Certain High-Density Fiber Optic Equipment and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 28890-28893 [2021-11299]

Download as PDF 28890 Federal Register / Vol. 86, No. 102 / Friday, May 28, 2021 / Notices Frequency of Collection: One time. Total Estimated Annual Nonhour Burden Cost: $0. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Mark J. Gehlhar, Information Collection Clearance Officer, Division of Regulatory Support. [FR Doc. 2021–11308 Filed 5–27–21; 8:45 am] BILLING CODE 4310–05–P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement [S1D1S SS08011000 SX064A000 211S180110; S2D2S SS08011000 SX064A000 21XS501520; OMB Control Number 1029–0080] Permanent Regulatory Program Requirements—Standards for Certification of Blasters Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Notice of information collection; request for comment. AGENCY: In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection. DATES: Interested persons are invited to submit comments on or before July 27, 2021. ADDRESSES: Send your comments on this information collection request (ICR) by mail to Mark Gehlhar, Office of Surface Mining Reclamation and Enforcement, 1849 C Street NW, Room 4556–MIB, Washington, DC 20240, or by email to mgehlhar@osmre.gov. Please reference OMB Control Number 1029– 0080 in the subject line of your comments. FOR FURTHER INFORMATION CONTACT: To request additional information about this ICR, contact Mark Gehlhar by email at mgehlhar@osmre.gov, or by telephone at 202–208–2716. SUPPLEMENTARY INFORMATION: In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and 5 CFR 1320.8(d)(1), we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of SUMMARY: VerDate Sep<11>2014 17:28 May 27, 2021 Jkt 253001 information. This helps us assess the impact of our information collection requirements and minimize the public’s reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format. We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency minimize the burden of this collection on the respondents, including through the use of information technology. Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. 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. Abstract: The information is used to identify and evaluate new blaster certification programs. Part 850 implements Section 719 of the Surface Mining Control and Reclamation Act (SMCRA). Section 719 requires the Secretary of the Interior to issue regulations which provide for each State regulatory authority to train, examine and certify persons for engaging in blasting or use of explosives in surface coal mining operations. Each State that wishes to certify blasters must submit a blasters certification program to OSMRE for approval. Title of Collection: Reclamation on Private Lands. OMB Control Number: 1029–0080. Form Number: None. Type of Review: Extension of a currently approved collection. Respondents/Affected Public: State and Tribal governments. Total Estimated Number of Annual Respondents: 1. Total Estimated Number of Annual Responses: 1. Estimated Completion Time per Response: 320 hours. PO 00000 Frm 00144 Fmt 4703 Sfmt 4703 Total Estimated Number of Annual Burden Hours: 320. Respondent’s Obligation: Required to obtain or retain a benefit. Frequency of Collection: One time. Total Estimated Annual Nonhour Burden Cost: $0. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Mark J. Gehlhar, Information Collection Clearance Officer, Division of Regulatory Support. [FR Doc. 2021–11307 Filed 5–27–21; 8:45 am] BILLING CODE 4310–05–P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–1194] Certain High-Density Fiber Optic Equipment and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission has determined to review in part a final initial determination (‘‘ID’’) issued by the presiding administrative law judge (‘‘ALJ’’), finding a violation of section 337 of the Tariff Act of 1930. The Commission requests written submissions from the parties on the issues under review and submissions from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below. FOR FURTHER INFORMATION CONTACT: Cathy Chen, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 202– 205–2392. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission’s electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email EDIS3Help@usitc.gov. General information concerning the Commission SUMMARY: E:\FR\FM\28MYN1.SGM 28MYN1 Federal Register / Vol. 86, No. 102 / Friday, May 28, 2021 / Notices 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 on (202) 205–1810. SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on March 24, 2020, based on a complaint filed on behalf of Corning Optical Communications LLC (‘‘Corning’’) of Charlotte, North Carolina. 85 FR 16653 (Mar. 24, 2020). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain high-density fiber optic equipment and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 9,020,320 (‘‘the ’320 patent’’); 10,120,153 (‘‘the ’153 patent’’); 8,712,206 (‘‘the ’206 patent’’); 10,094,996 (‘‘the ’996 patent’’); and 10,444,456 (‘‘the ’456 patent’’). Id. The complaint further alleged that a domestic industry exists. Id. The Commission’s notice of investigation named the following as respondents: Total Cable Solutions, Inc. (‘‘TCS’’) of Springboro, Ohio; Legrand North America, LLC (‘‘Legrand’’) of West Hartford, Connecticut; AFL Telecommunications Holdings LLC (‘‘AFL Holdings’’) of Duncan, South Carolina; Huber+Suhner AG of Herisau, Switzerland; Huber + Suhner, Inc. of Charlotte, North Carolina; Shenzhen Anfkom Telecom Co., Ltd. d/b/a Anfkom Telecom (‘‘Anfkom’’) of Shenzhen, China; Shanghai TARLUZ Telecom Tech. Co., Ltd. d/b/a TARLUZ (‘‘TARLUZ’’) of Shanghai, China; Wulei Technology Co., Ltd. d/b/a Bonelinks (‘‘Wulei Bonelinks’’) of Shenzhen, China; FS.com Inc. (‘‘FS’’) of New Castle, Delaware; Leviton Manufacturing Co., Inc. (‘‘Leviton’’) of Melville, New York; Panduit Corporation (‘‘Panduit’’) of Tinley, Illinois; The LAN Wirewerks Research Laboratories Inc. d/b/a Wirewerks (‘‘Wirewerks’’) of Quebec, Canada; and The Siemon Company (‘‘Siemon’’) of Watertown, Connecticut. Id. The notice of investigation also names the Office of Unfair Import Investigations (‘‘OUII’’) as a party. Id. at 16654. Respondent Legrand was terminated from the investigation based on withdrawal of allegations in the complaint pursuant to Commission Rule 210.21(a), 19 CFR 210.21(a). See Order No. 5 (Apr. 16, 2020); unreviewed by VerDate Sep<11>2014 17:28 May 27, 2021 Jkt 253001 Comm’n Notice (May 7, 2020). The complaint and notice of investigation were amended to substitute AFL Telecommunications LLC for respondent AFL Holdings. 85 FR 44923 (July 24, 2020). Thereafter, Respondent AFL Telecommunications LLC was terminated from the investigation based on a settlement agreement. See Order No. 27 (Oct. 20, 2020), unreviewed by Comm’n Notice (Nov. 2, 2020). Respondents Huber + Suhner AG, Huber + Suhner, Inc., Anfkom, TARLUZ, and Wulei Bonelinks (collectively, ‘‘Defaulting Respondents’’) were found in default pursuant to Commission Rule 210.16, 19 CFR 210.16. See Order Nos. 7 & 8 (June 9, 2020), unreviewed by Comm’n Notice (June 22, 2020); Order No. 13 (Aug. 21, 2020), unreviewed by Comm’n Notice (Sep. 15, 2020). Respondent TCS was terminated from the investigation based on consent. See Comm’n Notice (Sept. 28, 2020). Accordingly, Respondents Panduit, Leviton, Siemon, FS, and Wirewerks (collectively, ‘‘Active Respondents’’) remain active in the investigation. As a result of termination of all asserted claims of the ’996 patent and certain other asserted claims, see Order No. 11 (July 29, 2020), unreviewed by Comm’n Notice (Aug. 13, 2020); Order No. 18 (Sept. 14, 2020), unreviewed by Comm’n Notice (Oct. 14, 2020); and Order No. 19 (Oct. 2, 2020), unreviewed by Comm’n Notice (Oct. 27, 2020), claims 1 and 3 of the ’320 patent; claims 11, 12, 14–16, 19, 21, 27, and 28 of the ’456 patent; claims 9, 16, 23, and 26 of the ’153 patent; and claims 22 and 23 of the ’206 patent remain asserted in the investigation. A prehearing conference and evidentiary hearing were held in this investigation from October 21–26, 2020. On March 23, 2021, the ALJ issued his final ID, finding a violation of section 337 with respect to claims 1 and 3 of the ’320 patent; claims 11, 12, 14–16, 19, 21, 27, and 28 of the ’456 patent; claims 9, 16, 23, and 26 of the ’153 patent; and claims 22 and 23 of the ’206 patent. The ID also found the Active Respondents have not shown that any of the asserted patent claims are invalid. The ID further found that the economic prong of the domestic industry requirement has been satisfied with respect to all the asserted patents under section 337(a)(3)(B) and (C). On April 5, 2021, OUII and Respondent Leviton each filed a petition for review of the ID. That same day, Respondents FS, Panduit, Wirewerks, and Siemon (collectively, ‘‘Joint Respondents’’) also filed a joint petition for review. On April 13, 2021, OUII, Leviton, the Joint Respondents, and PO 00000 Frm 00145 Fmt 4703 Sfmt 4703 28891 Complainant Corning each filed a response to the petitions. Having reviewed the record of the investigation, including the final ID, the parties’ submissions to the ALJ, the petitions for review, and the responses thereto, the Commission has determined to review the ID in part. Specifically, the Commission has determined to review: (1) The ID’s finding that the importation requirement of section 337 is met with respect to the accused products of Respondents Leviton, Panduit, and Siemon; (2) the ID’s interpretation of the ‘‘width of the front side of [the] fiber optic module’’ limitation in the asserted claims of the ’456 patent, and the associated infringement findings; (3) the ID’s construction of ‘‘a front opening’’ in the asserted claims of the ’206 patent, and the associated infringement findings; (4) the ID’s finding that Leviton directly infringes the asserted claims of the ’320 and ’456 patents; (5) the ID’s findings on indirect infringement of the asserted claims of the ’320, ’456, and/or ’153 patents by the accused products of Respondents Leviton, Panduit, FS, and Siemon; and (6) the ID’s finding that Corning has satisfied the economic prong of the domestic industry requirement under section 337(a)(3)(B) and (C). The Commission has determined not to review any other findings presented in the final ID. In connection with its review, Commission requests responses to the following questions. The parties are requested to brief their positions with reference to the applicable law and the existing evidentiary record. 1. To determine whether an imported article, which does not satisfy all elements of an asserted patent claim, is an ‘‘article that infringes’’ within the meaning of section 337 when the respondent-importer uses the imported article to directly infringe the asserted patent claim after importation: a. Would it be appropriate for the Commission to consider whether there is a sufficient nexus between the imported article and the alleged unfair acts? b. Would it be appropriate for the Commission to consider the following factors: (i) Whether the imported article is a material part of the claimed invention, (ii) whether it is especially designed and/or configured for use in an infringing manner, (iii) whether it has substantial noninfringing uses, and (iv) the extent to which it is modified or combined with other articles after importation? Please consider the applicable Court and Commission precedent, including Suprema, Inc. v. International Trade E:\FR\FM\28MYN1.SGM 28MYN1 28892 Federal Register / Vol. 86, No. 102 / Friday, May 28, 2021 / Notices Comm’n, 796 F.3d 1338 (Fed. Cir. 2015), and please apply your analysis to the facts of this investigation with respect to Leviton’s alleged direct infringement of the asserted claims of the ’320 and ’456 patents. 2. With regard to Leviton, please address with citation to the record whether any of the U.S.-sourced parts and assembly steps in the United States for Leviton’s enclosures relate to the claims asserted against Leviton. 3. Please provide citation to any record evidence of sales of the accused products by Leviton, Panduit, Siemon, or FS. In addition, please discuss the relevance, if any, of such sales in determining whether there is direct infringement of the ’320, ’456, and/or ’153 patents by third-parties. 4. With citation to the record evidence please discuss whether there are any non-infringing uses of the accused products that provide at least 98 fiber optic connections per 1U space as required by claim 1 of the ’320 patent or at least 144 fiber optic connections per 1U space required by claim 3 of the ’320 patent. In addition, please discuss the relevance, if any, of such noninfringing uses in assessing the knowledge requirement for inducement by Leviton, Panduit, Siemon, and FS and in determining whether there is direct infringement of the ’320, ’456, and/or ’153 patents by third-parties. 5. Does the record evidence show that Leviton, Panduit, Siemon, and FS copied Corning’s EDGE products, including designing and developing their accused products to support the same high fiber density as Corning’s EDGE products and with the goal of capturing EDGE’s customers and the same segment of the market? 6. Please address whether the domestic industry investments constitute investments in the ‘‘exploitation’’ of the asserted patents under Section 337(a)(3)(C). See Certain Integrated Circuit Chips and Products Containing the Same, Inv. No. 337–TA– 859, Comm’n Op., 2014 WL 12796437 (Aug. 22, 2014). 7. The Federal Circuit has stated that section 337 does not protect mere importers. See, e.g., Schaper Mfg. Co. v. Int’l Trade Comm’n, 717 F.2d 1368, 1372–73 (Fed. Cir. 1983). Please explain whether Complainant’s asserted domestic industry differs from that of a mere importer, including by discussing: (A) How the Commission and the Federal Circuit have considered such investments in prior investigations, and (B) how the facts of this investigation should be assessed in light of applicable precedent. Also address the extent to which the activities relied upon to show VerDate Sep<11>2014 17:28 May 27, 2021 Jkt 253001 satisfaction of the economic prong (e.g., field engineering and Pioneer-related expenses) need to take place in the United States either as a legal or a practical matter, such that those activities would not distinguish a domestic industry from a mere importer. 8. Please address whether and to what extent Schaper Mfg. Co. v. Int’l Trade Comm’n, 717 F.2d 1368, 1372–73 (Fed. Cir. 1983), should continue to guide the Commission’s analysis in light of changes to the law and Commission and Federal Circuit precedents since 1983 and the legislative history associated with the 1988 amendments to section 337 discussing the ‘‘inconsistent and unduly narrow’’ view of domestic industry reflected in certain pre-1988 Commission decisions and specifically citing as an example the Commission’s decision in Certain Miniature, BatteryOperated, All Terrain, Wheeled Vehicles, Inv. No. 337–TA–122. See, e.g., Certain Solid State Storage Drives, Stacked Electronics Components, and Products Containing the Same, Inv. No. 337–TA–1097, Commission Op. at 9, n.6 (June 29, 2018). The parties are invited to brief only the discrete issues requested above. The parties are not to brief other issues on review, which are adequately presented in the parties’ existing filings. In connection with the final disposition of this investigation, the statute authorizes issuance of, inter alia, (1) an exclusion order that could result in the exclusion of the subject articles from entry into the United States; and/ or (2) cease and desist orders that could result in the respondents being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. 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 (Dec. 1994). The statute requires the Commission to consider the effects of that remedy upon the public interest. The public interest factors the Commission will consider include the effect that an exclusion order and/or a cease and desist order would have on: (1) The public health and welfare, (2) PO 00000 Frm 00146 Fmt 4703 Sfmt 4703 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 the investigation are requested to file written submissions on the issues identified in this notice. The parties’ opening submissions should not exceed 80 pages, and their reply submissions should not exceed 50 pages. Parties to the investigation, interested government agencies, and any other interested parties are encouraged to file written submissions on the issues of remedy, the public interest, and bonding. Such submissions should address the recommended determination by the ALJ on remedy and bonding. In their initial submissions, Complainant is also requested to identify the remedy sought and Complainant and OUII are requested to submit proposed remedial orders for the Commission’s consideration. Complainant is further requested to state the dates that the Asserted Patents expire, to provide the HTSUS subheadings under which the accused products are imported, and to supply the identification information for all known importers of the products at issue in this investigation. The initial written submissions and proposed remedial orders must be filed no later than close of business on Monday, June 7, 2021. Reply submissions must be filed no later than the close of business on Monday, June 14, 2021. No further submissions on these issues will be permitted unless otherwise ordered by the Commission. Persons filing written submissions must file the original document electronically on or before the deadlines E:\FR\FM\28MYN1.SGM 28MYN1 Federal Register / Vol. 86, No. 102 / Friday, May 28, 2021 / Notices stated above. The Commission’s paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the investigation number (Inv. No. 337–TA–1194) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures, https://www.usitc.gov/ documents/handbook_on_filing_ procedures.pdf). Persons with questions regarding filing should contact the Secretary, (202) 205–2000. Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. A redacted nonconfidential version of the document must also be filed simultaneously with any confidential filing. 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 nonconfidential written submissions will be available for public inspection on EDIS. The Commission vote for this determination took place on May 24, 2021. 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: May 24, 2021. Lisa Barton, Secretary to the Commission. [FR Doc. 2021–11299 Filed 5–27–21; 8:45 am] 17:28 May 27, 2021 [Investigation No. 731–TA–1537 (Final)] Chassis and Subassemblies From China; Supplemental Schedule for the Final Phase of an Antidumping Duty Investigation United States International Trade Commission. ACTION: Notice. AGENCY: DATES: Jkt 253001 May 17, 2021. FOR FURTHER INFORMATION CONTACT: Ahdia Bavari ((202) 205–3191), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearingimpaired persons can obtain information on this matter by contacting the Commission’s TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (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 these investigations may be viewed on the Commission’s electronic docket (EDIS) at https://edis.usitc.gov. SUPPLEMENTARY INFORMATION: Effective December 28, 2020, the Commission established a general schedule for the conduct of the final phase of its investigations on chassis and subassemblies (‘‘chassis’’) from China,1 following a preliminary determination by the U.S. Department of Commerce (‘‘Commerce’’) that imports of chassis from China were being subsidized by the government of China.2 Notice of the scheduling of the final phase of the Commission’s investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the Federal Register of January 14, 2021, 2019 (86 FR 3193). The hearing was held on March 16, 2021, and all persons who requested the opportunity were permitted to appear in person or by counsel. The Commission subsequently issued its final determination that an industry in the United States was materially injured by reason of imports of chassis that Commerce had determined were subsidized by the government of China. On May 11, 2021, 1 86 2 86 BILLING CODE 7020–02–P VerDate Sep<11>2014 INTERNATIONAL TRADE COMMISSION PO 00000 FR 3193, January 14, 2021. FR 56, January 4, 2021. Frm 00147 Fmt 4703 Sfmt 4703 28893 Commerce issued its final affirmative determination that imports of chassis from China were being sold at LTFV in the United States.3 Accordingly, the Commission currently is issuing a supplemental schedule for its antidumping duty investigation on imports of chassis from China. This supplemental schedule is as follows: The deadline for filing supplemental party comments on Commerce’s final antidumping duty determination is June 4, 2021. Supplemental party comments may address only Commerce’s final antidumping duty determination regarding imports of chassis from China. These supplemental final comments may not contain new factual information and may not exceed five (5) pages in length. The supplemental staff report in the final phase of this investigation regarding subject imports from China will be placed in the nonpublic record on June 11, 2021; and a public version will be issued thereafter. For further information concerning this investigation see the Commission’s notice cited above and the Commission’s Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207). Please note the Secretary’s Office will accept only electronic filings during this time. Filings must be made through the Commission’s Electronic Document Information System (EDIS, https:// edis.usitc.gov.) No in-person paperbased filings or paper copies of any electronic filings will be accepted until further notice. Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission’s rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff. In accordance with sections 201.16(c) and 207.3 of the Commission’s rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service. Authority: This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission’s rules. 3 86 FR 26694, May 17, 2021. E:\FR\FM\28MYN1.SGM 28MYN1

Agencies

[Federal Register Volume 86, Number 102 (Friday, May 28, 2021)]
[Notices]
[Pages 28890-28893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11299]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1194]


Certain High-Density Fiber Optic Equipment and Components 
Thereof; Commission Determination To Review in Part a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions on the Issues Under Review and on Remedy, the Public 
Interest, and Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part a final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ''), finding a violation of section 337 of the Tariff Act of 
1930. The Commission requests written submissions from the parties on 
the issues under review and submissions from the parties, interested 
government agencies, and interested persons on the issues of remedy, 
the public interest, and bonding, under the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Cathy Chen, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone 202-205-2392. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
[email protected]. General information concerning the Commission

[[Page 28891]]

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 
on (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on March 24, 2020, based on a complaint filed on behalf of Corning 
Optical Communications LLC (``Corning'') of Charlotte, North Carolina. 
85 FR 16653 (Mar. 24, 2020). The complaint, as supplemented, alleged 
violations of section 337 of the Tariff Act of 1930, as amended, 19 
U.S.C. 1337, in the importation into the United States, the sale for 
importation, or the sale within the United States after importation of 
certain high-density fiber optic equipment and components thereof by 
reason of infringement of certain claims of U.S. Patent Nos. 9,020,320 
(``the '320 patent''); 10,120,153 (``the '153 patent''); 8,712,206 
(``the '206 patent''); 10,094,996 (``the '996 patent''); and 10,444,456 
(``the '456 patent''). Id. The complaint further alleged that a 
domestic industry exists. Id. The Commission's notice of investigation 
named the following as respondents: Total Cable Solutions, Inc. 
(``TCS'') of Springboro, Ohio; Legrand North America, LLC (``Legrand'') 
of West Hartford, Connecticut; AFL Telecommunications Holdings LLC 
(``AFL Holdings'') of Duncan, South Carolina; Huber+Suhner AG of 
Herisau, Switzerland; Huber + Suhner, Inc. of Charlotte, North 
Carolina; Shenzhen Anfkom Telecom Co., Ltd. d/b/a Anfkom Telecom 
(``Anfkom'') of Shenzhen, China; Shanghai TARLUZ Telecom Tech. Co., 
Ltd. d/b/a TARLUZ (``TARLUZ'') of Shanghai, China; Wulei Technology 
Co., Ltd. d/b/a Bonelinks (``Wulei Bonelinks'') of Shenzhen, China; 
FS.com Inc. (``FS'') of New Castle, Delaware; Leviton Manufacturing 
Co., Inc. (``Leviton'') of Melville, New York; Panduit Corporation 
(``Panduit'') of Tinley, Illinois; The LAN Wirewerks Research 
Laboratories Inc. d/b/a Wirewerks (``Wirewerks'') of Quebec, Canada; 
and The Siemon Company (``Siemon'') of Watertown, Connecticut. Id. The 
notice of investigation also names the Office of Unfair Import 
Investigations (``OUII'') as a party. Id. at 16654.
    Respondent Legrand was terminated from the investigation based on 
withdrawal of allegations in the complaint pursuant to Commission Rule 
210.21(a), 19 CFR 210.21(a). See Order No. 5 (Apr. 16, 2020); 
unreviewed by Comm'n Notice (May 7, 2020). The complaint and notice of 
investigation were amended to substitute AFL Telecommunications LLC for 
respondent AFL Holdings. 85 FR 44923 (July 24, 2020). Thereafter, 
Respondent AFL Telecommunications LLC was terminated from the 
investigation based on a settlement agreement. See Order No. 27 (Oct. 
20, 2020), unreviewed by Comm'n Notice (Nov. 2, 2020). Respondents 
Huber + Suhner AG, Huber + Suhner, Inc., Anfkom, TARLUZ, and Wulei 
Bonelinks (collectively, ``Defaulting Respondents'') were found in 
default pursuant to Commission Rule 210.16, 19 CFR 210.16. See Order 
Nos. 7 & 8 (June 9, 2020), unreviewed by Comm'n Notice (June 22, 2020); 
Order No. 13 (Aug. 21, 2020), unreviewed by Comm'n Notice (Sep. 15, 
2020). Respondent TCS was terminated from the investigation based on 
consent. See Comm'n Notice (Sept. 28, 2020). Accordingly, Respondents 
Panduit, Leviton, Siemon, FS, and Wirewerks (collectively, ``Active 
Respondents'') remain active in the investigation.
    As a result of termination of all asserted claims of the '996 
patent and certain other asserted claims, see Order No. 11 (July 29, 
2020), unreviewed by Comm'n Notice (Aug. 13, 2020); Order No. 18 (Sept. 
14, 2020), unreviewed by Comm'n Notice (Oct. 14, 2020); and Order No. 
19 (Oct. 2, 2020), unreviewed by Comm'n Notice (Oct. 27, 2020), claims 
1 and 3 of the '320 patent; claims 11, 12, 14-16, 19, 21, 27, and 28 of 
the '456 patent; claims 9, 16, 23, and 26 of the '153 patent; and 
claims 22 and 23 of the '206 patent remain asserted in the 
investigation.
    A prehearing conference and evidentiary hearing were held in this 
investigation from October 21-26, 2020.
    On March 23, 2021, the ALJ issued his final ID, finding a violation 
of section 337 with respect to claims 1 and 3 of the '320 patent; 
claims 11, 12, 14-16, 19, 21, 27, and 28 of the '456 patent; claims 9, 
16, 23, and 26 of the '153 patent; and claims 22 and 23 of the '206 
patent. The ID also found the Active Respondents have not shown that 
any of the asserted patent claims are invalid. The ID further found 
that the economic prong of the domestic industry requirement has been 
satisfied with respect to all the asserted patents under section 
337(a)(3)(B) and (C).
    On April 5, 2021, OUII and Respondent Leviton each filed a petition 
for review of the ID. That same day, Respondents FS, Panduit, 
Wirewerks, and Siemon (collectively, ``Joint Respondents'') also filed 
a joint petition for review. On April 13, 2021, OUII, Leviton, the 
Joint Respondents, and Complainant Corning each filed a response to the 
petitions.
    Having reviewed the record of the investigation, including the 
final ID, the parties' submissions to the ALJ, the petitions for 
review, and the responses thereto, the Commission has determined to 
review the ID in part. Specifically, the Commission has determined to 
review: (1) The ID's finding that the importation requirement of 
section 337 is met with respect to the accused products of Respondents 
Leviton, Panduit, and Siemon; (2) the ID's interpretation of the 
``width of the front side of [the] fiber optic module'' limitation in 
the asserted claims of the '456 patent, and the associated infringement 
findings; (3) the ID's construction of ``a front opening'' in the 
asserted claims of the '206 patent, and the associated infringement 
findings; (4) the ID's finding that Leviton directly infringes the 
asserted claims of the '320 and '456 patents; (5) the ID's findings on 
indirect infringement of the asserted claims of the '320, '456, and/or 
'153 patents by the accused products of Respondents Leviton, Panduit, 
FS, and Siemon; and (6) the ID's finding that Corning has satisfied the 
economic prong of the domestic industry requirement under section 
337(a)(3)(B) and (C). The Commission has determined not to review any 
other findings presented in the final ID.
    In connection with its review, Commission requests responses to the 
following questions. The parties are requested to brief their positions 
with reference to the applicable law and the existing evidentiary 
record.
    1. To determine whether an imported article, which does not satisfy 
all elements of an asserted patent claim, is an ``article that 
infringes'' within the meaning of section 337 when the respondent-
importer uses the imported article to directly infringe the asserted 
patent claim after importation:
    a. Would it be appropriate for the Commission to consider whether 
there is a sufficient nexus between the imported article and the 
alleged unfair acts?
    b. Would it be appropriate for the Commission to consider the 
following factors: (i) Whether the imported article is a material part 
of the claimed invention, (ii) whether it is especially designed and/or 
configured for use in an infringing manner, (iii) whether it has 
substantial noninfringing uses, and (iv) the extent to which it is 
modified or combined with other articles after importation?
    Please consider the applicable Court and Commission precedent, 
including Suprema, Inc. v. International Trade

[[Page 28892]]

Comm'n, 796 F.3d 1338 (Fed. Cir. 2015), and please apply your analysis 
to the facts of this investigation with respect to Leviton's alleged 
direct infringement of the asserted claims of the '320 and '456 
patents.
    2. With regard to Leviton, please address with citation to the 
record whether any of the U.S.-sourced parts and assembly steps in the 
United States for Leviton's enclosures relate to the claims asserted 
against Leviton.
    3. Please provide citation to any record evidence of sales of the 
accused products by Leviton, Panduit, Siemon, or FS. In addition, 
please discuss the relevance, if any, of such sales in determining 
whether there is direct infringement of the '320, '456, and/or '153 
patents by third-parties.
    4. With citation to the record evidence please discuss whether 
there are any non-infringing uses of the accused products that provide 
at least 98 fiber optic connections per 1U space as required by claim 1 
of the '320 patent or at least 144 fiber optic connections per 1U space 
required by claim 3 of the '320 patent. In addition, please discuss the 
relevance, if any, of such noninfringing uses in assessing the 
knowledge requirement for inducement by Leviton, Panduit, Siemon, and 
FS and in determining whether there is direct infringement of the '320, 
'456, and/or '153 patents by third-parties.
    5. Does the record evidence show that Leviton, Panduit, Siemon, and 
FS copied Corning's EDGE products, including designing and developing 
their accused products to support the same high fiber density as 
Corning's EDGE products and with the goal of capturing EDGE's customers 
and the same segment of the market?
    6. Please address whether the domestic industry investments 
constitute investments in the ``exploitation'' of the asserted patents 
under Section 337(a)(3)(C). See Certain Integrated Circuit Chips and 
Products Containing the Same, Inv. No. 337-TA-859, Comm'n Op., 2014 WL 
12796437 (Aug. 22, 2014).
    7. The Federal Circuit has stated that section 337 does not protect 
mere importers. See, e.g., Schaper Mfg. Co. v. Int'l Trade Comm'n, 717 
F.2d 1368, 1372-73 (Fed. Cir. 1983). Please explain whether 
Complainant's asserted domestic industry differs from that of a mere 
importer, including by discussing: (A) How the Commission and the 
Federal Circuit have considered such investments in prior 
investigations, and (B) how the facts of this investigation should be 
assessed in light of applicable precedent. Also address the extent to 
which the activities relied upon to show satisfaction of the economic 
prong (e.g., field engineering and Pioneer-related expenses) need to 
take place in the United States either as a legal or a practical 
matter, such that those activities would not distinguish a domestic 
industry from a mere importer.
    8. Please address whether and to what extent Schaper Mfg. Co. v. 
Int'l Trade Comm'n, 717 F.2d 1368, 1372-73 (Fed. Cir. 1983), should 
continue to guide the Commission's analysis in light of changes to the 
law and Commission and Federal Circuit precedents since 1983 and the 
legislative history associated with the 1988 amendments to section 337 
discussing the ``inconsistent and unduly narrow'' view of domestic 
industry reflected in certain pre-1988 Commission decisions and 
specifically citing as an example the Commission's decision in Certain 
Miniature, Battery-Operated, All Terrain, Wheeled Vehicles, Inv. No. 
337-TA-122. See, e.g., Certain Solid State Storage Drives, Stacked 
Electronics Components, and Products Containing the Same, Inv. No. 337-
TA-1097, Commission Op. at 9, n.6 (June 29, 2018).
    The parties are invited to brief only the discrete issues requested 
above. The parties are not to brief other issues on review, which are 
adequately presented in the parties' existing filings.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of, inter alia, (1) an exclusion order that 
could result in the exclusion of the subject articles from entry into 
the United States; and/or (2) cease and desist orders that could result 
in the respondents being required to cease and desist from engaging in 
unfair acts in the importation and sale of such articles. Accordingly, 
the Commission is interested in receiving written submissions that 
address the form of remedy, if any, that should be ordered. 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 (Dec. 1994).
    The statute requires the Commission to consider the effects of that 
remedy upon the public interest. The public interest factors the 
Commission will consider include the effect that an exclusion order 
and/or a cease and desist order would have on: (1) The public health 
and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. 
production of articles that are like or directly competitive with those 
that are subject to investigation, and (4) U.S. consumers. The 
Commission is therefore interested in receiving written submissions 
that address the aforementioned public interest factors in the context 
of this investigation.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve, 
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 the investigation are requested 
to file written submissions on the issues identified in this notice. 
The parties' opening submissions should not exceed 80 pages, and their 
reply submissions should not exceed 50 pages. Parties to the 
investigation, interested government agencies, and any other interested 
parties are encouraged to file written submissions on the issues of 
remedy, the public interest, and bonding. Such submissions should 
address the recommended determination by the ALJ on remedy and bonding.
    In their initial submissions, Complainant is also requested to 
identify the remedy sought and Complainant and OUII are requested to 
submit proposed remedial orders for the Commission's consideration. 
Complainant is further requested to state the dates that the Asserted 
Patents expire, to provide the HTSUS subheadings under which the 
accused products are imported, and to supply the identification 
information for all known importers of the products at issue in this 
investigation. The initial written submissions and proposed remedial 
orders must be filed no later than close of business on Monday, June 7, 
2021. Reply submissions must be filed no later than the close of 
business on Monday, June 14, 2021. No further submissions on these 
issues will be permitted unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines

[[Page 28893]]

stated above. The Commission's paper filing requirements in 19 CFR 
210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). 
Submissions should refer to the investigation number (Inv. No. 337-TA-
1194) in a prominent place on the cover page and/or the first page. 
(See Handbook for Electronic Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions 
regarding filing should contact the Secretary, (202) 205-2000.
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. A 
redacted non-confidential version of the document must also be filed 
simultaneously with any confidential filing. 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 nonconfidential written submissions will be available for public 
inspection on EDIS.
    The Commission vote for this determination took place on May 24, 
2021.
    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: May 24, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-11299 Filed 5-27-21; 8:45 am]
BILLING CODE 7020-02-P
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