Certain Movable Barrier Operator Systems and Components Thereof; Notice of a Commission Determination To Review a Remand Initial Determination; Request for Written Submissions, 57249-57251 [2020-20279]
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secondary meaning prior to each Active
Respondents’ alleged first use of the
mark. The Commission has determined
that there has been no violation by the
Active Respondents because, although
Converse has established that its CMT
had acquired secondary meaning prior
to each of those Respondents’ alleged
first uses of the mark (which predate
registration of the ’753 trademark),
Converse has failed to show either a
likelihood of confusion or injury to its
domestic industry, or both, with respect
to those Respondents’ accused products.
The Commission has also determined
that it may assess the validity of the ’753
trademark and affirms with
modifications the RID’s finding that the
’753 trademark has not been proven
invalid. The Commission further
determines that Converse has proven a
violation of section 337 by substantial,
reliable, and probative evidence with
respect to Defaulting Respondents
Foreversun and Dioniso (whose
infringements postdate registration of
the ’753 trademark), but not with
respect to Defaulting Respondents
Xinya, Wenzhou, and Ouhai.
Accordingly, the Commission has
determined that there is a violation of
section 337 with respect to the ’753
trademark.
Having found a violation of section
337 as to the ’753 trademark, the
Commission has determined that the
appropriate form of relief is: (1) A GEO
prohibiting the unlicensed entry of
footwear products that infringe the ’753
trademark; and (2) CDOs prohibiting
Defaulting Respondents Dioniso and
Foreversun from further importing,
selling, and distributing infringing
products in the United States. The
Commission further determined that the
public interest factors enumerated in
section 337(d)(1) and (f)(1) do not
preclude issuance of the remedial
orders. Finally, the Commission
determined that a bond in the amount
of 100 percent of the entered value (per
pair) of the infringing products is
required to permit temporary
importation during the period of
Presidential review (19 U.S.C. 1337(j)).
The Commission has also issued an
opinion explaining the basis for the
Commission’s action. The Commission’s
orders and opinion were delivered to
the President and to the United States
Trade Representative on the day of their
issuance. The investigation is hereby
terminated.
While temporary remote operating
procedures are in place in response to
COVID–19, the Office of the Secretary is
not able to serve parties that have not
retained counsel or otherwise provided
a point of contact for electronic service.
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Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR
201.16(a), 210.7(a)(1)), the Commission
orders that the Complainant complete
service for any party without a method
of electronic service noted on the
attached Certificate of Service and shall
file proof of service on the Electronic
Document Information System (EDIS).
The Commission vote for this
determination took place on September
9, 2020.
The authority for the Commission’s
determination is contained in section
337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337, and in Part
210 of the Commission’s Rules of
Practice and Procedure, 19 CFR part
210.
By order of the Commission.
Issued: September 9, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–20278 Filed 9–14–20; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1118]
Certain Movable Barrier Operator
Systems and Components Thereof;
Notice of a Commission Determination
To Review a Remand Initial
Determination; Request for Written
Submissions
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (the ‘‘Commission’’) has
determined to: Review a Remand Initial
Determination (‘‘Remand ID’’) finding
that the complainant The Chamberlain
Group, Inc. (‘‘CGI’’) has satisfied the
economic prong of the domestic
industry requirement with respect to
U.S. Patent No. 7,755,223 (‘‘the ’223
patent’’); and request supplemental
briefing on remedy, the public interest,
and bonding for the limited purpose of
updating submissions submitted in
March 2020.
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 may be viewed on the
Commission’s electronic docket system
(‘‘EDIS’’) at https://edis.usitc.gov. For
help accessing EDIS, please email
SUMMARY:
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57249
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.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: The
Commission instituted this investigation
on June 11, 2018, based on a complaint,
as supplemented, filed by CGI of Oak
Brook, Illinois. 83 FR 27020–21 (June
11, 2018). The complaint alleges a
violation of section 337 of the Tariff Act
of 1930, as amended, 19 U.S.C. 1337
(‘‘Section 337’’), in the importation, sale
for importation, or sale in the United
States after importation of certain
movable barrier operator (‘‘MBO’’)
systems that purportedly infringe one or
more of the asserted claims of the ’223
patent and U.S. Patent Nos. 8,587,404
(‘‘the ’404 patent’’) and 6,741,052 (‘‘the
’052 patent’’). Id. 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.
Id. The Office of Unfair Import
Investigations was not named as a party
to this investigation. See id.
The Commission subsequently
terminated the investigation with
respect to certain patent claims
withdrawn by CGI. See Order No. 16
(Feb. 5, 2019), unreviewed by Comm’n
Notice (March 6, 2019); Order No. 27
(June 7, 2019), unreviewed by Comm’n
Notice (June 27, 2019); Order No. 31
(July 30, 2019), unreviewed by Comm’n
Notice (Aug. 19, 2019); Order No. 32
(Sept. 27, 2019), unreviewed by Comm’n
Notice (Oct. 17, 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, CGI filed a
motion for summary determination that
it satisfied the economic prong of the
domestic industry requirement. Nortek
opposed the motion. 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 an evidentiary hearing
on the issues in dispute on June 10–14,
2019.
On November 25, 2019, ALJ issued
Order No. 38, finding no issue of
material fact that CGI’s investments in
labor and capital relating to its domestic
industry products were ‘‘significant’’
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and that CGI has satisfied the economic
prong of the domestic industry
requirement pursuant to Section
337(a)(3)(B) (19 U.S.C. 1337(a)(3)(B)).
Order No. 38 (Nov. 25, 2019). Order No.
38 also finds that genuine issues of
material fact precluded entry of
summary determination with respect to
CGI’s investments in plant and
equipment, under Section 337(a)(3)(A)
(19 U.S.C. 1337(a)(3)(A)). Id.
On the same date, the ALJ issued a
final initial determination (‘‘Final ID’’),
finding no violation of Section 337
because the asserted claims of the ’223
and ’404 patents, if valid, are not
infringed and the asserted claim of the
’052 patent is invalid, even if infringed.
Initial Determination on Violation of
Section 337 and Recommended
Determination on Remedy and Bond
(Nov. 25, 2019).
On February 19, 2020, the
Commission issued a notice of its
determination to review Order No. 38
and to partially review the Final ID with
respect to certain issues relating to each
of the three asserted patents. 85 FR
10723–26 (Feb. 25, 2020). The
Commission also directed the parties to
brief its questions on violation and
requested briefing from the parties, the
public, and any interested government
entities concerning remedy, the public
interest, and bonding. Id.
On April 22, 2020, the Commission
issued a determination finding no
violation with respect to the ’404 or ’052
patents. Comm’n Notice at 3 (April 22,
2020). The Commission also vacated
Order No. 38 and remanded the
economic prong issue with respect to
the ’223 patent. Id.; Order Vacating and
Remanding Order No. 38 (April 22,
2020) (‘‘Remand Order’’).
On May 15, 2020, the ALJ issued
Order No. 39, seeking additional
information from the parties in light of
the Commission’s Remand Order. Order
No. 39 (May 15, 2020). On July 10, 2020,
the ALJ issued the subject Remand ID,
finding that CGI has made significant
investments, both quantitatively and
qualitatively, in plant and equipment
and labor and capital, pursuant to
Section 337(a)(3)(A) and (B) (19 U.S.C.
1337(a)(3)(A)–(B)), respectively.
Remand Initial Determination (July 10,
2020). The Remand ID concludes that
CGI has satisfied the economic prong of
the domestic industry requirement in
relation to the ’223 patent. Id.
On July 20, 2020, Nortek filed a
petition for review of the RID. CGI filed
its opposition to Nortek’s petition for
review on July 27, 2020.
Having reviewed the Remand ID, the
parties’ submissions, and the record in
this investigation, the Commission has
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determined to review the Remand ID
and requests the parties to brief the
following questions:
(1) With respect to CGI’s garage door
opener (‘‘GDO’’) products that
purportedly practice the ’223 patent
(‘‘ ’223 DI products’’), provide the
percentage of CGI’s sales of its ’223 DI
products in the United States compared
to its total, worldwide sales of such
products. Explain whether this
percentage substantially differs from the
percentage of CGI’s sales of all GDO
products in the United States compared
to its worldwide sales of all GDO
products or the percentage of CGI’s sales
of all products in the United States
compared to its worldwide sales of all
products, as provided by CGI. If so,
explain whether using the percentage of
CGI’s sales of ’223 DI products in the
United States, compared to its total
worldwide sales of such products,
would materially affect calculation of its
relevant domestic industry investments
or foreign investments in plant and
equipment or labor and capital, and
how this may affect the economic prong
analysis.
(2) Explain whether CGI’s calculations
of its foreign expenditures for plant and
equipment or labor and capital relating
to its ’223 DI products include its
foreign manufacturing expenditures. If
not, please indicate what information is
in the record regarding its foreign
manufacturing expenses, and provide, if
possible, calculations comparing
domestic expenditures to total
expenditures (that include the foreign
manufacturing expenses). Based on
these calculations, discuss how
including CGI’s foreign manufacturing
expenditures affects assessment of the
significance of its relevant domestic
industry investments in either plant and
equipment or labor and capital.
(3) When were the calculations and
analyses that the Commission has
requested in questions (1) and (2)
performed? Who performed them?
(4) Did Nortek previously present any
calculations or analyses using CGI’s
worldwide sales?
(5) Please provide further detail (as
available in the record) regarding the
activities performed at CGI’s Technical
Support Center in Tucson. Explain, with
reference to relevant Commission
precedent, the extent to which the
Commission should consider such
expenses in its assessment of the
economic prong. Also explain whether
these activities are the sort that a mere
importer would need to carry out in the
United States (as opposed to in another
country).
(6) Please discuss the similarities and
differences between the allocation
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methodologies Chamberlain used in this
investigation and allocation
methodology used in the 1016
investigation, Certain Access Control
Systems and Components Thereof, Inv.
No. 337–TA–1016.
(7) In the 1016 investigation, did the
presiding ALJ or the Commission
require Chamberlain to evaluate its
worldwide sales or foreign
manufacturing when it was concluded
that Chamberlain satisfied the economic
prong? See generally 1016 Initial
Determination at 222–293 (Oct. 23,
2017); Comm’n Notice (Dec. 22, 2017).
Apart from the 1057 and 1097
investigations that the parties have
already addressed, please briefly
identify any Commission precedent
requiring a complainant to present its
manufacturing investment data.
(8) Please discuss whether, in an
investigation in which the DI products
are manufactured outside the United
States, it is consistent with the statute,
legislative history, and court and
Commission precedent not to consider
foreign manufacturing expenses in
determining the significance of
domestic industry investments and
expenditures.
(9) Chamberlain has argued that the
’223 DI products overlap with the
products analyzed in the 1016
investigation. See Chamberlain
Submission on Remand at 25 (June 1,
2020). Please discuss the extent of the
overlap in the DI products in the 1016
investigation and the present
investigation.
(10) Given that the parties responded
to the Commission’s request for briefing
on remedy, the public interest, and
bonding five months ago, the parties
should revise their submissions on these
subjects for the limited purpose of
updating them in light of the last five
months. The parties should include a
discussion as to whether limiting the
scope of the violation (if any) and
covered products to the ’233 patent and
excluding the ’404 and ’052 patents
would impact the determination of
remedy (e.g., by affecting the scope of
Nortek’s domestic inventory), the public
interest, bonding, or any other issues on
review. The parties, in preparing their
supplemental submissions, should
follow the instructions provided by the
Commission in its earlier notice of
partial review of the Final ID. See 85 FR
at 10724–26 (Feb. 19, 2020).
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
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Federal Register / Vol. 85, No. 179 / Tuesday, September 15, 2020 / Notices
filings. 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.
The parties’ written submissions and
proposed remedial orders must be filed
no later than the close of business on
September 23, 2020. Reply submissions
must be filed no later than the close of
business on September 30, 2020.
Opening submissions are limited to 30
pages. Reply submissions are limited to
25 pages. Third-party submissions
should be filed no later than the close
of business on September 30, 2020, and
may not include 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 deadlines
stated above. The Commission’s paper
filing requirements in 19 CFR 210.4(f)
are currently waived. 85 FR 15798 (Mar.
19, 2020). 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.
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16:57 Sep 14, 2020
Jkt 250001
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).
The Commission voted to approve
these determinations on September 9,
2020.
By order of the Commission.
Issued: September 9, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–20279 Filed 9–14–20; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed
Consent Decree Under the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980
On September 9, 2020, the
Department of Justice lodged a proposed
Consent Decree with the United States
District Court for the District of
Colorado in the lawsuit entitled United
States of America v. Pioneer Natural
Resources Company and Pioneer
Natural Resources USA, Inc., Civil
Action No.1:17–CV–00168–WJM–NYM.
The lawsuit was commenced in
January 2017, when the United States,
on behalf of the United States
Environmental Protection Agency
(‘‘EPA’’), filed a complaint against
Pioneer Natural Resources Company
and Pioneer Natural Resources USA,
Inc. (‘‘Settling Defendants’’) seeking
reimbursement of response costs
incurred under Section 107(a) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act (‘‘CERCLA’’), 42 U.S.C. 9607(a), for
response actions at or in connection
with the release or threatened release of
hazardous substances at Operable Unit
1 (‘‘OU1’’) of the Nelson Tunnel/
Commodore Waste Rock Pile Superfund
Site (‘‘Site’’). The United States also
sought a declaration of Settling
Defendants’ liability, pursuant to
Section 113(g) of CERCLA for all future
response costs to be incurred by the
United States in connection with the
OU1 Site. A remedial action at Operable
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57251
Unit 2 (‘‘OU2’’) of the Site is also
ongoing. The filed Complaint was for
OU1 response costs only.
In September 2017, Pioneer filed a
counterclaim against the United States
alleging that the United States is liable
under Sections 107 and 113 of CERCLA,
42 U.S.C. 9607 and 9613, as both an
owner of OU1 at the time that hazardous
substances were disposed of at OU1 and
a current owner of OU1. Settling
Defendants in their counterclaims
sought a judgment against the United
States for the United States’ equitable
share of costs incurred and that may, in
the future, be incurred as a result of the
release or threatened release of
hazardous substances at the OU1 Site.
The proposed Consent Decree will
resolve all CERCLA claims and
counterclaims alleged in this action. In
addition, the proposed Consent Decree
will resolve CERCLA claims relating to
OU2, as detailed below.
The proposed Consent Decree
requires Settling Defendants to pay
$5,775,000 for past and future response
costs incurred by the United States in
connection with OU1 and OU2 at the
Site. In return, the United States
provides a covenant not to sue and
contribution protection to Settling
Defendants for past and future response
costs in connection with the Site as a
whole, which includes OU1 and OU2.
These covenants extend only to Settling
Defendants and are conditioned upon
the satisfactory performance by Settling
Defendants of their obligations under
the proposed Consent Decree.
The proposed Consent Decree also
requires Settling Federal Agencies, the
United States, on behalf of the United
States Department of Interior and the
United States Department of
Agriculture, on behalf of the United
States Forest Service (‘‘USFS’’), to pay
EPA $425,000 for past and future
response costs incurred in connection
with OU1 at the Site and past response
costs incurred in connection with OU2
at the Site. Future response costs to be
incurred by EPA and the USFS in
connection with the CERCLA response
action(s) at OU2 will be resolved
through a memorandum of
understanding or interagency agreement
between the USFS and EPA. In return
for the payment from Settling Federal
Agencies, EPA provides a covenant to
not take administrative action against
Settling Federal Agencies to recover
past and future response costs in
connection with OU1 at the Site and
past response costs in connection with
OU2 at the Site. These covenants only
extend to Settling Federal Agencies and
are also conditioned upon the
satisfactory performance by Settling
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]]>Agencies
[Federal Register Volume 85, Number 179 (Tuesday, September 15, 2020)]
[Notices]
[Pages 57249-57251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20279]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1118]
Certain Movable Barrier Operator Systems and Components Thereof;
Notice of a Commission Determination To Review a Remand Initial
Determination; Request for Written Submissions
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 a Remand
Initial Determination (``Remand ID'') finding that the complainant The
Chamberlain Group, Inc. (``CGI'') has satisfied the economic prong of
the domestic industry requirement with respect to U.S. Patent No.
7,755,223 (``the '223 patent''); and request supplemental briefing on
remedy, the public interest, and bonding for the limited purpose of
updating submissions submitted in March 2020.
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 may
be viewed on the Commission's electronic docket system (``EDIS'') at
https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.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: The Commission instituted this investigation
on June 11, 2018, based on a complaint, as supplemented, filed by CGI
of Oak Brook, Illinois. 83 FR 27020-21 (June 11, 2018). The complaint
alleges a violation of section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``Section 337''), in the importation, sale for
importation, or sale in the United States after importation of certain
movable barrier operator (``MBO'') systems that purportedly infringe
one or more of the asserted claims of the '223 patent and U.S. Patent
Nos. 8,587,404 (``the '404 patent'') and 6,741,052 (``the '052
patent''). Id. 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. Id. The Office of Unfair Import
Investigations was not named as a party to this investigation. See id.
The Commission subsequently terminated the investigation with
respect to certain patent claims withdrawn by CGI. See Order No. 16
(Feb. 5, 2019), unreviewed by Comm'n Notice (March 6, 2019); Order No.
27 (June 7, 2019), unreviewed by Comm'n Notice (June 27, 2019); Order
No. 31 (July 30, 2019), unreviewed by Comm'n Notice (Aug. 19, 2019);
Order No. 32 (Sept. 27, 2019), unreviewed by Comm'n Notice (Oct. 17,
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, CGI filed a motion for summary determination
that it satisfied the economic prong of the domestic industry
requirement. Nortek opposed the motion. 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 an evidentiary hearing on the issues in dispute on
June 10-14, 2019.
On November 25, 2019, ALJ issued Order No. 38, finding no issue of
material fact that CGI's investments in labor and capital relating to
its domestic industry products were ``significant''
[[Page 57250]]
and that CGI has satisfied the economic prong of the domestic industry
requirement pursuant to Section 337(a)(3)(B) (19 U.S.C. 1337(a)(3)(B)).
Order No. 38 (Nov. 25, 2019). Order No. 38 also finds that genuine
issues of material fact precluded entry of summary determination with
respect to CGI's investments in plant and equipment, under Section
337(a)(3)(A) (19 U.S.C. 1337(a)(3)(A)). Id.
On the same date, the ALJ issued a final initial determination
(``Final ID''), finding no violation of Section 337 because the
asserted claims of the '223 and '404 patents, if valid, are not
infringed and the asserted claim of the '052 patent is invalid, even if
infringed. Initial Determination on Violation of Section 337 and
Recommended Determination on Remedy and Bond (Nov. 25, 2019).
On February 19, 2020, the Commission issued a notice of its
determination to review Order No. 38 and to partially review the Final
ID with respect to certain issues relating to each of the three
asserted patents. 85 FR 10723-26 (Feb. 25, 2020). The Commission also
directed the parties to brief its questions on violation and requested
briefing from the parties, the public, and any interested government
entities concerning remedy, the public interest, and bonding. Id.
On April 22, 2020, the Commission issued a determination finding no
violation with respect to the '404 or '052 patents. Comm'n Notice at 3
(April 22, 2020). The Commission also vacated Order No. 38 and remanded
the economic prong issue with respect to the '223 patent. Id.; Order
Vacating and Remanding Order No. 38 (April 22, 2020) (``Remand
Order'').
On May 15, 2020, the ALJ issued Order No. 39, seeking additional
information from the parties in light of the Commission's Remand Order.
Order No. 39 (May 15, 2020). On July 10, 2020, the ALJ issued the
subject Remand ID, finding that CGI has made significant investments,
both quantitatively and qualitatively, in plant and equipment and labor
and capital, pursuant to Section 337(a)(3)(A) and (B) (19 U.S.C.
1337(a)(3)(A)-(B)), respectively. Remand Initial Determination (July
10, 2020). The Remand ID concludes that CGI has satisfied the economic
prong of the domestic industry requirement in relation to the '223
patent. Id.
On July 20, 2020, Nortek filed a petition for review of the RID.
CGI filed its opposition to Nortek's petition for review on July 27,
2020.
Having reviewed the Remand ID, the parties' submissions, and the
record in this investigation, the Commission has determined to review
the Remand ID and requests the parties to brief the following
questions:
(1) With respect to CGI's garage door opener (``GDO'') products
that purportedly practice the '223 patent (`` '223 DI products''),
provide the percentage of CGI's sales of its '223 DI products in the
United States compared to its total, worldwide sales of such products.
Explain whether this percentage substantially differs from the
percentage of CGI's sales of all GDO products in the United States
compared to its worldwide sales of all GDO products or the percentage
of CGI's sales of all products in the United States compared to its
worldwide sales of all products, as provided by CGI. If so, explain
whether using the percentage of CGI's sales of '223 DI products in the
United States, compared to its total worldwide sales of such products,
would materially affect calculation of its relevant domestic industry
investments or foreign investments in plant and equipment or labor and
capital, and how this may affect the economic prong analysis.
(2) Explain whether CGI's calculations of its foreign expenditures
for plant and equipment or labor and capital relating to its '223 DI
products include its foreign manufacturing expenditures. If not, please
indicate what information is in the record regarding its foreign
manufacturing expenses, and provide, if possible, calculations
comparing domestic expenditures to total expenditures (that include the
foreign manufacturing expenses). Based on these calculations, discuss
how including CGI's foreign manufacturing expenditures affects
assessment of the significance of its relevant domestic industry
investments in either plant and equipment or labor and capital.
(3) When were the calculations and analyses that the Commission has
requested in questions (1) and (2) performed? Who performed them?
(4) Did Nortek previously present any calculations or analyses
using CGI's worldwide sales?
(5) Please provide further detail (as available in the record)
regarding the activities performed at CGI's Technical Support Center in
Tucson. Explain, with reference to relevant Commission precedent, the
extent to which the Commission should consider such expenses in its
assessment of the economic prong. Also explain whether these activities
are the sort that a mere importer would need to carry out in the United
States (as opposed to in another country).
(6) Please discuss the similarities and differences between the
allocation methodologies Chamberlain used in this investigation and
allocation methodology used in the 1016 investigation, Certain Access
Control Systems and Components Thereof, Inv. No. 337-TA-1016.
(7) In the 1016 investigation, did the presiding ALJ or the
Commission require Chamberlain to evaluate its worldwide sales or
foreign manufacturing when it was concluded that Chamberlain satisfied
the economic prong? See generally 1016 Initial Determination at 222-293
(Oct. 23, 2017); Comm'n Notice (Dec. 22, 2017). Apart from the 1057 and
1097 investigations that the parties have already addressed, please
briefly identify any Commission precedent requiring a complainant to
present its manufacturing investment data.
(8) Please discuss whether, in an investigation in which the DI
products are manufactured outside the United States, it is consistent
with the statute, legislative history, and court and Commission
precedent not to consider foreign manufacturing expenses in determining
the significance of domestic industry investments and expenditures.
(9) Chamberlain has argued that the '223 DI products overlap with
the products analyzed in the 1016 investigation. See Chamberlain
Submission on Remand at 25 (June 1, 2020). Please discuss the extent of
the overlap in the DI products in the 1016 investigation and the
present investigation.
(10) Given that the parties responded to the Commission's request
for briefing on remedy, the public interest, and bonding five months
ago, the parties should revise their submissions on these subjects for
the limited purpose of updating them in light of the last five months.
The parties should include a discussion as to whether limiting the
scope of the violation (if any) and covered products to the '233 patent
and excluding the '404 and '052 patents would impact the determination
of remedy (e.g., by affecting the scope of Nortek's domestic
inventory), the public interest, bonding, or any other issues on
review. The parties, in preparing their supplemental submissions,
should follow the instructions provided by the Commission in its
earlier notice of partial review of the Final ID. See 85 FR at 10724-26
(Feb. 19, 2020).
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
[[Page 57251]]
filings. 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.
The parties' written submissions and proposed remedial orders must
be filed no later than the close of business on September 23, 2020.
Reply submissions must be filed no later than the close of business on
September 30, 2020. Opening submissions are limited to 30 pages. Reply
submissions are limited to 25 pages. Third-party submissions should be
filed no later than the close of business on September 30, 2020, and
may not include 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 deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (Mar. 19, 2020). 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).
The Commission voted to approve these determinations on September
9, 2020.
By order of the Commission.
Issued: September 9, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-20279 Filed 9-14-20; 8:45 am]
BILLING CODE 7020-02-P
