Certain Soft-Edged Trampolines and Components Thereof Notice of Commission Determination To Review the Final Initial Determination in Part; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, Public Interest, and Bonding, 7631-7633 [2015-02782]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 80, Number 28 (Wednesday, February 11, 2015)]
[Notices]
[Pages 7631-7633]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02782]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-908]


Certain Soft-Edged Trampolines and Components Thereof Notice of 
Commission Determination To Review the Final Initial Determination in 
Part; Schedule for Filing Written Submissions on the Issues Under 
Review and on Remedy, Public Interest, and Bonding

AGENCY: U.S. International Trade Commission.

[[Page 7632]]


ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review-in-part the final initial 
determination issued by the presiding administrative law judge 
(``ALJ'') in the above-captioned investigation on December 5, 2014. The 
Commission requests certain briefing from the parties on the issues 
under review, as indicated in this notice. The Commission also requests 
briefing from the parties and interested persons on the issues of 
remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Lucy Grace D. Noyola, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-205-3438. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
telephone 202-205-2000. General information concerning the Commission 
may also be obtained by accessing its Internet server (https://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (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 January 30, 2014, based on a complaint filed by of Springfree 
Trampoline, Inc. of Markham, Canada, Springfree Trampoline USA Inc. of 
Markham, Canada, and Spring Free Limited Partnership of Markham, Canada 
(collectively, ``Springfree''). 79 FR 4956, 4956 (Jan. 30, 2014). The 
complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337, in the importation, sale for importation, 
or sale within the United States after importation of certain soft-
edged trampolines and components thereof by reason of infringement of 
one or more of claims 1 and 13 of U.S. Patent No. 6,319,174 (the `` 
'174 patent''). Id. The notice of investigation names Vuly Trampolines 
Pty. Ltd. of Brisbane, Australia (``Vuly'') as the sole respondent. Id. 
at 4957. The Office of Unfair Import Investigations did not participate 
in the investigation. Id.
    On December 5, 2014, the ALJ issued a final ID finding no violation 
of section 337. The ALJ found that Vuly's accused products infringe 
claims 1 and 13 of the '174 patent. The ALJ found that Springfree's 
alleged domestic industry products practice claim 13, but found that 
Springfree failed to satisfy the economic prong of the domestic 
industry requirement. The ALJ further found that claim 1 was not shown 
to be invalid, but found that claim 13 is invalid as anticipated by the 
prior art. On December 18, 2014, the ALJ issued a recommended 
determination (``RD'') on remedy and bonding. The ALJ recommended that, 
if the Commission finds a section 337 violation, a limited exclusion 
order should issue, with an exception for replacement, repair, and 
warranty parts. The ALJ recommended that the bond rate be set at zero 
percent.
    On December 22, 2014, Springfree filed a petition for review of the 
ALJ's construction of the claim term ``first retaining means'' in claim 
1 and the ALJ's findings with respect to domestic industry and 
anticipation of claim 13. The same day, Vuly filed a contingent 
petition for review of nearly all the remaining determinations by the 
ALJ in the event the Commission determines to review the ID. On January 
2, 2015, the parties filed responses to the petitions. The Commission 
did not receive any post-RD public interest comments from the parties 
or the public.
    Having examined the record of this investigation, including the ID, 
the petitions for review, and the responses thereto, the Commission has 
determined to review the ALJ's determination of no violation. 
Specifically, the Commission has determined to review (1) the ALJ's 
construction of ``flexible mat,'' ``first retaining means,'' and 
``flexible elongated rod''; (2) the ALJ's findings of infringement of 
claim 1 and 13; (3) the ALJ's findings regarding the technical prong of 
the domestic industry requirement with respect to claims 1 and 13; (4) 
the ALJ's findings regarding validity with respect to claims 1 and 13; 
and (5) the ALJ's finding regarding the economic prong of the domestic 
industry requirement.
    The parties are requested to brief their positions on the issues 
under review with reference to the applicable law and the existing 
evidentiary record. In connection with its review, the Commission 
requests responses to the following questions only.
    1. What is the plain and ordinary meaning of ``flexible mat''? 
Please discuss whether this limitation, based on its plain and ordinary 
meaning, is met by the accused products, the alleged domestic industry 
products, and the prior art.
    2. Please identify the structures disclosed in the '174 patent 
corresponding to the claimed function of the ``first retaining means'' 
limitation. Discuss the relevance, if any, of Micro Chemical, Inc. v. 
Great Plains Chemical Co., 194 F.3d 1250 (Fed. Cir. 1999) and Ishida 
Co. v. Taylor, 221 F.3d 1310 (Fed. Cir. 2000). Please discuss how your 
response affects the analyses with respect to infringement, the 
technical prong of the domestic industry requirement, and validity.
    3. What evidence in the record shows that Springfree's alleged 
domestic industry investment or employment activities are significant 
in the context of the industry in question, Springfree's relative size, 
the article of commerce, and the realities of the marketplace?
    4. With respect to Springfree's alleged domestic industry products, 
how do Springfree's domestic industry investments in plant and 
equipment and/or employment of labor and capital compare to its foreign 
investments and/or employment? What share of the overall cost of 
manufacturing and installation of a Springfree trampoline is accounted 
for by installation service costs in the United States? Does this 
information support a finding that Springfree's domestic activities are 
significant?
    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 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 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

[[Page 7633]]

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 and prescribed by the 
Secretary of the Treasury. The Commission is therefore interested in 
receiving submissions concerning the amount of the bond that should be 
imposed if a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on all of the issues identified in this 
notice. Parties to the investigation, interested government agencies, 
and any other interested parties are encouraged to file written 
submissions on the issues of remedy, the public interest, and bonding. 
Such submissions should address the recommended determination by the 
ALJ on remedy and bonding. Complainant Springfree is also requested to 
submit proposed remedial orders for the Commission's consideration. 
Springfree is also requested to state the date that the asserted patent 
expires and the HTSUS numbers under which the accused products are 
imported, and provide identification information for all known 
importers of the subject articles. Initial written submissions and 
proposed remedial orders must be filed no later than close of business 
on Thursday, February 19, 2015. Initial written submissions by the 
parties shall be no more than 40 pages, excluding any exhibits. Reply 
submissions must be filed no later than the close of business on 
Monday, March 2, 2015. Reply submissions by the parties shall be no 
more than 20 pages, excluding any exhibits. 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-908'') 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 the any confidential filing. All nonconfidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.

     Issued: February 5, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-02782 Filed 2-10-15; 8:45 am]
BILLING CODE 7020-02-P