated the investigation as
to the trade dress allegation on September 11, 2006. A twelfth
respondent, Old Dominion Footwear, Inc. of Madison Heights, Virginia,
was added to the investigation on October 10, 2006. All but two
respondents have been terminated from the investigation on the basis of
a consent order, settlement agreement, or undisputed Commission
determination of non-infringement. The two remaining respondents are
Double Diamond and Effervescent.
On April 11, 2008, the ALJ issued his final ID finding no violation
of section 337. The ALJ's final ID made no finding on whether either
asserted patent was unenforceable due to inequitable conduct. The ALJ's
final ID also included his recommendation on remedy and bonding should
the Commission find that there was a violation. On July 25, 2008, after
review, the Commission affirmed the ALJ's final
[[Page 24053]]
ID with certain modifications and clarifications, and terminated the
investigation with a finding of no violation of section 337. The
Commission took no position regarding the issue of enforceability of
the '858 and '789 patents. On February 24, 2010, the U.S. Court of
Appeals for the Federal Circuit (``Federal Circuit'') issued its
judgment overturning the Commission's findings regarding invalidity of
the '858 patent, and non-infringement/lack of domestic industry
concerning the '789 patent. The Federal Circuit also specifically
``remand[ed] the investigation for a determination of infringement of
the '858 patent and any appropriate remedies.'' See Crocs, Inc. v.
United States Int'l Trade Comm'n, 598 F.3d 1294, 1311 (Fed. Cir. 2010).
On July 6, 2010, the Commission remanded the investigation to the ALJ
to decide the remaining issue of enforceability of the patents.
On February 9, 2011, the ALJ issued his remand ID finding that the
patents were not unenforceable. On February 25, 2011, respondents filed
both a joint petition for review of the remand ID and a motion for
leave to file the petition two (2) days late. On March 4, 2011, the
Commission issued an order declining to grant respondents' motion
without prejudice to respondents refiling their motion stating good
cause for the enlargement of time. On March 16, 2011, respondents filed
a joint motion for an enlargement of the time for filing petitions for
review of the remand ID. On March 18, 2011, the Commission issued an
order granting respondents' motion for an enlargement of time and
making responses due on March 28, 2011. On March 28, 2011, Crocs and
the Commission investigative attorney each filed a brief in response to
respondents' petition for review.
The Commission has determined not to review the subject remand ID.
Also, the Commission has determined to reaffirm the ALJ's previous
ruling that claims 1 and 2 of the '858 patent are infringed by
Effervescent's accused products, and that claim 2 of the '858 patent is
infringed by Double Diamond's accused products. See 73 FR 35710-11
(June 24, 2008); Remand ID at 2 (February 9, 2011) (citing Final ID at
121 (April 11, 2008)); Comm'n Op. at 3-4, n. 1 (July 25, 2008). These
actions, along with the Federal Circuit's decision, result in a finding
of a violation of section 337 by Double Diamond and Effervescent.
In connection with the final disposition of this investigation, the
Commission may issue an order that results in the exclusion of the
subject articles from entry into the United States. 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 In the Matter of Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843
(December 1994) (Commission Opinion).
When 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.
When 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 section 337(j), 19 U.S.C.
1337(j) and the 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. 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, and such submissions should address the recommended
determination by the ALJ on remedy and bonding issued on April 23, 2008
(public version). The complainant and the IA are also requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is also requested to state the dates that the patents at
issue expire and the HTSUS numbers under which the accused articles are
imported. The written submissions and proposed remedial orders must be
filed no later than close of business on May 6, 2011. Reply submissions
must be filed no later than the close of business on May 13, 2011. No
further submissions on these issues will be permitted unless otherwise
ordered by the Commission.
Persons filing written submissions must file the original document
and 12 true copies thereof on or before the deadlines stated above with
the Office of the Secretary. Any person desiring to submit a document
to the Commission in confidence must request confidential treatment
unless the information has already been granted such treatment during
the proceedings. All such requests should be directed to the Secretary
of the Commission and must include a full statement of the reasons why
the Commission should grant such treatment. See 19 CFR 210.6. Documents
for which confidential treatment by the Commission is sought will be
treated accordingly. All nonconfidential written submissions will be
available for public inspection at the Office of the Secretary.
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 sections 210.42-46 of the Commission's Rules of Practice and
Procedure, 19 CFR 210.42-46.
Issued: April 25, 2011.
By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2011-10363 Filed 4-28-11; 8:45 am]
BILLING CODE P
