Certain Personal Transporters, Components Thereof, and Packaging and Manuals Therefor and Certain Personal Transporters and Components Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination; Schedule for Filing Written Submissions on Certain Issues Under Review and on Remedy, the Public Interest, and Bonding, 48724-48726 [2017-22652]
Download as PDF
<![CDATA[
48724
Federal Register / Vol. 82, No. 201 / Thursday, October 19, 2017 / Notices
INTERNATIONAL TRADE
COMMISSION
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 731–TA–313–314, 317,
and 379 (Fourth Review)]
[Investigation No. 337–TA–1007,
Investigation No. 337–TA–1021
(Consolidated)]
Brass Sheet and Strip From France,
Germany, Italy, and Japan;
Determinations
On the basis of the record 1 developed
in the subject five-year reviews, the
United States International Trade
Commission (‘‘Commission’’)
determines, pursuant to the Tariff Act of
1930 (‘‘the Act’’), that revocation of the
antidumping duty orders on brass sheet
and strip from France, Germany, Italy,
and Japan would be likely to lead to
continuation or recurrence of material
injury to an industry in the United
States within a reasonably foreseeable
time.
Background
The Commission, pursuant to section
751(c) of the Act (19 U.S.C. 1675(c)),
instituted these reviews on March 1,
2017 (82 FR 12238) and determined on
June 5, 2017 that it would conduct
expedited reviews (82 FR 32871, July
18, 2017).
The Commission made these
determinations pursuant to section
751(c) of the Act (19 U.S.C. 1675(c)). It
completed and filed its determinations
in these reviews on October 13, 2017.
The views of the Commission are
contained in USITC Publication 4733
(October 2017), entitled Brass Sheet and
Strip from France, Germany, Italy, and
Japan: Investigation Nos. 731–TA–313–
314, 317, and 379 (Fourth Review).
By order of the Commission.
Issued: October 13, 2017.
Jessica Mullan,
Attorney Advisor.
[FR Doc. 2017–22653 Filed 10–18–17; 8:45 am]
rmajette on DSKBCKNHB2PROD with NOTICES
BILLING CODE 7020–02–P
1 The record is defined in sec. 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
VerDate Sep<11>2014
15:13 Oct 18, 2017
Jkt 244001
Certain Personal Transporters,
Components Thereof, and Packaging
and Manuals Therefor and Certain
Personal Transporters and
Components Thereof; Notice of a
Commission Determination To Review
in Part a Final Initial Determination;
Schedule for Filing Written
Submissions on Certain Issues Under
Review and on Remedy, the Public
Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘the Commission’’) has
determined to review in part the final
initial determination (‘‘ID’’) issued by
the presiding administrative law judge
(‘‘ALJ’’) finding in part a violation of
section 337 of the Tariff Act of 1930, as
amended, in the above-referenced
investigation on August 10, 2017. 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:
Michael Liberman, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
205–3115. 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 Inv. No. 337–
TA–1007, Certain Personal
Transporters, Components Thereof, and
SUMMARY:
PO 00000
Frm 00046
Fmt 4703
Sfmt 4703
Packaging and Manuals Therefor under
section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (‘‘section
337’’), on June 24, 2016, based on a
complaint filed by Segway, Inc. of
Bedford, New Hampshire (‘‘Segway’’);
DEKA Products Limited Partnership of
Manchester, New Hampshire (‘‘DEKA’’);
and Ninebot (Tianjin) Technology Co.,
Ltd. of Tianjin, China (‘‘Ninebot’’)
(collectively, ‘‘Complainants’’). 81 FR
41342–43 (Jun. 24, 2016). The complaint
alleges a violation of section 337 by
reason of infringement of certain claims
of U.S. Patent Nos. 6,302,230 (‘‘the ’230
patent’’); 6,651,763 (‘‘the ’763 patent’’);
7,023,330 (‘‘the ’330 patent’’); 7,275,607
(‘‘the ’607 patent’’); 7,479,872 (‘‘the ’872
patent’’); and 9,188,984 (‘‘the ’984
patent’’); and U.S. Trademark
Registration Nos. 2,727,948 and
2,769,942. The named respondents for
Investigation No. 337–TA–1007 are
Inventist, Inc. of Camas, Washington;
PhunkeeDuck, Inc. of Floral Park, New
York; Razor USA LLC of Cerritos,
California; Swagway LLC of South
Bend, Indiana (‘‘Swagway’’); Segaway of
Studio City, California; and Jetson
Electric Bikes LLC of New York, New
York (‘‘Jetson’’). The Commission’s
Office of Unfair Import Investigations
(‘‘OUII’’) was also named as a party to
this investigation. 81 FR 41342 (Jun. 24,
2016).
On September 21, 2016, the
Commission instituted Inv. No. 337–
TA–1021, Certain Personal Transporters
and Components Thereof, based on a
complaint filed by the same
Complainants. 81 FR 64936–37 (Sept.
21, 2016). The complaint alleges a
violation of section 337 by reason of
infringement of certain claims of U.S.
Patent Nos. 6,302,230 and 7,275,607.
The named respondents for
Investigation No. 337–TA–1021 are
Powerboard LLC of Scottsdale, Arizona
(‘‘Powerboard’’); Metem Teknoloji
Sistemleri San of Istanbul, Turkey;
Changzhou Airwheel Technology Co.,
Ltd. of Jiangsu, China (‘‘Airwheel’’);
Airwheel of Amsterdam, Netherlands;
Nanjing Fastwheel Intelligent
Technology Co., Ltd. of Nanjing, China;
Shenzhen Chenduoxing Electronic,
Technology Ltd., China, a.k.a. C-Star of
Shenzhen, China; Hangzhou Chic
Intelligent Technology Co., Ltd. of
Hangzhou, China (‘‘Chic’’); Hovershop
of Placentia, California; Shenzhen Jomo
Technology Co., Ltd., a.k.a. Koowheel of
Shenzhen City, China; Guanghzou
Kebye Electronic Technology Co., Ltd.,
a.k.a. Gotway of Shenzhen, China; and
Inventist, Inc. of Camas, Washington.
OUII was also named as a party to this
investigation. 81 Fed. Reg. 64936 (Sept.
E:\FR\FM\19OCN1.SGM
19OCN1
rmajette on DSKBCKNHB2PROD with NOTICES
Federal Register / Vol. 82, No. 201 / Thursday, October 19, 2017 / Notices
21, 2016). The Commission directed the
presiding ALJ to consolidate Inv. Nos.
337–TA–1007 and 337–TA–1021. See
id. at 64937.
Subsequently, the Commission
determined not to review an ID finding
respondents PhunkeeDuck, Inc. and
Segaway in default. Order No. 9 (Sept.
1, 2016) (not reviewed Oct. 3, 2016). The
Commission further determined not to
review an ID granting complainants’
corrected motion to amend the
complaint and notice of investigation to
assert the ’763, ’330, and ’872 patents
against respondent Jetson Electric Bikes
LLC, and to terminate the investigation
with respect to all asserted claims of the
’984 patent as to all respondents. Order
No. 17 (Nov. 14, 2016) (not reviewed
Dec. 7, 2016). The Commission also
determined not to review an ID
terminating the investigation as to
respondent Nanjing Fastwheel
Intelligent Technology Co., Ltd. based
on a Consent Order Stipulation. Order
No. 18 (Nov. 15, 2016) (not reviewed
Dec. 7, 2016).
The Commission likewise determined
not to review an ID granting a motion
to terminate the investigation as to the
’763 patent. Order No. 19 (Dec. 16,
2016) (not reviewed Jan. 10, 2017). The
Commission further determined not to
review an ID finding respondents
Shenzhen Chenduoxing Electronic,
Technology Ltd., China, a.k.a. C-Star;
Shenzhen Jomo Technology Co., Ltd.,
a.k.a. Koowheel; Guanghzou Kebye
Electronic Technology Co., Ltd., a.k.a.
Gotway; Metem Teknoloji Sistemleri
San; and Airwheel Netherlands in
default. Order No. 22 (Jan. 9, 2017) (not
reviewed Feb. 7, 2017). The Commission
also determined not to review an ID
terminating this investigation with
respect to all asserted claims of the ‘330
patent and the ‘872 patent as to all
respondents. See Order No. 24 (Jan. 10,
2017) (not reviewed Feb. 7, 2017).
Furthermore, the Commission
determined to review an ID terminating
respondent Inventist, Inc. in this
investigation based on a Consent Order
Stipulation and proposed Consent
Order. Order No. 25 (Jan. 31, 2017)
(Notice of Review issued Feb. 22, 2017
(‘‘Notice of Review’’)). The Commission
requested corrections to be made in the
proposed Consent Order. See Notice of
Review at 2. The corrected Consent
Order was filed with the Commission on
February 27, 2017. The Commission
determined to affirm Order No. 25, and
terminated the investigation as to
Inventist and issued a Consent Order on
October 12, 2017.
The Commission also determined not
to review an ID to terminate this
investigation as to Razor USA, LLC
VerDate Sep<11>2014
15:13 Oct 18, 2017
Jkt 244001
based on a Settlement Agreement and
Release. Order No. 28 (Mar. 22, 2017)
(not reviewed Apr. 24, 2017). Also, the
Commission determined not to review
an ID granting Complainants’ motion for
summary determination concerning the
technical prong of the domestic industry
requirement with respect to the asserted
trademarks. Order No. 32 (Apr. 6, 2017)
(not reviewed May 9, 2017). Finally, the
Commission determined not to review
an ID granting Complainants’ motion to
terminate the investigation as to
respondent Hovershop for good cause.
See Order No. 34 (Apr. 13, 2017) (not
reviewed May 15, 2017).
As a result, the following two patents
(and 13 claims) and two trademarks
remain at issue in this investigation:
Claims 1, 3–5, and 7 of the ‘230 patent;
claims 1–4 and 6 of the ‘607 patent; U.S.
Trademark Registration No. 2,727,948;
and U.S. Trademark Registration No.
2,769,942. The following respondents
participated in the evidentiary hearing
and remain in the investigation:
Airwheel, Chic, Jetson, Powerboard, and
Swagway.
The evidentiary hearing on the
question of violation of section 337 was
held from April 18 through April 21,
2017. The final ID finding in part a
violation of section 337 was issued on
August 10, 2017. The ALJ issued his
recommended determination on
remedy, the public interest and bonding
on August 22, 2017. The ALJ
recommended that if the Commission
finds a violation of section 337 in the
present investigation, the Commission
should: (1) Issue a general exclusion
order (‘‘GEO’’) covering accused
products found to infringe the asserted
patents; (2) issue a limited exclusion
order (‘‘LEO’’) covering accused
products found to infringe the asserted
patents if the Commission does not
issue a GEO; (3) issue an LEO covering
accused products found to infringe the
asserted trademarks; (4) issue cease and
desist orders; and (5) not require a bond
during the Presidential review period.
RD at 1–2; 18. No public interest
statements were filed by the public in
this investigation.
All parties to this investigation that
participated in the evidentiary hearing
(with the exception of respondent
Powerboard) filed timely petitions for
review of various portions of the final
ID. The parties likewise filed timely
responses to the petitions.
On September 11, 2017, Complainants
filed a ‘‘Request For Acceptance of
Memorandum Correcting Misstatements
of the Record Found In Respondents
Chic’s and Airwheel’s Oppositions and
OUII’S Response to Complainant’s
Petition For Review’’ (‘‘Request’’). The
PO 00000
Frm 00047
Fmt 4703
Sfmt 4703
48725
IA and Respondents Chic and Airwheel
filed timely responsive pleadings
opposing Complainants’ Request. The
Commission notes that no such further
briefing is normally permitted, and that
in any event it can resolve the relevant
facts from the established record in this
Investigation without additional briefing
from Complainants or any other party in
determining whether to review the final
ID. Accordingly, Complainants’ Request
is denied.
Having examined the record in this
investigation, including the final ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the final ID in part. In
particular, the Commission has
determined as follows:
(1) To review the ID’s determination
that the claim term ‘‘maximum
operating velocity’’ should be construed
to mean ‘‘a variable maximum velocity
where adequate acceleration potential is
available to enable balance and control
of the vehicle,’’ see ID at 44;
(2) to review the ID’s determination
that ‘‘nothing in the plain language of
the disputed limitation [‘the motorized
drive arrangement causing, when
powered, automatically balanced
operation of the system’] from claim 1
of the ’230 patent requires the operation
by a rider. The claim only requires the
‘motorized drive arrangement causing,
when powered, automatically balanced
operation of the system,’ ’’ see ID at 82;
(3) to review the ID’s infringement,
validity, and domestic industry
(technical prong) determinations
pertaining to the ’230 patent;
(4) to review the instances in the ID
that refer to a disclaimer of ‘‘manual
input’’ with respect to the ’607 patent.
On review, the Commission finds that
this disclaimer is actually a disclaimer
of ‘‘manual input via joystick.’’ The
Commission notes that the ID uses these
terms interchangeably and determines
not to review any other portion of the
ID’s analysis or findings pertaining to
this disclaimer. The Commission’s
analysis on this issue will be provided
in our opinion, which will issue upon
conclusion of the investigations;
(5) to review the ID’s finding with
respect to actual confusion regarding the
SWAGWAY mark, see ID at 171–72.
In addition, the Commission has
determined to correct two typographical
errors: In the first line of the last
paragraph on page 170 ‘‘the Swagway
‘trademark’’ is replaced with ‘‘the
Segway ‘trademark’’; and in the first line
on page 171 ‘‘‘Swagway’’’ is replaced
with ‘‘‘Segway’’’.
The Commission has determined not
to review the remainder of the ID.
E:\FR\FM\19OCN1.SGM
19OCN1
rmajette on DSKBCKNHB2PROD with NOTICES
48726
Federal Register / Vol. 82, No. 201 / Thursday, October 19, 2017 / Notices
The parties are requested to brief their
positions on only the following issues,
with reference to the applicable law and
the evidentiary record:
1. The ID determined with respect to
the ’230 patent that ‘‘the claim term
‘maximum operating velocity’ should be
construed to mean ‘a variable maximum
velocity where adequate acceleration
potential is available to enable balance
and control of the vehicle.’ ’’ ID at 44.
a. Does intrinsic evidence support the
ID’s above determination?
b. Does extrinsic evidence support the
ID’s above determination?
2. The ID determined with respect to
the ‘230 patent that ‘‘nothing in the
plain language of the disputed
limitation [‘the motorized drive
arrangement causing, when powered,
automatically balanced operation of the
system’] from claim 1 of the ‘230 patent
requires the operation by a rider. The
claim only requires the ‘motorized drive
arrangement causing, when powered,
automatically balanced operation of the
system.’ ’’ ID at 82.
a. Does intrinsic evidence support the
ID’s above determination?
b. Does extrinsic evidence support the
ID’s above determination?
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 respondents 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, including against the defaulted
respondents. 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 are likely to do so. For
background, see Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. at 7–10
(Dec. 1994).
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
health and welfare, (2) competitive
conditions in the U.S. economy, (3) U.S.
production of articles that are like or
VerDate Sep<11>2014
15:13 Oct 18, 2017
Jkt 244001
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.
Written Submissions: The parties to
the investigation are requested to file
written submissions on the issues under
review. The submissions should be
concise and thoroughly referenced to
the record in this investigation. 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 on remedy, the public
interest and bonding issued on August
22, 2017, by the ALJ and the appropriate
remedy for the respondents previously
found in default. Complainants and the
Commission investigative attorney are
also requested to submit proposed
remedial orders for the Commission’s
consideration.
Complainants are further requested to
provide the expiration date of the ‘230
patent, the HTSUS numbers under
which the accused articles are imported,
and any known importers of the accused
products. The written submissions and
proposed remedial orders must be filed
no later than the close of business on
October 30, 2017. Reply submissions
must be filed no later than the close of
business on November 6, 2017. 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–1007,’ ‘Investigation No. 337–
TA–1021’ (Consolidated))’’ in a
prominent place on the cover page and/
PO 00000
Frm 00048
Fmt 4703
Sfmt 4703
or the first page. (See Handbook for
Electronic Filing Procedures, https://
www.usitc.gov/secretary/fed_reg_
notices/rules/handbook_on_
electronicfiling.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. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this Investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. 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 Part
210 of the Commission’s Rules of
Practice and Procedure, 19 CFR part
210.
By order of the Commission.
Issued: October 13, 2017.
Jessica Mullan,
Attorney Advisor.
[FR Doc. 2017–22652 Filed 10–18–17; 8:45 am]
BILLING CODE 7020–02–P
NATIONAL SCIENCE FOUNDATION
Advisory Committee for Mathematical
and Physical Sciences; Notice of
Meeting
In accordance with the Federal
Advisory Committee Act (Pub. L. 92–
463, as amended), the National Science
Foundation (NSF) announces the
following meeting:
E:\FR\FM\19OCN1.SGM
19OCN1
]]>Agencies
[Federal Register Volume 82, Number 201 (Thursday, October 19, 2017)]
[Notices]
[Pages 48724-48726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22652]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1007, Investigation No. 337-TA-1021
(Consolidated)]
Certain Personal Transporters, Components Thereof, and Packaging
and Manuals Therefor and Certain Personal Transporters and Components
Thereof; Notice of a Commission Determination To Review in Part a Final
Initial Determination; Schedule for Filing Written Submissions on
Certain 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 (``the Commission'') has determined to review in part the
final initial determination (``ID'') issued by the presiding
administrative law judge (``ALJ'') finding in part a violation of
section 337 of the Tariff Act of 1930, as amended, in the above-
referenced investigation on August 10, 2017. 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: Michael Liberman, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-3115. 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 Inv. No. 337-TA-
1007, Certain Personal Transporters, Components Thereof, and Packaging
and Manuals Therefor under section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``section 337''), on June 24, 2016, based on a
complaint filed by Segway, Inc. of Bedford, New Hampshire (``Segway'');
DEKA Products Limited Partnership of Manchester, New Hampshire
(``DEKA''); and Ninebot (Tianjin) Technology Co., Ltd. of Tianjin,
China (``Ninebot'') (collectively, ``Complainants''). 81 FR 41342-43
(Jun. 24, 2016). The complaint alleges a violation of section 337 by
reason of infringement of certain claims of U.S. Patent Nos. 6,302,230
(``the '230 patent''); 6,651,763 (``the '763 patent''); 7,023,330
(``the '330 patent''); 7,275,607 (``the '607 patent''); 7,479,872
(``the '872 patent''); and 9,188,984 (``the '984 patent''); and U.S.
Trademark Registration Nos. 2,727,948 and 2,769,942. The named
respondents for Investigation No. 337-TA-1007 are Inventist, Inc. of
Camas, Washington; PhunkeeDuck, Inc. of Floral Park, New York; Razor
USA LLC of Cerritos, California; Swagway LLC of South Bend, Indiana
(``Swagway''); Segaway of Studio City, California; and Jetson Electric
Bikes LLC of New York, New York (``Jetson''). The Commission's Office
of Unfair Import Investigations (``OUII'') was also named as a party to
this investigation. 81 FR 41342 (Jun. 24, 2016).
On September 21, 2016, the Commission instituted Inv. No. 337-TA-
1021, Certain Personal Transporters and Components Thereof, based on a
complaint filed by the same Complainants. 81 FR 64936-37 (Sept. 21,
2016). The complaint alleges a violation of section 337 by reason of
infringement of certain claims of U.S. Patent Nos. 6,302,230 and
7,275,607. The named respondents for Investigation No. 337-TA-1021 are
Powerboard LLC of Scottsdale, Arizona (``Powerboard''); Metem Teknoloji
Sistemleri San of Istanbul, Turkey; Changzhou Airwheel Technology Co.,
Ltd. of Jiangsu, China (``Airwheel''); Airwheel of Amsterdam,
Netherlands; Nanjing Fastwheel Intelligent Technology Co., Ltd. of
Nanjing, China; Shenzhen Chenduoxing Electronic, Technology Ltd.,
China, a.k.a. C-Star of Shenzhen, China; Hangzhou Chic Intelligent
Technology Co., Ltd. of Hangzhou, China (``Chic''); Hovershop of
Placentia, California; Shenzhen Jomo Technology Co., Ltd., a.k.a.
Koowheel of Shenzhen City, China; Guanghzou Kebye Electronic Technology
Co., Ltd., a.k.a. Gotway of Shenzhen, China; and Inventist, Inc. of
Camas, Washington. OUII was also named as a party to this
investigation. 81 Fed. Reg. 64936 (Sept.
[[Page 48725]]
21, 2016). The Commission directed the presiding ALJ to consolidate
Inv. Nos. 337-TA-1007 and 337-TA-1021. See id. at 64937.
Subsequently, the Commission determined not to review an ID finding
respondents PhunkeeDuck, Inc. and Segaway in default. Order No. 9
(Sept. 1, 2016) (not reviewed Oct. 3, 2016). The Commission further
determined not to review an ID granting complainants' corrected motion
to amend the complaint and notice of investigation to assert the '763,
'330, and '872 patents against respondent Jetson Electric Bikes LLC,
and to terminate the investigation with respect to all asserted claims
of the '984 patent as to all respondents. Order No. 17 (Nov. 14, 2016)
(not reviewed Dec. 7, 2016). The Commission also determined not to
review an ID terminating the investigation as to respondent Nanjing
Fastwheel Intelligent Technology Co., Ltd. based on a Consent Order
Stipulation. Order No. 18 (Nov. 15, 2016) (not reviewed Dec. 7, 2016).
The Commission likewise determined not to review an ID granting a
motion to terminate the investigation as to the '763 patent. Order No.
19 (Dec. 16, 2016) (not reviewed Jan. 10, 2017). The Commission further
determined not to review an ID finding respondents Shenzhen Chenduoxing
Electronic, Technology Ltd., China, a.k.a. C-Star; Shenzhen Jomo
Technology Co., Ltd., a.k.a. Koowheel; Guanghzou Kebye Electronic
Technology Co., Ltd., a.k.a. Gotway; Metem Teknoloji Sistemleri San;
and Airwheel Netherlands in default. Order No. 22 (Jan. 9, 2017) (not
reviewed Feb. 7, 2017). The Commission also determined not to review an
ID terminating this investigation with respect to all asserted claims
of the `330 patent and the `872 patent as to all respondents. See Order
No. 24 (Jan. 10, 2017) (not reviewed Feb. 7, 2017).
Furthermore, the Commission determined to review an ID terminating
respondent Inventist, Inc. in this investigation based on a Consent
Order Stipulation and proposed Consent Order. Order No. 25 (Jan. 31,
2017) (Notice of Review issued Feb. 22, 2017 (``Notice of Review'')).
The Commission requested corrections to be made in the proposed Consent
Order. See Notice of Review at 2. The corrected Consent Order was filed
with the Commission on February 27, 2017. The Commission determined to
affirm Order No. 25, and terminated the investigation as to Inventist
and issued a Consent Order on October 12, 2017.
The Commission also determined not to review an ID to terminate
this investigation as to Razor USA, LLC based on a Settlement Agreement
and Release. Order No. 28 (Mar. 22, 2017) (not reviewed Apr. 24, 2017).
Also, the Commission determined not to review an ID granting
Complainants' motion for summary determination concerning the technical
prong of the domestic industry requirement with respect to the asserted
trademarks. Order No. 32 (Apr. 6, 2017) (not reviewed May 9, 2017).
Finally, the Commission determined not to review an ID granting
Complainants' motion to terminate the investigation as to respondent
Hovershop for good cause. See Order No. 34 (Apr. 13, 2017) (not
reviewed May 15, 2017).
As a result, the following two patents (and 13 claims) and two
trademarks remain at issue in this investigation: Claims 1, 3-5, and 7
of the `230 patent; claims 1-4 and 6 of the `607 patent; U.S. Trademark
Registration No. 2,727,948; and U.S. Trademark Registration No.
2,769,942. The following respondents participated in the evidentiary
hearing and remain in the investigation: Airwheel, Chic, Jetson,
Powerboard, and Swagway.
The evidentiary hearing on the question of violation of section 337
was held from April 18 through April 21, 2017. The final ID finding in
part a violation of section 337 was issued on August 10, 2017. The ALJ
issued his recommended determination on remedy, the public interest and
bonding on August 22, 2017. The ALJ recommended that if the Commission
finds a violation of section 337 in the present investigation, the
Commission should: (1) Issue a general exclusion order (``GEO'')
covering accused products found to infringe the asserted patents; (2)
issue a limited exclusion order (``LEO'') covering accused products
found to infringe the asserted patents if the Commission does not issue
a GEO; (3) issue an LEO covering accused products found to infringe the
asserted trademarks; (4) issue cease and desist orders; and (5) not
require a bond during the Presidential review period. RD at 1-2; 18. No
public interest statements were filed by the public in this
investigation.
All parties to this investigation that participated in the
evidentiary hearing (with the exception of respondent Powerboard) filed
timely petitions for review of various portions of the final ID. The
parties likewise filed timely responses to the petitions.
On September 11, 2017, Complainants filed a ``Request For
Acceptance of Memorandum Correcting Misstatements of the Record Found
In Respondents Chic's and Airwheel's Oppositions and OUII'S Response to
Complainant's Petition For Review'' (``Request''). The IA and
Respondents Chic and Airwheel filed timely responsive pleadings
opposing Complainants' Request. The Commission notes that no such
further briefing is normally permitted, and that in any event it can
resolve the relevant facts from the established record in this
Investigation without additional briefing from Complainants or any
other party in determining whether to review the final ID. Accordingly,
Complainants' Request is denied.
Having examined the record in this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID in part. In
particular, the Commission has determined as follows:
(1) To review the ID's determination that the claim term ``maximum
operating velocity'' should be construed to mean ``a variable maximum
velocity where adequate acceleration potential is available to enable
balance and control of the vehicle,'' see ID at 44;
(2) to review the ID's determination that ``nothing in the plain
language of the disputed limitation [`the motorized drive arrangement
causing, when powered, automatically balanced operation of the system']
from claim 1 of the '230 patent requires the operation by a rider. The
claim only requires the `motorized drive arrangement causing, when
powered, automatically balanced operation of the system,' '' see ID at
82;
(3) to review the ID's infringement, validity, and domestic
industry (technical prong) determinations pertaining to the '230
patent;
(4) to review the instances in the ID that refer to a disclaimer of
``manual input'' with respect to the '607 patent. On review, the
Commission finds that this disclaimer is actually a disclaimer of
``manual input via joystick.'' The Commission notes that the ID uses
these terms interchangeably and determines not to review any other
portion of the ID's analysis or findings pertaining to this disclaimer.
The Commission's analysis on this issue will be provided in our
opinion, which will issue upon conclusion of the investigations;
(5) to review the ID's finding with respect to actual confusion
regarding the SWAGWAY mark, see ID at 171-72.
In addition, the Commission has determined to correct two
typographical errors: In the first line of the last paragraph on page
170 ``the Swagway `trademark'' is replaced with ``the Segway
`trademark''; and in the first line on page 171 ```Swagway''' is
replaced with ```Segway'''.
The Commission has determined not to review the remainder of the
ID.
[[Page 48726]]
The parties are requested to brief their positions on only the
following issues, with reference to the applicable law and the
evidentiary record:
1. The ID determined with respect to the '230 patent that ``the
claim term `maximum operating velocity' should be construed to mean `a
variable maximum velocity where adequate acceleration potential is
available to enable balance and control of the vehicle.' '' ID at 44.
a. Does intrinsic evidence support the ID's above determination?
b. Does extrinsic evidence support the ID's above determination?
2. The ID determined with respect to the `230 patent that ``nothing
in the plain language of the disputed limitation [`the motorized drive
arrangement causing, when powered, automatically balanced operation of
the system'] from claim 1 of the `230 patent requires the operation by
a rider. The claim only requires the `motorized drive arrangement
causing, when powered, automatically balanced operation of the system.'
'' ID at 82.
a. Does intrinsic evidence support the ID's above determination?
b. Does extrinsic evidence support the ID's above determination?
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
respondents 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, including against
the defaulted respondents. 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 are likely to do so. For background, see
Certain Devices for Connecting Computers via Telephone Lines, Inv. No.
337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (Dec. 1994).
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 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.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues under review. The submissions
should be concise and thoroughly referenced to the record in this
investigation. 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
on remedy, the public interest and bonding issued on August 22, 2017,
by the ALJ and the appropriate remedy for the respondents previously
found in default. Complainants and the Commission investigative
attorney are also requested to submit proposed remedial orders for the
Commission's consideration.
Complainants are further requested to provide the expiration date
of the `230 patent, the HTSUS numbers under which the accused articles
are imported, and any known importers of the accused products. The
written submissions and proposed remedial orders must be filed no later
than the close of business on October 30, 2017. Reply submissions must
be filed no later than the close of business on November 6, 2017. 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-1007,' `Investigation No.
337-TA-1021' (Consolidated))'' 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_electronicfiling.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. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel, solely for cybersecurity
purposes. All contract personnel will sign appropriate nondisclosure
agreements. 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 Part 210 of the Commission's Rules of Practice and Procedure, 19 CFR
part 210.
By order of the Commission.
Issued: October 13, 2017.
Jessica Mullan,
Attorney Advisor.
[FR Doc. 2017-22652 Filed 10-18-17; 8:45 am]
BILLING CODE 7020-02-P
