Certain LED Light Devices, LED Power Supplies, and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target Date, 16280-16282 [2019-07741]
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Federal Register / Vol. 84, No. 75 / Thursday, April 18, 2019 / Notices
identified in the notice of protest will be
stayed pending consideration of the
protest. A plat of survey will not be
officially filed until the dismissal or
resolution of all protests of the plat.
Before including your address, phone
number, email address, or other
personally identifiable information in a
notice of protest or statement of reasons,
you should be aware that the documents
you submit, including your personally
identifiable information, may be made
publicly available in their entirety at
any time. While you can ask the BLM
to withhold your personally identifiable
information from public review, we
cannot guarantee that we will be able to
do so.
Authority: 43 U.S.C. Chap. 3.
Douglas N. Haywood,
Chief Cadastral Surveyor, Alaska.
[FR Doc. 2019–07766 Filed 4–17–19; 8:45 am]
BILLING CODE 4310–JA–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1081]
Certain LED Light Devices, LED Power
Supplies, and Components Thereof;
Commission Determination To Review
in Part a Final Initial Determination
Finding a Violation of Section 337;
Schedule for Filing Written
Submissions on the Issues Under
Review and on Remedy, the Public
Interest, and Bonding; Extension of the
Target Date
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part a final initial determination
(‘‘ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’),
finding a violation of section 337 of the
Tariff Act of 1930. The Commission
requests briefing from the parties on
certain 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. The Commission has also
determined to extend the target date for
the completion of the above-captioned
investigation to June 18, 2019.
FOR FURTHER INFORMATION CONTACT:
Robert Needham, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
jbell on DSK30RV082PROD with NOTICES
SUMMARY:
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17:37 Apr 17, 2019
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708–5468. Copies of non-confidential
documents filed in connection with this
investigation are or will be available for
inspection during official business
hours (8:45 a.m. to 5:15 p.m.) in the
Office of the Secretary, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436,
telephone (202) 205–2000. General
information concerning the Commission
may also be obtained by accessing its
internet server (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 November 8, 2017, based on a
complaint filed by Philips. 82 FR 51872.
The complaint alleges violations of
section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337, in the
importation into the United States, the
sale for importation, and the sale after
importation within the United States
after importation of certain LED devices,
LED power supplies, and components
thereof by reason of infringement of one
or more claims of U.S. Patent Nos.
6,586,890 (‘‘the ’890 patent’’); 7,038,399
(‘‘the ’399 patent’’); 7,256,554 (‘‘the ’554
patent’’); 7,262,559 (‘‘the ’559 patent’’);
and 8,070,328 (‘‘the ’328 patent’’). Id.
The notice of investigation named the
following respondents: Feit Electric
Company, Inc. of Pico Rivera,
California, and Feit Electric Company,
Inc. (China) of Xiamen, China (together,
‘‘Feit’’); Edgewell Personal Care Brands,
LLC of Shelton, Connecticut
(‘‘Edgewell’’); Lowe’s Companies, Inc. of
Mooresville, North Carolina (‘‘LCI’’) and
L G Sourcing, Inc. of North Wilkesboro,
North Carolina (‘‘LGS’’) (together,
‘‘Lowe’s’’); MSi Lighting, Inc. of Boca
Raton, Florida (‘‘MSi Lighting’’); Satco
Products, Inc. of Brentwood, New York
(‘‘Satco’’); Topaz Lighting Corp. of
Holtsville, New York (‘‘Topaz’’); and
Wangs Alliance Corporation d/b/a/WAC
Lighting Co. of Port Washington, New
York, and WAC Lighting (Shanghai) Co.
Ltd. of Shanghai, China (together,
‘‘WAC’’). Id. The Office of Unfair Import
Investigations is not a party to the
investigation. Id.
The Commission subsequently
terminated the investigation with
respect to Topaz and WAC based on
settlement agreements. Order No. 9 (Jan.
8, 2018), not reviewed Notice (Jan. 16,
2018); Order No. 42 (May 2, 2018), not
reviewed Notice (May 18, 2018). The
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Commission also found MSi Lighting in
default for failing to respond to the
complaint and notice of investigation.
Order No. 20 (Jan. 31, 2018), not
reviewed Notice (February 26, 2018).
Additionally, the Commission amended
the notice of investigation to remove
respondent Edgewell, who was not
named in the complaint but was
erroneously included in the notice of
investigation. Notice (Aug. 6, 2018).
Accordingly, at the time of the final ID,
the remaining participating respondents
were Feit, Lowe’s, and Satco
(collectively, ‘‘Respondents’’).
The Commission also terminated the
investigation based on a partial
withdrawal of the complaint with
respect to the entire ’328 patent, the
entire ’890 patent, certain claims of the
’399 patent, and certain claims of the
’554 patent. Order No. 44 (May 22,
2018), not reviewed Notice (June 11,
2018); Order No. 53 (June 28, 2018), not
reviewed Notice (July 24, 2018). At the
time of the final ID, Philips asserted that
Respondents infringed claims 7, 8, 17–
19, 34, and 35 of the ’399 patent and
claims 6 and 12 of the ’559 patent, and
that Lowe’s infringed claims 1, 2, 5–7,
and 12 of the ’554 patent. ID at 64, 84.
The ALJ also issued a summary
determination that Philips showed that
its eW Cove Powercore device satisfied
the technical prong of the domestic
industry requirement with respect to
claims 1, 2, 5–7 and 12 of the ’554
patent. Order No. 55 (Aug. 1, 2018), not
reviewed Notice (Aug. 17, 2018).
On December 19, 2018, the ALJ issued
the final ID finding a violation of section
337 with respect to the ’399 patent, but
no violation of section 337 with respect
to the ’554 and ’559 patents.
Specifically, the ALJ found that
Respondents’ products infringe claims
7, 8, and 17–19 of the ’399 patent; that
certain Lowe’s products infringed
claims 1, 2, 5, 6, 7, and 12 of the ’554
patent but were not shown to be
imported or sold by a named
respondent; that no products were
shown to infringe the ’559 patent; that
no asserted claim was shown to be
invalid; and that Philips showed a
domestic industry with respect to all
three remaining asserted patents.
On February 6, 2019, Philips and
Respondents each filed a petition for
review of the final ID. On February 14,
2019, Philips and Respondents
responded to each other’s petition.
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 following
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issues: (1) The ID’s infringement
findings for the ‘‘controller’’ limitation
of claims 7 and 8 of the ’399 patent, and
the ID’s infringement findings for the
‘‘adjustment circuit’’ limitation of
claims 17–19 of the ’399 patent; (2) the
ID’s findings whether products are
representative of other products with
respect to infringement findings for
claims 17–19 of the ’399 patent and for
claims 6 and 12 of the ’559 patent; and
(3) the ID’s findings on the economic
prong of the domestic industry
requirement. The Commission has
determined not to review any other
findings presented in the final ID.
The Commission has also determined
to extend the target date for the
completion of the investigation until
June 18, 2019.
In connection with its review, the
Commission is interested in briefing on
following issues:
1. In order to satisfy a means-plus-function
limitation, the patent owner must show ‘‘that
the relevant structure in the accused device
perform[s] the identical function recited in
the claim and be identical or equivalent to
the corresponding structure in the
specification.’’ Odetics, Inc. v. Storage Tech.
Corp., 185 F.3d 1259, 1267 (Fed. Cir. 1999).
Here, the ALJ construed ‘‘controller’’ in
claims 7 and 8 of the ’399 patent to be a
means-plus-function term with the functions
of (1) ‘‘receiv[ing] a power-related signal from
an alternating current (A.C.) power source
that provides signals other than a standard
A.C. line voltage’’; (2) ‘‘provid[ing] power to
the at least one LED based on the powerrelated signal’’; and (3) ‘‘variably control[ing]
at least one parameter of light generated by
the at least one LED in response to operation
of the user interface; and (4) ‘‘variably
control[ling] the at least one parameter of the
light based at least on the variable duty cycle
of the power-related signal.’’ Order No. 49 at
47 (Jun. 6, 2018). The ALJ also found that the
corresponding structure for these functions is
‘‘controllers 204A and 204B shown in
Figures 5 and 7.’’ Id. Please identify the
portions of record that show that each of the
accused products contain a structure that
performs identical functions and is identical
or equivalent to ‘‘controllers 204A and
204B,’’ or explain why the record does not
show that the accused products contain such
a structure. The parties are not to identify
evidence or present arguments that were not
previously presented to the ALJ.
2. Please identify the portions of the record
that show that each accused product satisfies
the limitation ‘‘an adjustment circuit to
variably control the at least one parameter of
light based on the varying power-related
signal’’ found in claims 17–19 of the ’399
patent, or explain why the record does not
show that the accused products satisfy this
limitation. The parties are not to identify
evidence or present arguments that were not
previously presented to the ALJ.
The parties are invited to brief only
the discrete issues described above,
with reference to the applicable law and
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evidentiary record. The parties are not
to brief other issues on review, which
are adequately presented in the parties’
existing filings.
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 a cease
and desist order that could result in the
respondent 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 a cease and
desist order 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. 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
Commission requests that the parties to
the investigation file written
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Sfmt 4703
16281
submissions on the issues identified in
this notice. The Commission encourages
parties to the investigation, interested
government agencies, and any other
interested parties 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, which issued
on December 19, 2018. The Commission
further requests that Philips submit
proposed remedial orders, state the date
when the ’399 patent expires, provide
the HTSUS numbers under which the
subject articles are imported, and
supply a list of known importers of the
subject article. The written submissions,
exclusive of any exhibits, must not
exceed 50 pages, and must be filed no
later than close of business on April 26,
2019. Reply submissions must not
exceed 25 pages, and must be filed no
later than the close of business on May
3, 2019. 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–1081’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.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
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Federal Register / Vol. 84, No. 75 / Thursday, April 18, 2019 / Notices
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 1, solely for cybersecurity
purposes. 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: April 12, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019–07741 Filed 4–17–19; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1088]
Certain Road Construction Machines
and Components Thereof;
Commission Determination To Reviewin-Part a Final Initial Determination
Finding a Section 337 Violation;
Schedule for Filing Written
Submissions; Extension of the Target
Date for Completion of the
Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to reviewin-part a final initial determination
(‘‘FID’’) of the presiding administrative
law judge (‘‘ALJ’’) finding a violation of
section 337 of the Tariff Act of 1930, as
amended. The Commission also extends
the target date for completion of this
investigation by five business days to
June 21, 2019.
FOR FURTHER INFORMATION CONTACT:
Houda Morad, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–4716. 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
jbell on DSK30RV082PROD with NOTICES
SUMMARY:
1 All contract personnel will sign appropriate
nondisclosure agreements.
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17:37 Apr 17, 2019
Jkt 247001
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 November 29, 2017, based on a
complaint, as supplemented, filed by
Caterpillar Inc. of Peoria, Illinois and
Caterpillar Paving Products, Inc. of
Minneapolis, Minnesota (collectively,
‘‘Complainants’’). See 82 FR 56625–26
(Nov. 29, 2017). The complaint, as
supplemented, alleges violations of
section 337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337), based upon
the importation into the United States,
the sale for importation, and the sale
within the United States after
importation of certain road construction
machines and components thereof by
reason of infringement of certain claims
of U.S. Patent Nos. 7,140,693 (‘‘the ’693
patent’’); 9,045,871 (‘‘the ’871 patent’’);
and 7,641,419 (‘‘the ’419 patent’’). See
id. The notice of investigation identifies
the following respondents: Wirtgen
GmbH of Windhagen, Germany; Joseph
Vo¨gele AG of Ludwigshafen, Germany;
Wirtgen Group Holding GmbH of
Windhagen, Germany; and Wirtgen
America, Inc. of Antioch, Tennessee
(collectively, ‘‘Respondents’’). See id.
The Office of Unfair Import
Investigations is not a party to this
investigation. See id.
The ALJ terminated the ’871 patent
from the investigation after finding the
asserted claims of that patent to be
invalid under 35 U.S.C. 101. See Order
No. 18 (May 24, 2018), currently under
review, Comm’n Notice (July 3, 2018).
The Commission terminated the ’419
patent from the investigation after
Complainants withdrew their
allegations with respect to that patent.
See Order No. 26 (July 5, 2018),
unreviewed, Comm’n Notice (July 25,
2018). The Commission also terminated
claim 25 of the ’693 patent from the
investigation after Complainants
withdrew their allegations as to that
claim. See Order No. 38 (Oct. 16, 2018),
unreviewed, Comm’n Notice (Nov. 9,
2018).
On February 14, 2019, the ALJ issued
the FID finding a violation of section
337 by certain of Respondents’ products
by reason of infringement of claim 19 of
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Fmt 4703
Sfmt 4703
the ’693 patent. In addition, the FID
finds all the asserted claims, except
claim 19 of the ’693 patent, to be invalid
as anticipated and/or obvious over the
prior art. Furthermore, the FID finds
that Complainants have satisfied the
domestic industry requirement with
respect to the ’693 patent. The ALJ also
issued a recommended determination
(‘‘RD’’) recommending that the
Commission issue a limited exclusion
order (‘‘LEO’’) against the infringing
products and a cease and desist order
(‘‘CDO’’) against each respondent. The
ALJ further recommended against
setting a bond during the period of
Presidential review.
On February 27, 2019, both
Complainants and Respondents filed
petitions for review of the FID. On
March 7, 2019, the parties filed
responses to each other’s petition. On
March 18, 2019, the parties also filed
statements on the public interest
pursuant to Commission Rule 210.50, 19
CFR 210.50. The Commission issued a
Federal Register notice requesting
public interest comments. See 83 FR
10836–37 (Mar. 22, 2019).
The Commission has determined to
review the FID in part. Specifically, the
Commission has determined to review
the FID’s findings with respect to: (1)
Claim construction of the term ‘‘a
retracted position relative to said frame’’
and any related findings including with
respect to infringement, invalidity, and
technical prong of the domestic industry
requirement; (2) infringement of the
asserted method claims, i.e., claims 17–
19, 24, 26–28, and 38 of the ’693 patent;
(3) invalidity of certain asserted claims
of the ’693 patent over Volpe SF–100 T4
in view of U.S. Patent No. 3,633,292
(Ulrich); (4) no invalidity of certain
asserted claims over U.S. Patent No.
3,843,274 (Gutman) alone or in
combination with other prior art; and (5)
no invalidity of claim 19 over Volpe SF–
100 T4 in view of Ulrich and WO 97/
42377 (Busley). The Commission has
determined not to review the remainder
of the FID. At this time, the Commission
does not request briefing from the
parties on the issues under review.
The Commission has also determined
to extend the target date by five business
days to June 21, 2019.
In addition, 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.
E:\FR\FM\18APN1.SGM
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]]>Agencies
[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Notices]
[Pages 16280-16282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07741]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1081]
Certain LED Light Devices, LED Power Supplies, and Components
Thereof; Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Schedule for Filing
Written Submissions on the Issues Under Review and on Remedy, the
Public Interest, and Bonding; Extension of the Target Date
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 a final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ''), finding a violation of section 337 of the Tariff Act of
1930. The Commission requests briefing from the parties on certain
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. The Commission has also
determined to extend the target date for the completion of the above-
captioned investigation to June 18, 2019.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW, Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its internet server (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 November 8, 2017, based on a complaint filed by Philips. 82 FR
51872. The complaint alleges violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the
United States, the sale for importation, and the sale after importation
within the United States after importation of certain LED devices, LED
power supplies, and components thereof by reason of infringement of one
or more claims of U.S. Patent Nos. 6,586,890 (``the '890 patent'');
7,038,399 (``the '399 patent''); 7,256,554 (``the '554 patent'');
7,262,559 (``the '559 patent''); and 8,070,328 (``the '328 patent'').
Id. The notice of investigation named the following respondents: Feit
Electric Company, Inc. of Pico Rivera, California, and Feit Electric
Company, Inc. (China) of Xiamen, China (together, ``Feit''); Edgewell
Personal Care Brands, LLC of Shelton, Connecticut (``Edgewell'');
Lowe's Companies, Inc. of Mooresville, North Carolina (``LCI'') and L G
Sourcing, Inc. of North Wilkesboro, North Carolina (``LGS'') (together,
``Lowe's''); MSi Lighting, Inc. of Boca Raton, Florida (``MSi
Lighting''); Satco Products, Inc. of Brentwood, New York (``Satco'');
Topaz Lighting Corp. of Holtsville, New York (``Topaz''); and Wangs
Alliance Corporation d/b/a/WAC Lighting Co. of Port Washington, New
York, and WAC Lighting (Shanghai) Co. Ltd. of Shanghai, China
(together, ``WAC''). Id. The Office of Unfair Import Investigations is
not a party to the investigation. Id.
The Commission subsequently terminated the investigation with
respect to Topaz and WAC based on settlement agreements. Order No. 9
(Jan. 8, 2018), not reviewed Notice (Jan. 16, 2018); Order No. 42 (May
2, 2018), not reviewed Notice (May 18, 2018). The Commission also found
MSi Lighting in default for failing to respond to the complaint and
notice of investigation. Order No. 20 (Jan. 31, 2018), not reviewed
Notice (February 26, 2018). Additionally, the Commission amended the
notice of investigation to remove respondent Edgewell, who was not
named in the complaint but was erroneously included in the notice of
investigation. Notice (Aug. 6, 2018). Accordingly, at the time of the
final ID, the remaining participating respondents were Feit, Lowe's,
and Satco (collectively, ``Respondents'').
The Commission also terminated the investigation based on a partial
withdrawal of the complaint with respect to the entire '328 patent, the
entire '890 patent, certain claims of the '399 patent, and certain
claims of the '554 patent. Order No. 44 (May 22, 2018), not reviewed
Notice (June 11, 2018); Order No. 53 (June 28, 2018), not reviewed
Notice (July 24, 2018). At the time of the final ID, Philips asserted
that Respondents infringed claims 7, 8, 17-19, 34, and 35 of the '399
patent and claims 6 and 12 of the '559 patent, and that Lowe's
infringed claims 1, 2, 5-7, and 12 of the '554 patent. ID at 64, 84.
The ALJ also issued a summary determination that Philips showed
that its eW Cove Powercore device satisfied the technical prong of the
domestic industry requirement with respect to claims 1, 2, 5-7 and 12
of the '554 patent. Order No. 55 (Aug. 1, 2018), not reviewed Notice
(Aug. 17, 2018).
On December 19, 2018, the ALJ issued the final ID finding a
violation of section 337 with respect to the '399 patent, but no
violation of section 337 with respect to the '554 and '559 patents.
Specifically, the ALJ found that Respondents' products infringe claims
7, 8, and 17-19 of the '399 patent; that certain Lowe's products
infringed claims 1, 2, 5, 6, 7, and 12 of the '554 patent but were not
shown to be imported or sold by a named respondent; that no products
were shown to infringe the '559 patent; that no asserted claim was
shown to be invalid; and that Philips showed a domestic industry with
respect to all three remaining asserted patents.
On February 6, 2019, Philips and Respondents each filed a petition
for review of the final ID. On February 14, 2019, Philips and
Respondents responded to each other's petition.
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 following
[[Page 16281]]
issues: (1) The ID's infringement findings for the ``controller''
limitation of claims 7 and 8 of the '399 patent, and the ID's
infringement findings for the ``adjustment circuit'' limitation of
claims 17-19 of the '399 patent; (2) the ID's findings whether products
are representative of other products with respect to infringement
findings for claims 17-19 of the '399 patent and for claims 6 and 12 of
the '559 patent; and (3) the ID's findings on the economic prong of the
domestic industry requirement. The Commission has determined not to
review any other findings presented in the final ID.
The Commission has also determined to extend the target date for
the completion of the investigation until June 18, 2019.
In connection with its review, the Commission is interested in
briefing on following issues:
1. In order to satisfy a means-plus-function limitation, the
patent owner must show ``that the relevant structure in the accused
device perform[s] the identical function recited in the claim and be
identical or equivalent to the corresponding structure in the
specification.'' Odetics, Inc. v. Storage Tech. Corp., 185 F.3d
1259, 1267 (Fed. Cir. 1999). Here, the ALJ construed ``controller''
in claims 7 and 8 of the '399 patent to be a means-plus-function
term with the functions of (1) ``receiv[ing] a power-related signal
from an alternating current (A.C.) power source that provides
signals other than a standard A.C. line voltage''; (2) ``provid[ing]
power to the at least one LED based on the power-related signal'';
and (3) ``variably control[ing] at least one parameter of light
generated by the at least one LED in response to operation of the
user interface; and (4) ``variably control[ling] the at least one
parameter of the light based at least on the variable duty cycle of
the power-related signal.'' Order No. 49 at 47 (Jun. 6, 2018). The
ALJ also found that the corresponding structure for these functions
is ``controllers 204A and 204B shown in Figures 5 and 7.'' Id.
Please identify the portions of record that show that each of the
accused products contain a structure that performs identical
functions and is identical or equivalent to ``controllers 204A and
204B,'' or explain why the record does not show that the accused
products contain such a structure. The parties are not to identify
evidence or present arguments that were not previously presented to
the ALJ.
2. Please identify the portions of the record that show that
each accused product satisfies the limitation ``an adjustment
circuit to variably control the at least one parameter of light
based on the varying power-related signal'' found in claims 17-19 of
the '399 patent, or explain why the record does not show that the
accused products satisfy this limitation. The parties are not to
identify evidence or present arguments that were not previously
presented to the ALJ.
The parties are invited to brief only the discrete issues described
above, with reference to the applicable law and evidentiary record. The
parties are not to brief other issues on review, which are adequately
presented in the parties' existing filings.
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 a cease and desist order that could result in the respondent
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 a cease and desist order 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. 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 Commission requests that the parties to
the investigation file written submissions on the issues identified in
this notice. The Commission encourages parties to the investigation,
interested government agencies, and any other interested parties 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, which issued on
December 19, 2018. The Commission further requests that Philips submit
proposed remedial orders, state the date when the '399 patent expires,
provide the HTSUS numbers under which the subject articles are
imported, and supply a list of known importers of the subject article.
The written submissions, exclusive of any exhibits, must not exceed 50
pages, and must be filed no later than close of business on April 26,
2019. Reply submissions must not exceed 25 pages, and must be filed no
later than the close of business on May 3, 2019. 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-1081'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.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
[[Page 16282]]
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 \1\, solely for cybersecurity purposes. All nonconfidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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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: April 12, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-07741 Filed 4-17-19; 8:45 am]
BILLING CODE 7020-02-P
