Certain Foam Footwear; Final Commission Determination of Violation; Issuance of a General Exclusion Order and Cease and Desist Orders; and Termination of the Investigation, 43723-43724 [2011-18338]
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Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Notices
(i) Explain how the articles
potentially subject to the orders are used
in the United States;
(ii) Identify any public health, safety,
or welfare concerns in the United States
relating to the potential orders;
(iii) Indicate the extent to which like
or directly competitive articles are
produced in the United States or are
otherwise available in the United States,
with respect to the articles potentially
subject to the orders; and
(iv) Indicate whether Complainant,
Complainant’s licensees, and/or third
party suppliers have the capacity to
replace the volume of articles
potentially subject to an exclusion order
and a cease and desist order within a
commercially reasonable time.
Written submissions must be filed no
later than by close of business, five
business days after the date of
publication of this notice in the Federal
Register. There will be further
opportunities for comment on the
public interest after the issuance of any
final initial determination in this
investigation.
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. Submissions should
refer to the docket number (‘‘Docket No.
2831’’) in a prominent place on the
cover page and/or the first page. The
Commission’s rules authorize filing
submissions with the Secretary by
facsimile or electronic means only to the
extent permitted by section 201.8 of the
rules (see Handbook for Electronic
Filing Procedures, https://www.usitc.gov/
secretary/fed_reg_notices/rules/
documents/
handbook_on_electronic_filing.pdf).
Persons with questions regarding
electronic 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 nonconfidential
written submissions will be available for
public inspection at the Office of the
Secretary.
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and of sections 201.10 and 210.50(a)(4)
of the Commission’s Rules of Practice
VerDate Mar<15>2010
15:00 Jul 20, 2011
Jkt 223001
and Procedure (19 CFR 201.10,
210.50(a)(4)).
By order of the Commission.
Issued: July 18, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011–18436 Filed 7–20–11; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–567]
Certain Foam Footwear; Final
Commission Determination of
Violation; Issuance of a General
Exclusion Order and Cease and Desist
Orders; and Termination of the
Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has terminated the abovecaptioned investigation with a finding
of violation of section 337, and has
issued a general exclusion order
directed against infringing foam
footwear products, and cease and desist
orders directed against respondents
Double Diamond Distribution Ltd.
(‘‘Double Diamond’’) of Canada,
Effervescent Inc. (‘‘Effervescent’’) of
Fitchburg, Massachusetts, and Holey
Soles Holding Ltd. (‘‘Holey Soles’’) of
Canada.
SUMMARY:
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
PO 00000
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Sfmt 4703
43723
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. 1337), 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 (‘‘the ’858 patent’’);
U.S. Patent No. D517,789 (‘‘the ’789
patent’’); 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; (3)
Effervescent; (4) Gen-X Sports, Inc. of
Toronto, Ontario; (5) Holey Soles; (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 three
respondents have been terminated from
the investigation on the basis of a
consent order, settlement agreement, or
undisputed Commission determination
of non-infringement. The three
remaining respondents are Double
Diamond, Effervescent, and Holey Soles.
On April 11, 2008, the presiding
administrative law judge (‘‘ALJ’’) issued
his final initial determination (‘‘ID’’)
finding no violation of section 337. The
ALJ found non-infringement and nonsatisfaction of the technical prong of the
domestic industry requirement with
respect to the ’789 patent, and found
that the ’858 patent was proven invalid
as obvious under 35 U.S.C. 103. 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
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Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Notices
violation. On July 25, 2008, after review,
the Commission affirmed the ALJ’s final
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. See Crocs,
Inc. v. United States Int’l Trade
Comm’n, 598 F.3d 1294, 1311 (Fed. Cir.
2010). The Federal Circuit also
specifically ‘‘remand[ed] the
investigation for a determination of
infringement of the ’858 patent and any
appropriate remedies.’’ Id. 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 asserted
patents were not unenforceable. On
February 25, 2011, respondents
Effervescent and Double Diamond 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 the motion, but
without prejudice to respondents
refiling their motion stating good cause
for the enlargement of time. On March
16, 2011, respondents Effervescent and
Double Diamond 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 the motion for
an enlargement of time and making
responses due on March 28, 2011. On
March 28, 2011, Crocs and the
Commission investigative attorney
(‘‘IA’’) each filed a brief in response to
respondents’ petition for review.
On April 25, 2011, the Commission
issued notice of its determination not to
review the ALJ’s remand ID and
requested written submissions on the
issues of remedy, the public interest,
and bonding from the parties and
interested non-parties. See 76 FR
24052–53 (April 29, 2011). The
Commission’s notice also included its
determination 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,
VerDate Mar<15>2010
15:00 Jul 20, 2011
Jkt 223001
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, resulted in a
finding of a violation of section 337
with respect to both asserted patents by
Double Diamond and Effervescent.
Holey Soles was found in violation with
respect to the ’789 patent based on the
Federal Circuit’s reversal of noninfringement and lack of domestic
industry as to this patent. See Crocs, 598
F.3d at 1311.
On May 6 and 13, 2011, respectively,
complainant Crocs and the IA filed
briefs and reply briefs on remedy, the
public interest, and bonding. Also, on
May 6 and 13, 2011, respectively,
respondent Effervescent filed a brief and
reply brief on these issues. Respondent
Double Diamond filed a reply brief on
May 13, 2011.
The Commission has made its
determination on the issues of remedy,
the public interest, and bonding. The
Commission has determined that the
appropriate form of relief is both: (1) A
general exclusion order prohibiting the
unlicensed entry of foam footwear that
infringe one or more of (i) claims 1–2 of
the ’858 patent, and (ii) the claimed
design of the ’789 patent; and (2) cease
and desist orders prohibiting Double
Diamond, Effervescent, and Holey Soles
from conducting any of the following
activities in the United States:
Importing, selling, marketing,
advertising, distributing, offering for
sale, transferring (except for
exportation), and soliciting U.S. agents
or distributors for, foam footwear that
infringe one or more of (i) claims 1 or
2 of the ’858 patent, and (ii) the claimed
design of the ’789 patent.
The Commission further determined
that the public interest factors
enumerated in section 337(d)(1) (19
U.S.C. 1337(d)(1)) do not preclude
issuance of the general exclusion order
or the cease and desist orders. Finally,
the Commission determined to set a
bond of $0.00 for Double Diamond’s
covered products, a bond of $0.01 per
pair of shoes for Holey Soles’ covered
products, a bond of $0.05 per pair of
shoes for Effervescent’s covered
products, and a bond of 100% of the
entered value (for all other covered
products) to permit temporary
importation during the period of
Presidential review (19 U.S.C. 1337(j)).
The Commission’s orders and opinion
were delivered to the President and to
the United States Trade Representative
on the day of their issuance.
The Commission has terminated this
investigation. The authority for the
Commission’s determination is
contained in section 337 of the Tariff
PO 00000
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Fmt 4703
Sfmt 4703
Act of 1930, as amended (19 U.S.C.
1337), and in section 210.50 of the
Commission’s Rules of Practice and
Procedure (19 CFR 210.50).
Issued: July 15, 2011.
By order of the Commission.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011–18338 Filed 7–20–11; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–717]
In the Matter of Certain Digital Imaging
Devices and Related Software; Notice
of Commission Decision Not To
Review the ALJ’s Final Initial
Determination Finding No Violation of
Section 337; Termination of
Investigation
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’’) final initial
determination (‘‘ID’’) issued on May 12,
2011, finding no violation of section 337
of the Tariff Act of 1930, 19 U.S.C. 1337,
in this investigation.
FOR FURTHER INFORMATION CONTACT:
Panyin Hughes, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202)
205–3042. 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 19, 2010, based on a complaint
filed by Apple Inc. of Cupertino,
California (‘‘Apple’’). 75 FR 28058 (May
19, 2010). The complaint alleged
SUMMARY:
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]]>Agencies
[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Notices]
[Pages 43723-43724]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18338]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-567]
Certain Foam Footwear; Final Commission Determination of
Violation; Issuance of a General Exclusion Order and Cease and Desist
Orders; and Termination of the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has terminated the above-captioned investigation with a
finding of violation of section 337, and has issued a general exclusion
order directed against infringing foam footwear products, and cease and
desist orders directed against respondents Double Diamond Distribution
Ltd. (``Double Diamond'') of Canada, Effervescent Inc.
(``Effervescent'') of Fitchburg, Massachusetts, and Holey Soles Holding
Ltd. (``Holey Soles'') of Canada.
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. 1337), 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 (``the '858 patent''); U.S.
Patent No. D517,789 (``the '789 patent''); 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; (3) Effervescent; (4) Gen-X
Sports, Inc. of Toronto, Ontario; (5) Holey Soles; (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 three respondents have been
terminated from the investigation on the basis of a consent order,
settlement agreement, or undisputed Commission determination of non-
infringement. The three remaining respondents are Double Diamond,
Effervescent, and Holey Soles.
On April 11, 2008, the presiding administrative law judge (``ALJ'')
issued his final initial determination (``ID'') finding no violation of
section 337. The ALJ found non-infringement and non-satisfaction of the
technical prong of the domestic industry requirement with respect to
the '789 patent, and found that the '858 patent was proven invalid as
obvious under 35 U.S.C. 103. 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
[[Page 43724]]
violation. On July 25, 2008, after review, the Commission affirmed the
ALJ's final 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. See Crocs, Inc. v. United States
Int'l Trade Comm'n, 598 F.3d 1294, 1311 (Fed. Cir. 2010). The Federal
Circuit also specifically ``remand[ed] the investigation for a
determination of infringement of the '858 patent and any appropriate
remedies.'' Id. 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
asserted patents were not unenforceable. On February 25, 2011,
respondents Effervescent and Double Diamond 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 the motion, but without prejudice to respondents
refiling their motion stating good cause for the enlargement of time.
On March 16, 2011, respondents Effervescent and Double Diamond 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 the motion for an enlargement of time and making
responses due on March 28, 2011. On March 28, 2011, Crocs and the
Commission investigative attorney (``IA'') each filed a brief in
response to respondents' petition for review.
On April 25, 2011, the Commission issued notice of its
determination not to review the ALJ's remand ID and requested written
submissions on the issues of remedy, the public interest, and bonding
from the parties and interested non-parties. See 76 FR 24052-53 (April
29, 2011). The Commission's notice also included its determination 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, resulted in a finding of a violation of section 337 with
respect to both asserted patents by Double Diamond and Effervescent.
Holey Soles was found in violation with respect to the '789 patent
based on the Federal Circuit's reversal of non-infringement and lack of
domestic industry as to this patent. See Crocs, 598 F.3d at 1311.
On May 6 and 13, 2011, respectively, complainant Crocs and the IA
filed briefs and reply briefs on remedy, the public interest, and
bonding. Also, on May 6 and 13, 2011, respectively, respondent
Effervescent filed a brief and reply brief on these issues. Respondent
Double Diamond filed a reply brief on May 13, 2011.
The Commission has made its determination on the issues of remedy,
the public interest, and bonding. The Commission has determined that
the appropriate form of relief is both: (1) A general exclusion order
prohibiting the unlicensed entry of foam footwear that infringe one or
more of (i) claims 1-2 of the '858 patent, and (ii) the claimed design
of the '789 patent; and (2) cease and desist orders prohibiting Double
Diamond, Effervescent, and Holey Soles from conducting any of the
following activities in the United States: Importing, selling,
marketing, advertising, distributing, offering for sale, transferring
(except for exportation), and soliciting U.S. agents or distributors
for, foam footwear that infringe one or more of (i) claims 1 or 2 of
the '858 patent, and (ii) the claimed design of the '789 patent.
The Commission further determined that the public interest factors
enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude
issuance of the general exclusion order or the cease and desist orders.
Finally, the Commission determined to set a bond of $0.00 for Double
Diamond's covered products, a bond of $0.01 per pair of shoes for Holey
Soles' covered products, a bond of $0.05 per pair of shoes for
Effervescent's covered products, and a bond of 100% of the entered
value (for all other covered products) to permit temporary importation
during the period of Presidential review (19 U.S.C. 1337(j)). The
Commission's orders and opinion were delivered to the President and to
the United States Trade Representative on the day of their issuance.
The Commission has terminated this investigation. 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 section 210.50
of the Commission's Rules of Practice and Procedure (19 CFR 210.50).
Issued: July 15, 2011.
By order of the Commission.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-18338 Filed 7-20-11; 8:45 am]
BILLING CODE 7020-02-P
