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]

Download as PDF 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. jbell on DSKJLSW7X2PROD with NOTICES 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)). VerDate Sep<11>2014 20:34 Feb 24, 2020 Jkt 250001 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)] PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 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] 10723 E:\FR\FM\25FEN1.SGM 25FEN1 jbell on DSKJLSW7X2PROD with NOTICES 10724 Federal Register / Vol. 85, No. 37 / Tuesday, February 25, 2020 / Notices 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 VerDate Sep<11>2014 20:34 Feb 24, 2020 Jkt 250001 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 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 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) E:\FR\FM\25FEN1.SGM 25FEN1 jbell on DSKJLSW7X2PROD with NOTICES Federal Register / Vol. 85, No. 37 / Tuesday, February 25, 2020 / Notices 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 VerDate Sep<11>2014 20:34 Feb 24, 2020 Jkt 250001 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. PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 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). E:\FR\FM\25FEN1.SGM 25FEN1 10726 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 jbell on DSKJLSW7X2PROD with NOTICES 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— VerDate Sep<11>2014 20:34 Feb 24, 2020 Jkt 250001 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 http:// 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: PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 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.

-----------------------------------------------------------------------

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