Certain Multiple Mode Outdoor Grills and Parts Thereof; Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 7033-7034 [2015-02516]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 80, Number 26 (Monday, February 9, 2015)]
[Notices]
[Pages 7033-7034]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02516]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-895]


Certain Multiple Mode Outdoor Grills and Parts Thereof; 
Commission's Final Determination Finding a Violation of Section 337; 
Issuance of a Limited Exclusion Order and Cease and Desist Orders; 
Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found a violation of Section 337 of the Tariff Act of 
1930, as amended (19 U.S.C. 1337), in the unlawful importation, sale 
for importation, and sale after importation by respondents The 
Brinkmann Corporation (``Brinkmann'') of Dallas, Texas; Outdoor Leisure 
Products, Inc. (``OLP'') of Neosho, Missouri; Dongguan Kingsun 
Enterprises Co., Ltd. (``Kingsun'') of Dongguan City, China; Academy, 
Ltd. (``Academy'') of Katy, Texas; and Ningbo Huige Outdoor Products 
Co., Ltd. (``Huige'') of Zhejiang Province, China, of certain multiple 
mode outdoor grills and parts thereof by reason of infringement of one 
or more claims of U.S. Patent No. 8,381,712 (``the '712 patent''). The 
Commission also found defaulted respondent Keesung Manufacturing Co., 
Ltd. (``Keesung'') of Guangzhou, China in violation pursuant to Section 
337(g)(1). The Commission's determination is final, and the 
investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2392. 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 September 26, 2013, based on a complaint filed on behalf of A&J 
Manufacturing, LLC of St. Simons, Georgia and A&J Manufacturing, Inc. 
of Green Cove Springs, Florida (collectively, ``A&J'' or 
``Complainants''). 78 Fed. Reg. 59373 (Sept. 26, 2013). The complaint 
alleged violations of Section 337 of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1337, in the sale for importation, importation, or 
sale within the United States after importation of certain multiple 
mode outdoor grills and parts thereof by reason of infringement of 
certain claims of the '712 patent, the claim of U.S. Patent No. 
D660,646, and the claim of U.S. Patent No. D662,773. The Commission's 
notice of investigation, as amended, named numerous respondents 
including Brinkmann, OLP, Kingsun, Academy, Huige, Char-Broil, LLC 
(``Char-Broil''), and Fudeer Electric Appliance Co., Ltd. (``Fudeer''). 
The Office of Unfair Import Investigations (``OUII'') is also a party 
to this investigation.
    On January 9, 2014, the Commission determined not to review an 
initial determination finding respondent Keesung in default. Order No. 
16 (Dec. 20, 2013).
    On June 24, 2014, the Commission affirmed-in-part and vacated-in-
part an initial determination granting-in-part a motion for summary 
determination of non-infringement filed by Char-Broil, Fudeer, OLP, 
Kingsun, Tractor Supply Co., and Chant Kitchen Equipment (HK) Ltd. The 
Commission found that Complainants admit that the following redesigned 
grills do not infringe the '712 patent: (1) Chant/Tractor Supply's New 
Model 1046761; (2) Rankam's Member's Mark Grill, Model No. GR2071001-MM 
(Ver. 2) and (3) Rankam's Smoke Canyon Grill, Model No. GR2034205-SC 
(Ver. 2). Comm'n Op. at 1 (Jun. 24, 2014). The Commission found the 
other redesigned products at issue were within the scope of the 
investigation. Id. The Commission adopted the ALJ's construction of the 
``openable [] cover'' limitations of claims 1 and 17 on modified 
grounds. Id. The Commission affirmed the ALJ's finding of non-
infringement of claims 1 and 17 for the Char-Broil Oklahoma Joe 
Longhorn Model 12210767 Grill and adopted the ALJ's findings that the 
redesigned grills do not infringe claims 1 and 17 on modified grounds. 
Id. The Commission also found that the ``openable [] cover means'' 
limitations of claim 10 are means-plus-function limitations and 
directed the ALJ to make findings consistent with its means-plus-
function interpretation. Id. at 2.
    On July 31, 2014, the Commission determined not to review an 
initial determination granting a motion for partial termination of the 
investigation based on withdrawal of allegations in the complaint 
concerning the two asserted design patents. See Order No. 50 (Jul. 14, 
2014).
    On September 26, 2014, the ALJ issued the final Initial 
Determination (``ID''), finding a violation of section 337 as to 
respondents Brinkmann, OLP, Kingsun, Academy, and Huige based upon his 
determinations: (i) That certain, but not all, accused products 
infringe at least one claim of the '712 patent; (ii) that the domestic 
industry requirement has been satisfied with respect to the '712 
patent; and (iii) that the asserted claims of the '712 patent have not 
been shown by clear and convincing evidence to be invalid. On October 
9, 2014, the ALJ issued his Recommended Determination on remedy and 
bonding.
    On October 14, 2014, A&J filed a petition for review of certain 
aspects of the final ID's findings concerning claim construction and 
infringement. On the same day, Brinkmann, OLP, and Academy together 
sought review of certain aspects of the final ID's findings regarding 
validity. OLP separately challenged certain aspects of the final ID's 
findings regarding claim construction and infringement. Academy and 
Huige petitioned for review of the ID's determination (Order

[[Page 7034]]

No. 47) to exclude evidence and testimony concerning their redesigns, 
and the ALJ's refusal to make a determination as to whether those 
redesigns infringe the asserted claims of the '712 patent. Responses to 
the petitions were filed on October 22, 2014.
    On December 2, 2014, the Commission determined to review the final 
ID in part and requested briefing on issues it determined to review, 
and on remedy, the public interest, and bonding. 79 Fed. Reg. 72700-02 
(Dec. 8, 2014). Specifically, with respect to the '712 patent, the 
Commission determined to review: (1) The ID's construction of the 
``exhaust'' and ``exhaust means'' limitations in claims 10 and 16, and 
related findings regarding infringement of claims 10-16; (2) the ID's 
findings regarding infringement of claims 1, 4, and 6-8 by the accused 
Dyna-Glo grills imported by respondent GHP Group, Incorporated; (3) the 
ID's findings regarding infringement of claims 1, 2, 4-8, 10, 11, and 
13-15 by the accused Char-Broil Model No. 463724512 grill; and (4) the 
ID's finding that the '712 patent was not shown to be invalid.
    On December 12, 2014, A&J and OUII each filed initial written 
submissions regarding issues on review, remedy, the public interest, 
and bonding. On the same day, the respondents jointly filed their 
initial written submission regarding issues on review, remedy, the 
public interest, and bonding. Responses to the initial written 
submissions were filed on December 19, 2014.
    Having examined the record of this investigation, including the 
parties' submissions and responses thereto, the Commission has 
determined that 35 U.S.C. 112, ] 6 applies to the ``exhaust means'' and 
``exhaust'' limitations in claims 10 and 16. Based on the Commission's 
interpretation of claims 10-16, the Commission has determined (i) that 
the accused Brinkmann 810-3821 grill infringes claims 10, 11, 13, 15, 
and 16; (ii) that the accused Academy/Huige grills infringe claims 10-
13, 15, and 16; and (iii) that the other accused Brinkmann grills, the 
OLP/Kingsun redesigned grills, the OLP/Kingsun original grills, and the 
Char-Broil/Fudeer grills do not infringe any of claims 10-16 of the 
'712 patent. The Commission vacates the ID's finding that the 
DGB730SNB-D grill does not infringe claims 1, 4, and 6-8 of the '712 
patent. The Commission also reverses the ID's finding that the 
DGJ810CSB-D grill does not infringe claims 1, 4, and 6-8 of the '712 
patent. With respect to the accused Char-Broil/Fudeer grill, Model No. 
463724512, the Commission has determined to affirm, with modified 
reasoning, the ID's finding that the grill does not infringe any 
asserted claims of the '712 patent. The Commission has further 
determined to affirm, with modified reasoning, the ID's finding that 
the asserted claims of the '712 patent have not been proven invalid as 
obvious. Accordingly, the Commission has found a violation of section 
337 as to respondents Brinkmann, OLP, Kingsun, Academy, and Huige, and 
defaulted respondent Keesung.
    The Commission has determined that the appropriate form of relief 
is a limited exclusion order prohibiting the unlicensed entry of 
covered multiple mode outdoor grills and parts thereof manufactured by, 
for, or on behalf of Brinkmann, OLP, Kingsun, Academy, Huige, and 
Keesung, or any of their affiliated companies, parents, subsidiaries, 
licensees, or other related business entities, or their successors or 
assigns. The Commission has also determined to issue cease and desist 
orders prohibiting Brinkmann, OLP, and Academy from further importing, 
selling, and distributing articles that infringe certain claims of the 
'712 patent in the United States. The orders include the following 
exemptions: (1) Conduct licensed or authorized by the owner of the '712 
patent; (2) conduct related to covered products imported by or for the 
United States; and (3) the importation, distribution, and sale of parts 
for use in the maintenance, service, or repair of covered products 
purchased prior to the effective date of the orders. The Commission has 
carefully considered the submissions of the parties and has determined 
that the public interest factors enumerated in section 337(d)(1), 
(f)(1), and (g)(1) do not preclude issuance of its orders.
    Finally, the Commission has determined that excluded multiple mode 
outdoor grills and parts thereof may be imported and sold in the United 
States during the period of Presidential review (19 U.S.C. 1337(j)) 
with the posting of a bond of 100 percent of the entered value for all 
covered articles manufactured by, for, or on behalf of Keesung, and the 
posting of a bond of zero percent for all covered articles manufactured 
by, for, or on behalf of Brinkmann, OLP, Kingsun, Academy, and Huige. 
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 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).

    Issued: February 3, 2015.

    By order of the Commission.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-02516 Filed 2-6-15; 8:45 am]
BILLING CODE 7020-02-P