Certain Movable Barrier Operator Systems and Components Thereof; Commission Determination To Review a Final Initial Determination in Part Finding No Violation of Section 337 and Order No. 38 Granting Summary Determination That the Economic Prong Has Been Satisfied; Request for Written Submissions on the Issues Under Review and on Remedy, Public Interest, and Bonding, 10723-10726 [2020-03675]
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Federal Register / Vol. 85, No. 37 / Tuesday, February 25, 2020 / Notices
such as sign language interpretation,
should contact the Staff Director for the
Board.
Public Disclosure of Comments:
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Authority: 5 U.S.C. Appendix 2.
Alma Ripps,
Chief, Office of Policy.
[FR Doc. 2020–03658 Filed 2–24–20; 8:45 am]
BILLING CODE 4312–52–P
Issued: February 20, 2020.
Lisa Barton,
Secretary to the Commission.
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1118]
Certain Movable Barrier Operator
Systems and Components Thereof;
Commission Determination To Review
a Final Initial Determination in Part
Finding No Violation of Section 337
and Order No. 38 Granting Summary
Determination That the Economic
Prong Has Been Satisfied; Request for
Written Submissions on the Issues
Under Review and on Remedy, Public
Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
INTERNATIONAL TRADE
COMMISSION
Refined Brown Aluminum Oxide From
China
Determination
On the basis of the record 1 developed
in the subject five-year review, the
United States International Trade
Commission (‘‘Commission’’)
determines, pursuant to the Tariff Act of
1930 (‘‘the Act’’), that revocation of the
antidumping duty order on refined
brown aluminum oxide from China
would be likely to lead to continuation
or recurrence of material injury to an
industry in the United States within a
reasonably foreseeable time.
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Background
The Commission instituted this
review on September 3, 2019 (84 FR
46047) and determined on December 9,
2019 that it would conduct an expedited
review (85 FR 3416, January 21, 2020).
The Commission made this
determination pursuant to section
751(c) of the Act (19 U.S.C. 1675(c)). It
completed and filed its determination in
this review on February 20, 2020. The
views of the Commission are contained
in USITC Publication 5020 (February
2020), entitled Refined Brown
Aluminum Oxide from China:
Investigation No. 731–TA–1022 (Third
Review).
By order of the Commission.
1 The record is defined in sec. 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
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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 in
this case as well as Order No. 38
granting summary determination that
the economic prong of the domestic
industry requirement has been satisfied.
The Commission requests briefing from
the parties on the issues under review.
The Commission also requests written
submissions from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Carl
P. Bretscher, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–2382. 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 Information System
(‘‘EDIS’’) (https://edis.usitc.gov).
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal, telephone
(202) 205–1810.
SUMMARY:
[Investigation No. 731–TA–1022 (Third
Review)]
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On June
11, 2018, the Commission instituted the
present investigation based on a
complaint and supplement thereto filed
by The Chamberlain Group, Inc.
(‘‘Chamberlain’’) of Oak Brook, Illinois.
83 FR 27020–21 (June 11, 2018). The
complaint, as supplemented, alleges a
violation of 19 U.S.C. 1337, as amended
(‘‘Section 337’’), in the importation, sale
for importation, or sale in the United
States after importation of certain
movable barrier operator systems that
purportedly infringe one or more of the
asserted claims of Chamberlain’s U.S.
Patent Nos. 8,587,404 (‘‘the ’404
patent’’); 7,755,223 (‘‘the ’223 patent’’);
and 6,741,052 (‘‘the ’052 patent’’). Id.
The Commission has partially
terminated the investigation with
respect to certain patent claims
withdrawn by Chamberlain. See Order
No. 16 (Feb. 5, 2019), not rev’d, Comm’n
Notice (March 6, 2019); Order No. 27
(June 7, 2019), not rev’d, Comm’n Notice
(June 27, 2019); Order No. 31 (July 30,
2019), not rev’d, Comm’n Notice (Aug.
19, 2019); Order No. 32 (Sept. 27, 2019),
not rev’d, Comm’n Notice (Oct. 17,
2019). The only asserted claims still at
issue are claim 11 of the ’404 patent,
claims 1 and 21 of the ’223 patent, and
claim 1 of the ’052 patent.
The Commission’s notice of
investigation named Nortek Security &
Control, LLC of Carlsbad, CA; Nortek,
Inc. of Providence, RI; and GTO Access
Systems, LLC of Tallahassee, FL
(collectively, ‘‘Nortek’’) as respondents.
83 FR at 270721. The Office of Unfair
Import Investigations was not named as
a party to this investigation. See id.
The parties filed their Markman briefs
on November 13, 2018, and a revised
claim construction chart on February 8,
2019. On June 5, 2019, the presiding
administrative law judge (‘‘ALJ’’) issued
a Markman order (Order No. 25)
construing the claim terms in dispute.
On December 12, 2018, Chamberlain
filed a motion for summary
determination, pursuant to 19 CFR
210.18(a), that it has satisfied the
economic prong of the domestic
industry requirement. Nortek filed a
response opposing the motion on
February 11, 2019. The ALJ held a
teleconference with the parties on May
31, 2019. On June 6, 2019, the ALJ
issued a notice advising the parties that
the motion would be granted and a
formal written order would be issued
later. Order No. 26 (June 6, 2019).
The ALJ held a prehearing conference
and evidentiary hearing on the issues in
dispute on June 10–14, 2019. The
parties filed their initial post-hearing
briefs on July 11, 2019, and their reply
briefs on August 16, 2019. On October
SUPPLEMENTARY INFORMATION:
[FR Doc. 2020–03755 Filed 2–24–20; 8:45 am]
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11, 2019, the ALJ issued Order No. 35,
which extended the target date for
completion of this investigation by 27
business days to March 25, 2020, and
the due date for issuance of the final ID
to November 25, 2019. Order No. 35
(Oct. 1, 2019), not rev’d, Comm’n Notice
(Nov. 5, 2019).
On November 25, 2019, the ALJ
issued two IDs. The first (Order No. 38)
grants a motion for summary
determination that the economic prong
of the domestic industry requirement
has been satisfied, pursuant to 19 CFR
210.42(c). The second is the final Initial
Determination on Violation of Section
337 and Recommended Determination
on Remedy and Bond. The final ID finds
no violation of Section 337 because the
asserted claims of the Chamberlain
patents are either invalid or not
infringed, and, in the case of the ’223
patent, the technical prong of the
domestic industry requirement has not
been met. ID at 1, 286–87. Should the
Commission reverse these findings and
determine there is a violation of Section
337, the RD recommends issuing a
limited exclusion order and cease and
desist orders and imposing a bond in
the amount of 100 percent during the
period of Presidential review. RD at
277–86.
On December 4, 2019, Nortek filed a
petition for review and Chamberlain
filed a contingent petition for review of
Order No. 38 granting summary
determination that the economic prong
has been satisfied. On December 9,
2019, Chamberlain filed a petition for
review of the final ID, while Nortek filed
a contingent petition for review of the
final ID. On December 16, 2019, the
Commission issued a notice of its
determination to extend the deadline for
determining whether to review Order
No. 38 to January 24, 2019, to coincide
with the deadline for determining
whether to review the final ID. Comm’n
Notice (Dec. 16, 2019).
On December 18, 2019, the
Commission issued a notice soliciting
comments on the public interest from
the public. 84 FR 70998–99 (Dec. 26,
2019). No responses were received.
Similarly, no party filed a submission,
pursuant to 19 CFR 210.50(a)(4).
On January 23, 2020, the Commission
extended the deadline for determining
whether to review the final ID and
Order No. 38 to February 14, 2020.
Comm’n Notice (Jan. 23, 2020). The
Commission also extended the target
date to April 20, 2020. Id. On February
14, 2020, the Commission extended the
deadline for determining whether to
review the final ID and Order No. 38 to
February 19, 2020. Comm’n Notice (Feb.
14, 2020). The Commission left the
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20:34 Feb 24, 2020
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April 20, 2020, target date unchanged.
Id.
Having reviewed the record in this
investigation, including the final ID,
Order No. 38, Order No. 25 (Markman
order), and the parties’ petitions and
responses thereto, the Commission has
determined to review Order No. 38 and
the final ID in part, as follows.
With regard to the ’404 patent, the
Commission has determined to review
the ID’s claim constructions and
application of those constructions,
infringement and technical prong
findings, and patent-eligibility findings.
With regard to the ’223 patent, the
Commission has determined to review
the ID’s finding of no infringement,
particularly with respect to the
application of the term ‘‘operates’’ in
this context. The Commission has
similarly determined to review the ID’s
finding that the asserted domestic
industry products do not practice the
’223 patent claims.
With regard to the ’052 patent, the
Commission has determined to review
the ID’s findings with respect to direct
infringement, indirect infringement,
technical prong, and obviousness.
The Commission has further
determined to review Order No. 38
granting summary determination that
the economic prong has been satisfied
in this investigation.
The Commission has determined not
to review the remaining findings in the
ID.
The parties are asked to provide
additional briefing on the following
issues regarding the ’223 and ’052
patents. For each argument presented,
the parties’ submissions should include
whether and how that argument was
presented and preserved in the
proceedings before the ALJ, in
conformity with the ALJ’s Ground Rules
(Order No. 2), with citations to the
record:
A. With regard to the ’404 patent,
please discuss whether the ID correctly
found that claim 11 is not directed to an
abstract idea and that it lacks an
inventive concept. Does the claimed
system use off-the-shelf technology or a
specific implementation of a
communication scheme? Please also
discuss SIPCO, LLC v. Emerson Elec.
Co., 939 F.3d 1301, 1312 (Fed. Cir.
2019) and Certain Road Construction
Machines and Components Thereof,
Inv. No. 337–TA–1088, Comm’n Op.
(June 27, 2019).
B. With regard to claims 1 and 21 of
the ’223 patent, please explain how a
person skilled in the art would apply
the plain and ordinary meaning of the
term ‘‘operates’’ in the context of this
patent and products at issue, and
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whether in this context ‘‘the obstacle
detector operates using a second energy
usage . . .’’ if the detector can be
awoken to perform a function in the
higher energy ‘‘first mode of energy
usage.’’
C. With regard to indirect
infringement, please explain whether
there is a preponderance of the evidence
that Nortek induces indirect
infringement of the ’052 patent, with
particular attention to evidence showing
the relevant products or components
that Nortek imports into the United
States (e.g., gate operators, garage door
operators, or controllers); whether or to
what extent those imported products or
components are assembled into final
accused products; where final assembly
of the accused products occurs (inside
or outside the United States); which
party or parties (e.g., Nortek, its
customers, etc.) perform such final
assembly; and any other matters the
parties deem relevant to review of
indirect infringement.
D. With regard to the ’052 patent,
please explain whether the evidence
supports finding a motivation to use a
potentiometer or other means to
manually adjust force thresholds that
were previously automatically
determined, or whether the prior art
teaches away from such a combination,
paying particular attention to the
Hormann reference (U.S. Patent No.
4,625,291), the Schindler reference (U.S.
Patent No. 4,638,433), technology and
background of potentiometers, and any
other relevant evidence that was timely
raised in this investigation.
E. With regard to Order No. 38,
explain whether there is a
preponderance of evidence that
Chamberlain has satisfied the economic
prong requirement for the ’404 patent,
’223 patent or ’052 patent—each patent
standing alone—as a matter of law. In
answering this question be sure to
address the contextual analysis required
by Commission precedent. See, e.g.,
Certain Carburetors and Products
Containing Such Carburetors, Inv. No.
337–TA–1123, Comm’n Op. at 17–19
(Oct. 28, 2019).
The parties are requested to brief only
the discrete issues identified above,
with reference to the applicable law and
evidentiary record. The parties are not
to brief any other issues on review,
which have already been adequately
presented in the parties’ previous
filings.
In connection with the final
disposition of this investigation, the
Commission may issue: (1) An
exclusion order that could result in the
exclusion of the subject articles from
entry into the United States, and/or (2)
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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, Comm’n Op. at 7–10
(December 1994). In addition, if a party
seeks issuance of any cease and desist
orders, the written submissions should
address that request in the context of
recent Commission opinions, including
those in Certain Arrowheads with
Deploying Blades and Components
Thereof and Packaging Therefor, Inv.
No. 337–TA–977, Comm’n Op. (Apr. 28,
2017) and Certain Electric Skin Care
Devices, Brushes and Chargers Therefor,
and Kits Containing the Same, Inv. No.
337–TA–959, Comm’n Op. (Feb. 13,
2017). Specifically, if Complainant
seeks a cease and desist order against a
respondent, the written submissions
should respond to the following
requests:
1. Please identify with citations to the
record any information regarding
commercially significant inventory in
the United States as to each respondent
against whom a cease and desist order
is sought. If Complainant also relies on
other significant domestic operations
that could undercut the remedy
provided by an exclusion order, please
identify with citations to the record
such information as to each respondent
against whom a cease and desist order
is sought.
2. In relation to the infringing
products, please identify any
information in the record, including
allegations in the pleadings, that
addresses the existence of any domestic
inventory, any domestic operations, or
any sales-related activity directed at the
United States for each respondent
against whom a cease and desist order
is sought.
3. Please discuss any other basis upon
which the Commission could enter a
cease and desist order.
The statute requires the Commission
to consider the effects of any remedy
upon the public interest. The public
interest factors the Commission will
consider include the effect that an
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20:34 Feb 24, 2020
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exclusion order and/or 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,
disapprove, or take no action on the
Commission’s determination. 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
this investigation are requested to file
written submissions on the issues
identified in this Notice. In addition,
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 initial submissions
should include views on the
recommended determination by the ALJ
on the issues of remedy and bonding.
Complainant is requested to identify the
form of remedy sought and to submit
proposed remedial orders for the
Commission’s consideration in its initial
written submission. Complainant is also
requested to state the date that the
patents expire and the HTSUS numbers
under which the accused products are
imported. Complainant is further
requested to supply the names of known
importers of the Respondents’ products
at issue in this investigation.
Complainant is additionally requested
to identify and explain, from the record,
articles that are ‘‘components of’’ the
subject products, and thus covered by
the proposed remedial orders, if
imported separately from the subject
products.
The parties’ written submissions and
proposed remedial orders must be filed
no later than the close of business on
March 4, 2020. Reply submissions must
be filed no later than the close of
business on March 11, 2020. Opening
submissions are limited to 40 pages.
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10725
Reply submissions are limited to 30
pages. Third-party submissions should
be filed no later than the close of
business on March 4, 2020, and may not
exceed 10 pages, not including any
attachments. No further submissions on
any of 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 deadline
stated above and submit eight (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–1118’’) in a prominent place on
the cover page and/or 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
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).
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Federal Register / Vol. 85, No. 37 / Tuesday, February 25, 2020 / Notices
By order of the Commission.
Issued: February 19, 2020.
Lisa Barton,
Secretary to the Commission.
ENRD, P.O. Box 7611, Washington, DC
20044–7611.
Please enclose a check or money order
for $13.00 (25 cents per page
reproduction cost) payable to the United
States Treasury.
[FR Doc. 2020–03675 Filed 2–24–20; 8:45 am]
BILLING CODE 7020–02–P
Henry Friedman,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed
Consent Decree Under The Clean
Water Act
[FR Doc. 2020–03740 Filed 2–24–20; 8:45 am]
BILLING CODE 4410–15–P
On February 19, 2020, the Department
of Justice lodged a proposed consent
decree with the United States District
Court for the Eastern District of New
York in the lawsuit entitled United
States of America and State of New
York v. Village of Northport, Civil
Action No. 20–CV–890.
In this action the United States seeks,
as provided under the Clean Water Act,
33 U.S.C. 1251, et seq., civil penalties
and injunctive relief from the Village of
Northport (Northport) in connection
with its failure to comply with the
municipal separate storm sewer system
permit and EPA administrative orders.
The proposed Consent Judgment
resolves the United States’ claims and
requires Northport to pay $125,000 and
imposes injunctive relief.
The publication of this notice opens
a period for public comment on the
proposed consent decree. Comments
should be addressed to the Assistant
Attorney General, Environment and
Natural Resources Division, and should
refer to United States of America and
State of New York v. Village of
Northport, D.J. Ref. No. 90–5–1–1–
11187. All comments must be submitted
no later than thirty (30) days after the
publication date of this notice.
Comments may be submitted either by
email or by mail:
To submit
comments:
Send them to:
By email .......
pubcomment-ees.enrd@
usdoj.gov
Assistant Attorney General,
U.S. DOJ—ENRD, P.O.
Box 7611, Washington,
D.C. 20044–7611
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By mail .........
During the public comment period,
the consent decree may be examined
and downloaded at this Justice
Department website: https://
www.justice.gov/enrd/consent-decrees.
We will provide a paper copy of the
consent decree upon written request
and payment of reproduction costs.
Please mail your request and payment
to: Consent Decree Library, U.S. DOJ—
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20:34 Feb 24, 2020
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DEPARTMENT OF LABOR
Office of the Secretary
Agency Information Collection
Activities; Submission for OMB
Review; Comment Request; Personal
Protective Equipment for General
Industry
Notice of availability; request
for comments.
ACTION:
The Department of Labor
(DOL) is submitting the Occupational
Safety and Health Administration
(OSHA) sponsored information
collection request (ICR) titled, ‘‘Personal
Protective Equipment for General
Industry,’’ to the Office of Management
and Budget (OMB) for review and
approval for continued use, without
change, in accordance with the
Paperwork Reduction Act of 1995
(PRA). Public comments on the ICR are
invited.
DATES: The OMB will consider all
written comments that agency receives
on or before March 26, 2020.
ADDRESSES: A copy of this ICR with
applicable supporting documentation;
including a description of the likely
respondents, proposed frequency of
response, and estimated total burden
may be obtained free of charge from the
RegInfo.gov website at https://
www.reginfo.gov/public/do/
PRAViewICR?ref_nbr=201911–1218–001
(this link will only become active on the
day following publication of this notice)
or by contacting Frederick Licari by
telephone at 202–693–8073, TTY 202–
693–8064, (these are not toll-free
numbers) or by email at DOL_PRA_
PUBLIC@dol.gov.
Submit comments about this request
by mail to the Office of Information and
Regulatory Affairs, Attn: OMB Desk
Officer for DOL–OSHA, Office of
Management and Budget, Room 10235,
725 17th Street NW, Washington, DC
20503; by Fax: 202–395–5806 (this is
not a toll-free number); or by email:
OIRA_submission@omb.eop.gov.
SUMMARY:
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Commenters are encouraged, but not
required, to send a courtesy copy of any
comments by mail or courier to the U.S.
Department of Labor-OASAM, Office of
the Chief Information Officer, Attn:
Departmental Information Compliance
Management Program, Room N1301,
200 Constitution Avenue NW,
Washington, DC 20210; or by email:
DOL_PRA_PUBLIC@dol.gov.
FOR FURTHER INFORMATION CONTACT:
Frederick Licari Frederick Licari by
telephone at 202–693–8073, TTY 202–
693–8064, (these are not toll-free
numbers) or by email at DOL_PRA_
PUBLIC@dol.gov.
SUPPLEMENTARY INFORMATION: This ICR
seeks to extend PRA authority for the
Personal Protective Equipment for
General Industry (29 CFR part 1910,
subpart1) information collection.
Subpart I requires that employers
perform hazard assessments of the
workplace to determine if personal
protective equipment (PPE) is necessary
and to communicate PPE selection
decisions to affected workers.
Employers must document that the
hazard assessment has been conducted.
This information collection is subject
to the PRA. A Federal agency generally
cannot conduct or sponsor a collection
of information, and the public is
generally not required to respond to an
information collection, unless the OMB
under the PRA approves it and displays
a currently valid OMB Control Number.
In addition, notwithstanding any other
provisions of law, no person shall
generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. The DOL obtains
OMB approval for this information
collection under Control Number 1218–
0205.
OMB authorization for an ICR cannot
be for more than three (3) years without
renewal, and the current approval for
this collection is scheduled to expire on
February 29, 2020. The DOL seeks to
extend PRA authorization for this
information collection for three (3) more
years, without any change to existing
requirements. The DOL notes that
existing information collection
requirements submitted to the OMB
receive a month-to-month extension
while they undergo review. For
additional substantive information
about this ICR, see the related notice
published in the Federal Register on
September 9, 2019 (84 FR 47325).
Interested parties are encouraged to
send comments to the OMB, Office of
Information and Regulatory Affairs at
the address shown in the ADDRESSES
E:\FR\FM\25FEN1.SGM
25FEN1
]]>Agencies
[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Notices]
[Pages 10723-10726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03675]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1118]
Certain Movable Barrier Operator Systems and Components Thereof;
Commission Determination To Review a Final Initial Determination in
Part Finding No Violation of Section 337 and Order No. 38 Granting
Summary Determination That the Economic Prong Has Been Satisfied;
Request for Written Submissions on the Issues Under Review and on
Remedy, Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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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 in this case as well as
Order No. 38 granting summary determination that the economic prong of
the domestic industry requirement has been satisfied. The Commission
requests briefing from the parties on the issues under review. The
Commission also requests written submissions from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2382. 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 Information System (``EDIS'')
(https://edis.usitc.gov). Hearing-impaired persons are advised that
information on this matter can be obtained by contacting the
Commission's TDD terminal, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On June 11, 2018, the Commission instituted
the present investigation based on a complaint and supplement thereto
filed by The Chamberlain Group, Inc. (``Chamberlain'') of Oak Brook,
Illinois. 83 FR 27020-21 (June 11, 2018). The complaint, as
supplemented, alleges a violation of 19 U.S.C. 1337, as amended
(``Section 337''), in the importation, sale for importation, or sale in
the United States after importation of certain movable barrier operator
systems that purportedly infringe one or more of the asserted claims of
Chamberlain's U.S. Patent Nos. 8,587,404 (``the '404 patent'');
7,755,223 (``the '223 patent''); and 6,741,052 (``the '052 patent'').
Id. The Commission has partially terminated the investigation with
respect to certain patent claims withdrawn by Chamberlain. See Order
No. 16 (Feb. 5, 2019), not rev'd, Comm'n Notice (March 6, 2019); Order
No. 27 (June 7, 2019), not rev'd, Comm'n Notice (June 27, 2019); Order
No. 31 (July 30, 2019), not rev'd, Comm'n Notice (Aug. 19, 2019); Order
No. 32 (Sept. 27, 2019), not rev'd, Comm'n Notice (Oct. 17, 2019). The
only asserted claims still at issue are claim 11 of the '404 patent,
claims 1 and 21 of the '223 patent, and claim 1 of the '052 patent.
The Commission's notice of investigation named Nortek Security &
Control, LLC of Carlsbad, CA; Nortek, Inc. of Providence, RI; and GTO
Access Systems, LLC of Tallahassee, FL (collectively, ``Nortek'') as
respondents. 83 FR at 270721. The Office of Unfair Import
Investigations was not named as a party to this investigation. See id.
The parties filed their Markman briefs on November 13, 2018, and a
revised claim construction chart on February 8, 2019. On June 5, 2019,
the presiding administrative law judge (``ALJ'') issued a Markman order
(Order No. 25) construing the claim terms in dispute.
On December 12, 2018, Chamberlain filed a motion for summary
determination, pursuant to 19 CFR 210.18(a), that it has satisfied the
economic prong of the domestic industry requirement. Nortek filed a
response opposing the motion on February 11, 2019. The ALJ held a
teleconference with the parties on May 31, 2019. On June 6, 2019, the
ALJ issued a notice advising the parties that the motion would be
granted and a formal written order would be issued later. Order No. 26
(June 6, 2019).
The ALJ held a prehearing conference and evidentiary hearing on the
issues in dispute on June 10-14, 2019. The parties filed their initial
post-hearing briefs on July 11, 2019, and their reply briefs on August
16, 2019. On October
[[Page 10724]]
11, 2019, the ALJ issued Order No. 35, which extended the target date
for completion of this investigation by 27 business days to March 25,
2020, and the due date for issuance of the final ID to November 25,
2019. Order No. 35 (Oct. 1, 2019), not rev'd, Comm'n Notice (Nov. 5,
2019).
On November 25, 2019, the ALJ issued two IDs. The first (Order No.
38) grants a motion for summary determination that the economic prong
of the domestic industry requirement has been satisfied, pursuant to 19
CFR 210.42(c). The second is the final Initial Determination on
Violation of Section 337 and Recommended Determination on Remedy and
Bond. The final ID finds no violation of Section 337 because the
asserted claims of the Chamberlain patents are either invalid or not
infringed, and, in the case of the '223 patent, the technical prong of
the domestic industry requirement has not been met. ID at 1, 286-87.
Should the Commission reverse these findings and determine there is a
violation of Section 337, the RD recommends issuing a limited exclusion
order and cease and desist orders and imposing a bond in the amount of
100 percent during the period of Presidential review. RD at 277-86.
On December 4, 2019, Nortek filed a petition for review and
Chamberlain filed a contingent petition for review of Order No. 38
granting summary determination that the economic prong has been
satisfied. On December 9, 2019, Chamberlain filed a petition for review
of the final ID, while Nortek filed a contingent petition for review of
the final ID. On December 16, 2019, the Commission issued a notice of
its determination to extend the deadline for determining whether to
review Order No. 38 to January 24, 2019, to coincide with the deadline
for determining whether to review the final ID. Comm'n Notice (Dec. 16,
2019).
On December 18, 2019, the Commission issued a notice soliciting
comments on the public interest from the public. 84 FR 70998-99 (Dec.
26, 2019). No responses were received. Similarly, no party filed a
submission, pursuant to 19 CFR 210.50(a)(4).
On January 23, 2020, the Commission extended the deadline for
determining whether to review the final ID and Order No. 38 to February
14, 2020. Comm'n Notice (Jan. 23, 2020). The Commission also extended
the target date to April 20, 2020. Id. On February 14, 2020, the
Commission extended the deadline for determining whether to review the
final ID and Order No. 38 to February 19, 2020. Comm'n Notice (Feb. 14,
2020). The Commission left the April 20, 2020, target date unchanged.
Id.
Having reviewed the record in this investigation, including the
final ID, Order No. 38, Order No. 25 (Markman order), and the parties'
petitions and responses thereto, the Commission has determined to
review Order No. 38 and the final ID in part, as follows.
With regard to the '404 patent, the Commission has determined to
review the ID's claim constructions and application of those
constructions, infringement and technical prong findings, and patent-
eligibility findings.
With regard to the '223 patent, the Commission has determined to
review the ID's finding of no infringement, particularly with respect
to the application of the term ``operates'' in this context. The
Commission has similarly determined to review the ID's finding that the
asserted domestic industry products do not practice the '223 patent
claims.
With regard to the '052 patent, the Commission has determined to
review the ID's findings with respect to direct infringement, indirect
infringement, technical prong, and obviousness.
The Commission has further determined to review Order No. 38
granting summary determination that the economic prong has been
satisfied in this investigation.
The Commission has determined not to review the remaining findings
in the ID.
The parties are asked to provide additional briefing on the
following issues regarding the '223 and '052 patents. For each argument
presented, the parties' submissions should include whether and how that
argument was presented and preserved in the proceedings before the ALJ,
in conformity with the ALJ's Ground Rules (Order No. 2), with citations
to the record:
A. With regard to the '404 patent, please discuss whether the ID
correctly found that claim 11 is not directed to an abstract idea and
that it lacks an inventive concept. Does the claimed system use off-
the-shelf technology or a specific implementation of a communication
scheme? Please also discuss SIPCO, LLC v. Emerson Elec. Co., 939 F.3d
1301, 1312 (Fed. Cir. 2019) and Certain Road Construction Machines and
Components Thereof, Inv. No. 337-TA-1088, Comm'n Op. (June 27, 2019).
B. With regard to claims 1 and 21 of the '223 patent, please
explain how a person skilled in the art would apply the plain and
ordinary meaning of the term ``operates'' in the context of this patent
and products at issue, and whether in this context ``the obstacle
detector operates using a second energy usage . . .'' if the detector
can be awoken to perform a function in the higher energy ``first mode
of energy usage.''
C. With regard to indirect infringement, please explain whether
there is a preponderance of the evidence that Nortek induces indirect
infringement of the '052 patent, with particular attention to evidence
showing the relevant products or components that Nortek imports into
the United States (e.g., gate operators, garage door operators, or
controllers); whether or to what extent those imported products or
components are assembled into final accused products; where final
assembly of the accused products occurs (inside or outside the United
States); which party or parties (e.g., Nortek, its customers, etc.)
perform such final assembly; and any other matters the parties deem
relevant to review of indirect infringement.
D. With regard to the '052 patent, please explain whether the
evidence supports finding a motivation to use a potentiometer or other
means to manually adjust force thresholds that were previously
automatically determined, or whether the prior art teaches away from
such a combination, paying particular attention to the Hormann
reference (U.S. Patent No. 4,625,291), the Schindler reference (U.S.
Patent No. 4,638,433), technology and background of potentiometers, and
any other relevant evidence that was timely raised in this
investigation.
E. With regard to Order No. 38, explain whether there is a
preponderance of evidence that Chamberlain has satisfied the economic
prong requirement for the '404 patent, '223 patent or '052 patent--each
patent standing alone--as a matter of law. In answering this question
be sure to address the contextual analysis required by Commission
precedent. See, e.g., Certain Carburetors and Products Containing Such
Carburetors, Inv. No. 337-TA-1123, Comm'n Op. at 17-19 (Oct. 28, 2019).
The parties are requested to brief only the discrete issues
identified above, with reference to the applicable law and evidentiary
record. The parties are not to brief any other issues on review, which
have already been adequately presented in the parties' previous
filings.
In connection with the final disposition of this investigation, the
Commission may issue: (1) An exclusion order that could result in the
exclusion of the subject articles from entry into the United States,
and/or (2)
[[Page 10725]]
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, Comm'n Op. at 7-10 (December
1994). In addition, if a party seeks issuance of any cease and desist
orders, the written submissions should address that request in the
context of recent Commission opinions, including those in Certain
Arrowheads with Deploying Blades and Components Thereof and Packaging
Therefor, Inv. No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and Certain
Electric Skin Care Devices, Brushes and Chargers Therefor, and Kits
Containing the Same, Inv. No. 337-TA-959, Comm'n Op. (Feb. 13, 2017).
Specifically, if Complainant seeks a cease and desist order against a
respondent, the written submissions should respond to the following
requests:
1. Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainant also relies on other significant domestic operations that
could undercut the remedy provided by an exclusion order, please
identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
2. In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
3. Please discuss any other basis upon which the Commission could
enter a cease and desist order.
The statute requires the Commission to consider the effects of any
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or 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,
disapprove, or take no action on the Commission's determination. 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 this investigation are
requested to file written submissions on the issues identified in this
Notice. In addition, 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 initial submissions should include views on the
recommended determination by the ALJ on the issues of remedy and
bonding. Complainant is requested to identify the form of remedy sought
and to submit proposed remedial orders for the Commission's
consideration in its initial written submission. Complainant is also
requested to state the date that the patents expire and the HTSUS
numbers under which the accused products are imported. Complainant is
further requested to supply the names of known importers of the
Respondents' products at issue in this investigation. Complainant is
additionally requested to identify and explain, from the record,
articles that are ``components of'' the subject products, and thus
covered by the proposed remedial orders, if imported separately from
the subject products.
The parties' written submissions and proposed remedial orders must
be filed no later than the close of business on March 4, 2020. Reply
submissions must be filed no later than the close of business on March
11, 2020. Opening submissions are limited to 40 pages. Reply
submissions are limited to 30 pages. Third-party submissions should be
filed no later than the close of business on March 4, 2020, and may not
exceed 10 pages, not including any attachments. No further submissions
on any of 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 deadline stated above and submit eight
(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-1118'') in a prominent place on
the cover page and/or 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 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).
[[Page 10726]]
By order of the Commission.
Issued: February 19, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-03675 Filed 2-24-20; 8:45 am]
BILLING CODE 7020-02-P
