Certain Protective Cases and Components Thereof; Commission Determination To Review a Final Initial Determination Finding a Violation of the Tariff Act of 1930; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest and Bonding, 54924-54926 [2012-21908]
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54924
Federal Register / Vol. 77, No. 173 / Thursday, September 6, 2012 / Notices
lands provide some of the most
outstanding recreational opportunities
for wetland canoeing within the
National Park Service System, and
include significant biological and
geological diversity.
Dated: August 23, 2012.
Colin Campbell,
Deputy Regional Director, Intermountain
Region.
[FR Doc. 2012–21925 Filed 9–5–12; 8:45 am]
BILLING CODE 4312–CB–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–780]
Certain Protective Cases and
Components Thereof; Commission
Determination To Review a Final Initial
Determination Finding a Violation of
the Tariff Act of 1930; Schedule for
Filing Written Submissions on the
Issues Under Review and on Remedy,
the Public Interest and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
DEPARTMENT OF THE INTERIOR
National Park Service
[NPS–WASO–CONC–10876; 2410–OYC]
Temporary Concession Contract for
the Operation of Lodging, Food and
Beverage and Retail Services in
Canyon de Chelly National Mounument
AGENCY:
ACTION:
National Park Service, Interior.
Notice.
The National Park Service
intends to award a temporary
concession contract to a qualified
person for the conduct of certain visitor
services within Canyon de Chelly
National Mounument for a term not to
exceed 3 years. The visitor services
include lodging, food and beverage and
retail.
SUMMARY:
DATES:
January 1, 2013.
FOR FURTHER INFORMATION CONTACT:
Jennifer Bonnett, Intermountain
Regional Concession Chief,
Intermountain Region, 12795 W.
Alameda Parkway, Denver, CO, 80225;
Telephone (303) 969–2661, by email at
Jennifer_bonnett@nps.gov.
The
National Park Service will award the
temporary contract to a qualified person
(as defined in 36 CFR 51.3) under TC–
CACH001–13. The National Park
Service has determined that a temporary
concession contract not to exceed 3
years is necessary in order to avoid
interruption of visitor services and has
taken all reasonable and appropriate
steps to consider alternatives to avoid
an interruption of visitor services.
TKELLEY on DSK3SPTVN1PROD with NOTICES
SUPPLEMENTARY INFORMATION:
Authority: This action is issued pursuant
to 36 CFR 51.24(a). This is not a request for
proposals.
Dated: August 10, 2012.
Peggy O’Dell,
Deputy Director.
[FR Doc. 2012–21937 Filed 9–5–12; 8:45 am]
BILLING CODE 4312–53–P
VerDate Mar<15>2010
18:45 Sep 05, 2012
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part the final initial determination
(‘‘ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’) on
June 29, 2012, finding a violation of
section 337 of the Tariff Act of 1930, 19
U.S.C. 1337, in this investigation.
FOR FURTHER INFORMATION CONTACT:
Panyin A. Hughes, 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 June 30, 2011, based on a complaint
filed by Otter Products, LLC of Fort
Collins, Colorado (‘‘Otter’’). 76 FR 38417
(June 30, 2011). The complaint alleged
violations of section 337 of the Tariff
Act of 1930 (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 protective cases and components
thereof by reason of infringement of
some or all of the claims of United
States Patent Nos. D600,908; D617,784;
D615,536; D617,785; D634,741;
D636,386; and claims 1, 5–7, 13, 15, 17,
SUMMARY:
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19–21, 23, 25, 27, 28, 30–32, 37, 38, 42,
and 44 of United States Patent No.
7,933,122 (‘‘the ’122 patent’’); and
United States Trademark Registration
Nos. 3,788,534; 3,788,535; 3,623,789;
and 3,795,187. Id. The notice of
investigation named the following
respondents: A.G. Findings and Mfg.
Co., Inc. of Sunrise, Florida (‘‘A.G.
Findings’’); AFC Trident Inc. of Chino,
California (‘‘AFC Trident’’);
Alibaba.com Hong Kong Ltd. of
Hangzhou, China (‘‘Alibaba.com’’);
Anbess Electronics Co. Ltd. of
Schenzhen, China (‘‘Anbess’’); Cellairis
Franchise, Inc. of Alpharetta, Georgia
(‘‘Cellairis’’); Cellet Products of Sante Fe
Springs, California (‘‘Cellet’’);
DHgate.com of Beijing, China
(‘‘Dhgate.com’’); Griffin Technology,
Inc. of Nashville, Tennessee (‘‘Griffin’’);
Guangzhou Evotech Industry Co., Ltd. of
Guangdong, China (‘‘Guangzhou
Evotech’’); Hard Candy Cases LLC of
Sacramento, California (‘‘Hard Candy’’);
Hoffco Brands, Inc. of Wheat Ridge,
Colorado (‘‘Hoffco’’); Hong Kong Better
Technology Group Ltd. of Shenzhen,
China (‘‘Better Technology Group’’);
Hong Kong HJJ Co. Ltd. of Shenzhen,
China (‘‘HJJ’’); Hypercel Corporation of
Valencia, California (‘‘Hypercel’’);
InMotion Entertainment of Jacksonville,
Florida (‘‘InMotion’’); MegaWatts
Computers, LLC of Tulsa, Oklahoma
(‘‘MegaWatts’’); National Cellular of
Brooklyn, New York (‘‘National
Cellular’’); OEMBargain.com of
Wantagh, New York
(‘‘OEMBargain.com’’; One Step Up Ltd.
of New York, New York (‘‘One Step
Up’’); Papaya Holdings Ltd. of Central,
Hong Kong (‘‘Papaya’’); Quanyun
Electronics Co., Ltd. of Shenzhen, China
(‘‘Quanyun’’); ShenZhen Star & Way
Trade Co., Ltd. of Guangzhou City,
China (‘‘Star & Way’’); Sinatech
Industries Co., Ltd. of Guangzhou City,
China (‘‘Sinatech’’); SmileCase of
Windsor Mill, Maryland (‘‘SmileCase’’);
Suntel Global Investment Ltd. of
Guangzhou, China (‘‘Suntel’’);
TheCaseInPoint.com of Titusville,
Florida (‘‘TheCaseInPoint.com’’);
TheCaseSpace of Fort Collins, Colorado
(‘‘TheCaseSpace’’); Topter Technology
Co., Ltd. of Guangdong, China
(‘‘Topter’’); and Trait Technology
(Shenzhen) Co., Ltd. of Shenzhen, China
(‘‘Trait Technology’’). Id. With respect
to accused products by Respondent
Griffin, Otter asserted only the ’122
patent.
On August 3, 2011, the ALJ issued an
ID granting Otter leave to amend the
complaint and notice of investigation to
add Global Cellular, Inc. of Alpharetta,
Georgia (‘‘Global Cellular’’) as a
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TKELLEY on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 173 / Thursday, September 6, 2012 / Notices
respondent. See Order No. 3 (August 3,
2011). The Commission determined not
to review the order. See Notice of
Commission Determination not to
Review an Initial Determination
Granting Complainant’s Motion to
Amend the Complaint and Notice of
Investigation to Add a Respondent
(August 18, 2011).
The following respondents were
terminated from the investigation based
on settlement agreements, consent
orders, or withdrawal of allegations
from the complaint: One Step Up,
InMotion, Hard Candy, DHGate.com,
Alibaba.com, A.G. Findings, Cellairis,
Global Cellular, AFC Trident, Better
Technology Group, and
OEMBargain.com. The following
respondents were found in default:
Anbess, Guangzhou Evotech, Hoffco,
HJJ, Sinatech, Suntel, Trait Technology,
Papaya, Quanyun, Topter, Cellet,
TheCaseSpace, MegaWatts, Hypercel,
Star & Way, SmileCase,
TheCaseInpoint.com, and National
Cellular (collectively ‘‘Defaulting
Respondents’’). Griffin is the only
remaining respondent not found in
default, and the only respondent that
appeared before the Commission.
On June 29, 2012, the ALJ issued his
final ID, finding a violation of section
337 by Griffin and the Defaulting
Respondents. Specifically, the ALJ
found that the Commission has subject
matter jurisdiction: in rem jurisdiction
over the accused products and in
personam jurisdiction over the
respondents. ID at 45–46. The ALJ also
found that the importation requirement
of section 337 (19 U.S.C. 1337(a)(1)(B))
has been satisfied. Id. at 38–45.
Regarding infringement, the ALJ found
that the Defaulting Respondents’
accused products infringe the asserted
claims of the asserted patents and the
asserted trademarks. Id. at 62–88. The
ALJ further found that Griffin’s accused
products, the Griffin survivor for iPad 2
and Griffin Explorer for iPhone 4,
literally infringe the asserted claims of
the ’122 patent but that the Griffin
Survivor for iPhone 4 and Griffin
Survivor for iPod Touch do not literally
infringe the asserted claims of the ’122
patent. Id. at 64–78. The ALJ concluded
that an industry exists within the
United States for the asserted patents
and trademarks as required by 19 U.S.C.
1337(a)(2). Id. at 89–108.
The ID includes the ALJ’s
recommended determination on remedy
and bonding. The ALJ recommended
that in the event the Commission finds
a violation of section 337, the
Commission should issue a general
exclusion order directed to infringing
articles. Id. at 118. The ALJ found that
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Jkt 226001
there has been a widespread pattern of
unauthorized use of the asserted patents
and that certain business conditions
exist that warrant a general exclusion
order. Id. at 116. The ALJ also
recommended issuance of cease and
desist orders directed to the defaulting
respondents, recommending that the
cease and desist order should
encompass the Defaulting Respondents’
Internet activities as well. Id. at 120.
Regarding Griffin, the ALJ found that
the record evidence establishes that it
has commercially significant amounts of
infringing protective cases in inventory
in the United States and recommended
issuing a cease and desist order directed
to those infringing products. Id. With
respect to the amount of bond that
should be posted during the period of
Presidential review, the ALJ
recommended that if the Commission
finds a violation of section 337, it
should set a bond of 331.80 percent of
entered value for tablet cases and 195.12
percent for non-tablet cases for
infringing products of the Defaulting
Respondents imported. For Griffin’s
infringing products, the ALJ
recommended setting a bond of 12.45
percent for tablet cases and no bond for
non-tablet cases imported during the
period of Presidential review.
On July 16, 2012, Otter filed a petition
for review of the ID. That same day, the
Commission investigative attorney filed
a petition for review. On July 17, 2012,
Griffin filed a petition for review (the
Commission granted Griffin’s motion for
leave to file its petition one day late).
On July 24, 2012, the parties filed
responses to the petitions for review.
Having examined the record of this
investigation, including the ALJ’s final
ID, the petitions for review, and the
responses thereto, the Commission has
determined to review the final ID in
part. Specifically, the Commission has
determined to review the ALJ’s finding
that the accused Griffin Survivor for
iPod Touch does not literally infringe
the asserted claims of the ’122 patent.
The Commission has determined not to
review any other issues in the ID.
The parties are requested to brief their
positions on the issue under review
with reference to the applicable law and
the evidentiary record. In connection
with its review, the Commission is
particularly interested in responses to
the following questions:
1. Does the ’122 patent teach that the
shape identified as ‘‘switch opening’’
and the shapes identified as ‘‘grooves’’
are mutually exclusive?
2. Is the feature identified in the ’122
patent as a ‘‘switch opening’’ identical
to the feature in the Griffin Survivor for
iPod touch Mr. Anders identified as a
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54925
‘‘groove’’? See CX–1 at page 52
(reproduced in ID at 69).
3. Does the ‘‘groove’’ limitation, as
construed by the ALJ, read on the tab/
groove features identified by Mr. Anders
and located at the top portion of the
Survivor for the iPod Touch?
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 one or
more cease and desist orders that could
result in the respondent(s) 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 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).
If the Commission contemplates some
form of remedy, it must consider the
effects of that remedy on the public
interest. The factors the Commission
will consider are 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. 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
the investigation are requested to file
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TKELLEY on DSK3SPTVN1PROD with NOTICES
54926
Federal Register / Vol. 77, No. 173 / Thursday, September 6, 2012 / Notices
written submissions on the issues
identified in this notice. Parties to the
investigation, interested government
agencies, OUII, 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 is
also requested to submit proposed
remedial orders for the Commission’s
consideration. Complainant is also
requested to state the dates that the
patents expire and the HTSUS numbers
under which the accused products are
imported. The written submissions and
proposed remedial orders must be filed
no later than close of business on
September 14, 2012. Initial submissions
are limited to 100 pages, not including
any attachments or exhibits related to
discussion of the remedy, bonding or
public interest. Reply submissions must
be filed no later than the close of
business on September 21, 2012. Reply
submissions are limited to 50 pages, not
including any attachments or exhibits
related to discussion of the remedy,
bonding or public interest. 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–754’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
secretary/fed_reg_notices/rules/
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 nonconfidential version of the document
must also be filed simultaneously with
any confidential filing. All nonconfidential written submissions will be
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Jkt 226001
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
sections 210.42–46 and 210.50 of the
Commission’s Rules of Practice and
Procedure (19 CFR 210.42–46 and
210.50).
By order of the Commission.
Issued: August 30, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012–21908 Filed 9–5–12; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 731–TA–709 (Third
Review)]
Certain Seamless Carbon and Alloy
Steel; Standard, Line, and Pressure
Pipe From Germany
Determination
On the basis of the record 1 developed
in the subject five-year review, the
United States International Trade
Commission (Commission) determines,
pursuant to section 751(c) of the Tariff
Act of 1930 (19 U.S.C. 1675(c)), that
revocation of the antidumping duty
order on certain seamless carbon and
alloy steel standard, line, and pressure
pipe from Germany would be likely to
lead to continuation or recurrence of
material injury to an industry in the
United States within a reasonably
foreseeable time.2
Background
The Commission instituted this
review on April 2, 2012 (77 FR 19711)
and determined on July 6, 2012, that it
would conduct an expedited review (77
FR 42763, July 20, 2012).
The Commission transmitted its
determination in this review to the
Secretary of Commerce on August 30,
2012. The views of the Commission are
contained in USITC Publication 4348
(August 2012), entitled Certain
Seamless Carbon and Alloy Steel
Standard, Line, and Pressure Pipe from
Germany: Investigation No. 731–TA–709
(Third Review).
By order of the Commission.
1 The record is defined in sec. 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
2 Commissioner Deanna Tanner Okun did not
participate in this review. Commissioner Daniel R.
Pearson did not vote in this review.
PO 00000
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Issued: August 31, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012–21923 Filed 9–5–12; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Consent Decree
Under the Comprehensive
Environmental Response,
Compensation, and Liability Act
Notice is hereby given that on August
28, 2012, a proposed Consent Decree in
United States v. Cornell-Dubilier
Electronics, Inc., Civil Action No. 12–
cv–05407 JLL–MAH, was lodged with
the United States District Court for the
District of New Jersey.
The proposed Consent Decree
resolves the United States’ and the State
of New Jersey’s cost recovery and
natural resource damages claims against
Cornell-Dubilier Electronics, Inc.
(‘‘CDE’’) under Section 107(a) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act, 42 U.S.C. 9601 et seq., relating to
the Cornell-Dubilier Electronics, Inc.
Superfund Site (‘‘Site’’) located in South
Plainfield, New Jersey.
In the proposed Consent Decree, CDE
and the United States and New Jersey
agree to a stipulated judgment amount,
80 percent of the sum of the response
cost and natural resource damage claims
of the United States and New Jersey, or
$367,453,449. CDE has agreed to pay, on
a sliding scale, between 75 and 100
percent of insurance recoveries it
receives to the United States and New
Jersey. In addition to the potential
recovery of insurance proceeds, CDE
will make payments to the United States
and New Jersey over three years totaling
$1.11 million. All of these CDE
payments will be divided between EPA,
New Jersey, and the natural resource
trustees. CDE will also place, as
necessary, up to a total of $3.25 million
into an escrow account to fund its state
court insurance litigation. Finally, the
Decree also resolves potential
contribution claims and the State’s cost
claims against the Department of
Defense and the General Services
Administration. The federal agencies
will pay $16,282,685 toward the United
States’ and the State’s total past and
estimated future response costs and
natural resource damages.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
relating to the Consent Decree.
Comments should be addressed to the
Assistant Attorney General,
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]]>Agencies
[Federal Register Volume 77, Number 173 (Thursday, September 6, 2012)]
[Notices]
[Pages 54924-54926]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21908]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-780]
Certain Protective Cases and Components Thereof; Commission
Determination To Review a Final Initial Determination Finding a
Violation of the Tariff Act of 1930; Schedule for Filing Written
Submissions on the Issues Under Review and on Remedy, the Public
Interest and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on June 29, 2012, finding a violation of section 337 of the
Tariff Act of 1930, 19 U.S.C. 1337, in this investigation.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, 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 June 30, 2011, based on a complaint filed by Otter Products, LLC of
Fort Collins, Colorado (``Otter''). 76 FR 38417 (June 30, 2011). The
complaint alleged violations of section 337 of the Tariff Act of 1930
(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 protective cases and components thereof by
reason of infringement of some or all of the claims of United States
Patent Nos. D600,908; D617,784; D615,536; D617,785; D634,741; D636,386;
and claims 1, 5-7, 13, 15, 17, 19-21, 23, 25, 27, 28, 30-32, 37, 38,
42, and 44 of United States Patent No. 7,933,122 (``the '122 patent'');
and United States Trademark Registration Nos. 3,788,534; 3,788,535;
3,623,789; and 3,795,187. Id. The notice of investigation named the
following respondents: A.G. Findings and Mfg. Co., Inc. of Sunrise,
Florida (``A.G. Findings''); AFC Trident Inc. of Chino, California
(``AFC Trident''); Alibaba.com Hong Kong Ltd. of Hangzhou, China
(``Alibaba.com''); Anbess Electronics Co. Ltd. of Schenzhen, China
(``Anbess''); Cellairis Franchise, Inc. of Alpharetta, Georgia
(``Cellairis''); Cellet Products of Sante Fe Springs, California
(``Cellet''); DHgate.com of Beijing, China (``Dhgate.com''); Griffin
Technology, Inc. of Nashville, Tennessee (``Griffin''); Guangzhou
Evotech Industry Co., Ltd. of Guangdong, China (``Guangzhou Evotech'');
Hard Candy Cases LLC of Sacramento, California (``Hard Candy''); Hoffco
Brands, Inc. of Wheat Ridge, Colorado (``Hoffco''); Hong Kong Better
Technology Group Ltd. of Shenzhen, China (``Better Technology Group'');
Hong Kong HJJ Co. Ltd. of Shenzhen, China (``HJJ''); Hypercel
Corporation of Valencia, California (``Hypercel''); InMotion
Entertainment of Jacksonville, Florida (``InMotion''); MegaWatts
Computers, LLC of Tulsa, Oklahoma (``MegaWatts''); National Cellular of
Brooklyn, New York (``National Cellular''); OEMBargain.com of Wantagh,
New York (``OEMBargain.com''; One Step Up Ltd. of New York, New York
(``One Step Up''); Papaya Holdings Ltd. of Central, Hong Kong
(``Papaya''); Quanyun Electronics Co., Ltd. of Shenzhen, China
(``Quanyun''); ShenZhen Star & Way Trade Co., Ltd. of Guangzhou City,
China (``Star & Way''); Sinatech Industries Co., Ltd. of Guangzhou
City, China (``Sinatech''); SmileCase of Windsor Mill, Maryland
(``SmileCase''); Suntel Global Investment Ltd. of Guangzhou, China
(``Suntel''); TheCaseInPoint.com of Titusville, Florida
(``TheCaseInPoint.com''); TheCaseSpace of Fort Collins, Colorado
(``TheCaseSpace''); Topter Technology Co., Ltd. of Guangdong, China
(``Topter''); and Trait Technology (Shenzhen) Co., Ltd. of Shenzhen,
China (``Trait Technology''). Id. With respect to accused products by
Respondent Griffin, Otter asserted only the '122 patent.
On August 3, 2011, the ALJ issued an ID granting Otter leave to
amend the complaint and notice of investigation to add Global Cellular,
Inc. of Alpharetta, Georgia (``Global Cellular'') as a
[[Page 54925]]
respondent. See Order No. 3 (August 3, 2011). The Commission determined
not to review the order. See Notice of Commission Determination not to
Review an Initial Determination Granting Complainant's Motion to Amend
the Complaint and Notice of Investigation to Add a Respondent (August
18, 2011).
The following respondents were terminated from the investigation
based on settlement agreements, consent orders, or withdrawal of
allegations from the complaint: One Step Up, InMotion, Hard Candy,
DHGate.com, Alibaba.com, A.G. Findings, Cellairis, Global Cellular, AFC
Trident, Better Technology Group, and OEMBargain.com. The following
respondents were found in default: Anbess, Guangzhou Evotech, Hoffco,
HJJ, Sinatech, Suntel, Trait Technology, Papaya, Quanyun, Topter,
Cellet, TheCaseSpace, MegaWatts, Hypercel, Star & Way, SmileCase,
TheCaseInpoint.com, and National Cellular (collectively ``Defaulting
Respondents''). Griffin is the only remaining respondent not found in
default, and the only respondent that appeared before the Commission.
On June 29, 2012, the ALJ issued his final ID, finding a violation
of section 337 by Griffin and the Defaulting Respondents. Specifically,
the ALJ found that the Commission has subject matter jurisdiction: in
rem jurisdiction over the accused products and in personam jurisdiction
over the respondents. ID at 45-46. The ALJ also found that the
importation requirement of section 337 (19 U.S.C. 1337(a)(1)(B)) has
been satisfied. Id. at 38-45. Regarding infringement, the ALJ found
that the Defaulting Respondents' accused products infringe the asserted
claims of the asserted patents and the asserted trademarks. Id. at 62-
88. The ALJ further found that Griffin's accused products, the Griffin
survivor for iPad 2 and Griffin Explorer for iPhone 4, literally
infringe the asserted claims of the '122 patent but that the Griffin
Survivor for iPhone 4 and Griffin Survivor for iPod Touch do not
literally infringe the asserted claims of the '122 patent. Id. at 64-
78. The ALJ concluded that an industry exists within the United States
for the asserted patents and trademarks as required by 19 U.S.C.
1337(a)(2). Id. at 89-108.
The ID includes the ALJ's recommended determination on remedy and
bonding. The ALJ recommended that in the event the Commission finds a
violation of section 337, the Commission should issue a general
exclusion order directed to infringing articles. Id. at 118. The ALJ
found that there has been a widespread pattern of unauthorized use of
the asserted patents and that certain business conditions exist that
warrant a general exclusion order. Id. at 116. The ALJ also recommended
issuance of cease and desist orders directed to the defaulting
respondents, recommending that the cease and desist order should
encompass the Defaulting Respondents' Internet activities as well. Id.
at 120. Regarding Griffin, the ALJ found that the record evidence
establishes that it has commercially significant amounts of infringing
protective cases in inventory in the United States and recommended
issuing a cease and desist order directed to those infringing products.
Id. With respect to the amount of bond that should be posted during the
period of Presidential review, the ALJ recommended that if the
Commission finds a violation of section 337, it should set a bond of
331.80 percent of entered value for tablet cases and 195.12 percent for
non-tablet cases for infringing products of the Defaulting Respondents
imported. For Griffin's infringing products, the ALJ recommended
setting a bond of 12.45 percent for tablet cases and no bond for non-
tablet cases imported during the period of Presidential review.
On July 16, 2012, Otter filed a petition for review of the ID. That
same day, the Commission investigative attorney filed a petition for
review. On July 17, 2012, Griffin filed a petition for review (the
Commission granted Griffin's motion for leave to file its petition one
day late). On July 24, 2012, the parties filed responses to the
petitions for review.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in part.
Specifically, the Commission has determined to review the ALJ's finding
that the accused Griffin Survivor for iPod Touch does not literally
infringe the asserted claims of the '122 patent. The Commission has
determined not to review any other issues in the ID.
The parties are requested to brief their positions on the issue
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in responses to the following questions:
1. Does the '122 patent teach that the shape identified as ``switch
opening'' and the shapes identified as ``grooves'' are mutually
exclusive?
2. Is the feature identified in the '122 patent as a ``switch
opening'' identical to the feature in the Griffin Survivor for iPod
touch Mr. Anders identified as a ``groove''? See CX-1 at page 52
(reproduced in ID at 69).
3. Does the ``groove'' limitation, as construed by the ALJ, read on
the tab/groove features identified by Mr. Anders and located at the top
portion of the Survivor for the iPod Touch?
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 one or more cease and desist orders that could result in the
respondent(s) 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 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).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy on the public interest. The factors
the Commission will consider are 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. 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 the investigation are requested
to file
[[Page 54926]]
written submissions on the issues identified in this notice. Parties to
the investigation, interested government agencies, OUII, 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 is also requested to submit proposed remedial
orders for the Commission's consideration. Complainant is also
requested to state the dates that the patents expire and the HTSUS
numbers under which the accused products are imported. The written
submissions and proposed remedial orders must be filed no later than
close of business on September 14, 2012. Initial submissions are
limited to 100 pages, not including any attachments or exhibits related
to discussion of the remedy, bonding or public interest. Reply
submissions must be filed no later than the close of business on
September 21, 2012. Reply submissions are limited to 50 pages, not
including any attachments or exhibits related to discussion of the
remedy, bonding or public interest. 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-754'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/fed_reg_notices/rules/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 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 sections 210.42-46 and 210.50 of the Commission's Rules of Practice
and Procedure (19 CFR 210.42-46 and 210.50).
By order of the Commission.
Issued: August 30, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-21908 Filed 9-5-12; 8:45 am]
BILLING CODE 7020-02-P
