Certain Tobacco Heating Articles and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Issues Under Review and on Remedy, Public Interest, and Bonding, 41509-41511 [2021-16374]
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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Notices
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1199]
Certain Tobacco Heating Articles and
Components Thereof; Commission
Determination To Review in Part a
Final Initial Determination Finding a
Violation of Section 337; Schedule for
Filing Written Submissions on Issues
Under Review and on Remedy, Public
Interest, and Bonding
International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to review in part a final
initial determination (‘‘FID’’) of the
presiding administrative law judge
(‘‘ALJ’’) finding a violation of section
337 of the Tariff Act of 1930, as
amended, in the above-captioned
investigation. The Commission requests
briefing from the parties on certain
issues under review, as indicated in this
notice. The Commission also requests
briefing from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT:
Lynde Herzbach, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3228. 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
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: On May
15, 2020, the Commission instituted this
investigation under section 337 of the
Tariff Act of 1930, as amended, 19
U.S.C. 1337 (‘‘section 337’’), based on a
complaint filed by RAI Strategic
Holdings, Inc., R.J. Reynolds Vapor
Company, and R.J. Reynolds Tobacco
Company, all of Winston-Salem, North
Carolina (collectively, ‘‘Complainants’’).
See 85 FR 29482–83. The complaint, as
supplemented, alleges a violation of
section 337 based upon the importation
of certain tobacco heating articles and
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SUMMARY:
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components thereof by reason of
infringement of certain claims of U.S.
Patent Nos. 9,839,238 (‘‘the ’238
patent’’); 9,930,915 (‘‘the ’915 patent’’);
9,901,123 (‘‘the ’123 patent)
(collectively, ‘‘the Asserted Patents’’).
The complaint also alleges the existence
of a domestic industry. The notice of
investigation names five respondents:
Altria Client Services LLC, Altria Group,
Inc. (‘‘AGI’’), and Philip Morris USA,
Inc., all of Richmond, Virginia; Philip
Morris International Inc. (‘‘PMI’’) of
New York, New York; and Philip Morris
Products S.A. of Neuchatel, Switzerland
(collectively, ‘‘Respondents’’). See id.
The Office of Unfair Import
Investigations (‘‘OUII’’) is also a party to
the investigation. See id.
The Commission previously
terminated respondents AGI and PMI
from the investigation based on
Complainants’ partial withdrawal of the
complaint. See Order No. 24 (Dec. 14,
2020), unreviewed by Comm’n Notice
(Jan. 5, 2021).
The Commission previously affirmed
an initial determination finding that the
economic prong is satisfied under
section 337(a)(3)(A) (19 U.S.C.
1337(a)(3)(A)) with respect to the ’238
and ’915 patents and provided
supplemental analysis. Order No. 35
(Jan. 19, 2021), affirmed in part by
Comm’n Notice (Feb. 18, 2021). The
Commission took no position on the
finding that the economic prong was
satisfied under section 337(a)(3)(B) (19
U.S.C. 1337(a)(3)(B)). Id.
On May 14, 2021, the presiding ALJ
issued the FID on violation. The FID
finds a violation of section 337 as to the
’915 patent and the ’123 patent by virtue
of Respondents’ infringement of claims
1–3 and 5 of the ’915 patent and claims
27–30 of the ’123 patent. The FID finds
that Complainants did not establish a
violation with respect to the ’238 patent.
In particular, the FID finds that
Respondents failed to show that the
asserted claims of the ’915 and ’123
patents are invalid. The ID further finds
that claim 19 of the ’238 patent is
invalid as anticipated. The FID finds
that the domestic industry requirement
is satisfied for each of the Asserted
Patents.
The Recommended Determination on
Remedy and Bond (‘‘RD’’) recommends
the issuance of a limited exclusion order
barring entry of products that infringe
the asserted claims of the Asserted
Patents. The RD does not recommend
issuing cease and desist orders. The RD
recommends imposing no bond during
the Presidential review period. Finally,
the RD concludes that the public
interest evidence does not weigh against
entry of a remedy.
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41509
On May 28, 2021, Complainants,
Respondents, and OUII each filed
petitions for review of various aspect of
the FID. Specifically, Complainants
filed a petition for review of the FID’s
infringement and validity findings for
the ’238 patent. Respondents filed a
petition for review that challenges
aspects of the FID’s construction of
‘‘electrical energy source’’ recited in
claims 1 and 3 of the ’915 patent.
Respondents also petitioned for review
of the FID’s findings concerning
infringement and invalidity with respect
to the ’915 and ’123 patents, and the
FID’s domestic industry findings for the
’123 patent. Respondents contingently
petitioned for review of the
constructions of ‘‘pressure channel’’ and
‘‘air inlet channel’’ recited in claim 19
of the ’238 patent, as well as the FID’s
infringement findings based on the
alleged incorrect claim constructions.
OUII filed a petition for review of the
constructions of ‘‘pressure channel’’ and
‘‘air inlet channel’’ recited in claim 19
of the ’238 patent, and the FID’s
infringement findings based on the
limitation ‘‘spatially separated’’ recited
in claim 19.
On June 8, 2021, the parties filed their
respective responses to the various
petitions for review. That same day,
Respondents filed a motion to strike-inpart Complainants’ petition for review
to the extent the petition sought review
of the RD. On June 21, 2021,
Complainants filed a response opposing
the motion. OUII did not file a response.
Having examined the record of the
investigation, including the FID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the FID in part, as follows.
As to the ’915 patent, the Commission
has determined to review the ALJ’s
construction of the limitation ‘‘electrical
energy source’’ recited in asserted
claims 1 and 3 and the FID’s
infringement, technical prong, and
invalidity findings to the extent they
may be affected by a modified claim
construction.
As to the ’123 patent, the Commission
has determined to review the FID’s
obviousness and domestic industry
findings, including whether
Complainants have satisfied the
economic prong of the domestic
industry requirement.
As to the ’238 patent, the Commission
has determined to review the FID’s
infringement finding.
The Commission has determined not
to review the remainder of the FID. The
Commission denies Respondents’
motion to strike-in-part Complainants’
petition for review.
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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Notices
The parties are asked to provide
additional briefing on the following
issues:
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With regard to the ’915 patent, please
address whether a construction of the term
‘‘electrical energy source’’ to mean
‘‘receptacle that provides for transmission of
electrical current from the power source to
the heating member, where the receptacle is
not limited to a structure that requires wiring
or insertion,’’ is supported by the intrinsic
and extrinsic evidence. Also, please address
whether this modified claim construction
affects any other findings in the FID
regarding the ’915 patent such as
infringement, domestic industry technical
prong, or invalidity.
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
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). In particular, the written
submissions should address any request
for a cease and desist order 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 Complainants
seek a cease and desist order against any
respondent, the written submissions
should respond to the following
requests:
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17:21 Jul 30, 2021
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(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 Complainants also rely 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 that 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
orders 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. The
submissions should include a
discussion of the RD’s findings on the
public interest.
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. In addition, the
parties to the investigation, interested
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Fmt 4703
Sfmt 4703
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,
Complainants are also requested to
identify the remedy sought and
Complainants and OUII are requested to
submit proposed remedial orders for the
Commission’s consideration.
Complainants are 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 August 10,
2021. Reply submissions must be filed
no later than the close of business on
August 17, 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
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–1199) 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 by marking each document
with a header indicating that the
document contains confidential
information. This marking will be
deemed to satisfy Rules 201.6 and
210.5(e)(2) (19 CFR 201.6 & 210.5(e)(2)).
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
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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Notices
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 July 27,
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: July 27, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–16374 Filed 7–30–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 701–TA–539 and 731–
TA–1280–1282 (Review)]
Heavy Walled Rectangular Welded
Carbon Steel Pipes and Tubes from
Korea, Mexico, and Turkey; Institution
of Five-Year Reviews
United States International
Trade Commission.
ACTION: Notice.
AGENCY:
The Commission hereby gives
notice that it has instituted reviews
pursuant to the Tariff Act of 1930 (‘‘the
Act’’), as amended, to determine
whether revocation of the
countervailing duty order on imports of
heavy walled rectangular welded carbon
steel pipes and tubes from Turkey and
of the antidumping duty orders on
imports of heavy walled rectangular
welded carbon steel pipes and tubes
from Korea, Mexico, and Turkey would
be likely to lead to continuation or
recurrence of material injury. Pursuant
to the Act, interested parties are
requested to respond to this notice by
submitting the information specified
below to the Commission.
DATES: Instituted August 2, 2021. To be
assured of consideration, the deadline
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17:21 Jul 30, 2021
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for responses is September 1, 2021.
Comments on the adequacy of responses
may be filed with the Commission by
October 15, 2021.
FOR FURTHER INFORMATION CONTACT:
Lawrence Jones (202–205–3358), 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
this proceeding may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION:
Background.—On September 13,
2016, the Department of Commerce
(‘‘Commerce’’) issued antidumping duty
orders on imports of heavy walled
rectangular welded carbon steel pipes
and tubes from Korea, Mexico, and
Turkey (81 FR 62865), and a
countervailing duty order on imports
from Turkey (81 FR 62874). The
Commission is conducting reviews
pursuant to section 751(c) of the Act, as
amended (19 U.S.C. 1675(c)), to
determine whether revocation of the
orders would be likely to lead to
continuation or recurrence of material
injury to the domestic industry within
a reasonably foreseeable time.
Provisions concerning the conduct of
this proceeding may be found in the
Commission’s Rules of Practice and
Procedure at 19 CFR part 201, subparts
A and B, and 19 CFR part 207, subparts
A and F. The Commission will assess
the adequacy of interested party
responses to this notice of institution to
determine whether to conduct full
reviews or expedited reviews. The
Commission’s determination in any
expedited review will be based on the
facts available, which may include
information provided in response to this
notice.
Definitions.—The following
definitions apply to this review:
(1) Subject Merchandise is the class or
kind of merchandise that is within the
scope of the five-year review, as defined
by the Department of Commerce.
(2) The Subject Countries in these
reviews are Korea, Mexico, and Turkey.
(3) The Domestic Like Product is the
domestically produced product or
products which are like, or in the
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41511
absence of like, most similar in
characteristics and uses with, the
Subject Merchandise. In its original
determinations, the Commission
defined the Domestic Like Product as
consisting of heavy walled rectangular
welded carbon steel pipes and tubes
that were coextensive with Commerce’s
scope.
(4) The Domestic Industry is the U.S.
producers as a whole of the Domestic
Like Product, or those producers whose
collective output of the Domestic Like
Product constitutes a major proportion
of the total domestic production of the
product. In its original determinations,
the Commission defined the Domestic
Industry as all U.S. producers of heavy
walled rectangular welded carbon steel
pipes and tubes.
(5) The Order Date is the date that the
antidumping and countervailing duty
orders under review became effective. In
these reviews, the Order Date is
September 13, 2016.
(6) An Importer is any person or firm
engaged, either directly or through a
parent company or subsidiary, in
importing the Subject Merchandise into
the United States from a foreign
manufacturer or through its selling
agent.
Participation in the proceeding and
public service list.—Persons, including
industrial users of the Subject
Merchandise and, if the merchandise is
sold at the retail level, representative
consumer organizations, wishing to
participate in the proceeding as parties
must file an entry of appearance with
the Secretary to the Commission, as
provided in § 201.11(b)(4) of the
Commission’s rules, no later than 21
days after publication of this notice in
the Federal Register. The Secretary will
maintain a public service list containing
the names and addresses of all persons,
or their representatives, who are parties
to the proceeding.
Former Commission employees who
are seeking to appear in Commission
five-year reviews are advised that they
may appear in a review even if they
participated personally and
substantially in the corresponding
underlying original investigation or an
earlier review of the same underlying
investigation. The Commission’s
designated agency ethics official has
advised that a five-year review is not the
same particular matter as the underlying
original investigation, and a five-year
review is not the same particular matter
as an earlier review of the same
underlying investigation for purposes of
18 U.S.C. 207, the post-employment
statute for Federal employees, and
Commission rule 201.15(b) (19 CFR
201.15(b)), 79 FR 3246 (Jan. 17, 2014),
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]]>Agencies
[Federal Register Volume 86, Number 145 (Monday, August 2, 2021)]
[Notices]
[Pages 41509-41511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16374]
[[Page 41509]]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1199]
Certain Tobacco Heating Articles and Components Thereof;
Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Schedule for Filing
Written Submissions on Issues Under Review and on Remedy, Public
Interest, and Bonding
AGENCY: International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part a final
initial determination (``FID'') of the presiding administrative law
judge (``ALJ'') finding a violation of section 337 of the Tariff Act of
1930, as amended, in the above-captioned investigation. The Commission
requests briefing from the parties on certain issues under review, as
indicated in this notice. The Commission also requests briefing from
the parties, interested government agencies, and interested persons on
the issues of remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3228. 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 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: On May 15, 2020, the Commission instituted
this investigation under section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``section 337''), based on a complaint filed
by RAI Strategic Holdings, Inc., R.J. Reynolds Vapor Company, and R.J.
Reynolds Tobacco Company, all of Winston-Salem, North Carolina
(collectively, ``Complainants''). See 85 FR 29482-83. The complaint, as
supplemented, alleges a violation of section 337 based upon the
importation of certain tobacco heating articles and components thereof
by reason of infringement of certain claims of U.S. Patent Nos.
9,839,238 (``the '238 patent''); 9,930,915 (``the '915 patent'');
9,901,123 (``the '123 patent) (collectively, ``the Asserted Patents'').
The complaint also alleges the existence of a domestic industry. The
notice of investigation names five respondents: Altria Client Services
LLC, Altria Group, Inc. (``AGI''), and Philip Morris USA, Inc., all of
Richmond, Virginia; Philip Morris International Inc. (``PMI'') of New
York, New York; and Philip Morris Products S.A. of Neuchatel,
Switzerland (collectively, ``Respondents''). See id. The Office of
Unfair Import Investigations (``OUII'') is also a party to the
investigation. See id.
The Commission previously terminated respondents AGI and PMI from
the investigation based on Complainants' partial withdrawal of the
complaint. See Order No. 24 (Dec. 14, 2020), unreviewed by Comm'n
Notice (Jan. 5, 2021).
The Commission previously affirmed an initial determination finding
that the economic prong is satisfied under section 337(a)(3)(A) (19
U.S.C. 1337(a)(3)(A)) with respect to the '238 and '915 patents and
provided supplemental analysis. Order No. 35 (Jan. 19, 2021), affirmed
in part by Comm'n Notice (Feb. 18, 2021). The Commission took no
position on the finding that the economic prong was satisfied under
section 337(a)(3)(B) (19 U.S.C. 1337(a)(3)(B)). Id.
On May 14, 2021, the presiding ALJ issued the FID on violation. The
FID finds a violation of section 337 as to the '915 patent and the '123
patent by virtue of Respondents' infringement of claims 1-3 and 5 of
the '915 patent and claims 27-30 of the '123 patent. The FID finds that
Complainants did not establish a violation with respect to the '238
patent. In particular, the FID finds that Respondents failed to show
that the asserted claims of the '915 and '123 patents are invalid. The
ID further finds that claim 19 of the '238 patent is invalid as
anticipated. The FID finds that the domestic industry requirement is
satisfied for each of the Asserted Patents.
The Recommended Determination on Remedy and Bond (``RD'')
recommends the issuance of a limited exclusion order barring entry of
products that infringe the asserted claims of the Asserted Patents. The
RD does not recommend issuing cease and desist orders. The RD
recommends imposing no bond during the Presidential review period.
Finally, the RD concludes that the public interest evidence does not
weigh against entry of a remedy.
On May 28, 2021, Complainants, Respondents, and OUII each filed
petitions for review of various aspect of the FID. Specifically,
Complainants filed a petition for review of the FID's infringement and
validity findings for the '238 patent. Respondents filed a petition for
review that challenges aspects of the FID's construction of
``electrical energy source'' recited in claims 1 and 3 of the '915
patent. Respondents also petitioned for review of the FID's findings
concerning infringement and invalidity with respect to the '915 and
'123 patents, and the FID's domestic industry findings for the '123
patent. Respondents contingently petitioned for review of the
constructions of ``pressure channel'' and ``air inlet channel'' recited
in claim 19 of the '238 patent, as well as the FID's infringement
findings based on the alleged incorrect claim constructions. OUII filed
a petition for review of the constructions of ``pressure channel'' and
``air inlet channel'' recited in claim 19 of the '238 patent, and the
FID's infringement findings based on the limitation ``spatially
separated'' recited in claim 19.
On June 8, 2021, the parties filed their respective responses to
the various petitions for review. That same day, Respondents filed a
motion to strike-in-part Complainants' petition for review to the
extent the petition sought review of the RD. On June 21, 2021,
Complainants filed a response opposing the motion. OUII did not file a
response.
Having examined the record of the investigation, including the FID,
the petitions for review, and the responses thereto, the Commission has
determined to review the FID in part, as follows.
As to the '915 patent, the Commission has determined to review the
ALJ's construction of the limitation ``electrical energy source''
recited in asserted claims 1 and 3 and the FID's infringement,
technical prong, and invalidity findings to the extent they may be
affected by a modified claim construction.
As to the '123 patent, the Commission has determined to review the
FID's obviousness and domestic industry findings, including whether
Complainants have satisfied the economic prong of the domestic industry
requirement.
As to the '238 patent, the Commission has determined to review the
FID's infringement finding.
The Commission has determined not to review the remainder of the
FID. The Commission denies Respondents' motion to strike-in-part
Complainants' petition for review.
[[Page 41510]]
The parties are asked to provide additional briefing on the
following issues:
With regard to the '915 patent, please address whether a
construction of the term ``electrical energy source'' to mean
``receptacle that provides for transmission of electrical current
from the power source to the heating member, where the receptacle is
not limited to a structure that requires wiring or insertion,'' is
supported by the intrinsic and extrinsic evidence. Also, please
address whether this modified claim construction affects any other
findings in the FID regarding the '915 patent such as infringement,
domestic industry technical prong, or invalidity.
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
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). In particular, the written submissions should
address any request for a cease and desist order 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
Complainants seek a cease and desist order against any 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
Complainants also rely 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 that
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 orders 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. The submissions should include a discussion of
the RD's findings on the public interest.
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. In
addition, the 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, Complainants are also requested to
identify the remedy sought and Complainants and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainants are 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 August 10,
2021. Reply submissions must be filed no later than the close of
business on August 17, 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 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-1199) 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 by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy Rules 201.6 and
210.5(e)(2) (19 CFR 201.6 & 210.5(e)(2)). 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
[[Page 41511]]
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 July 27,
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: July 27, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-16374 Filed 7-30-21; 8:45 am]
BILLING CODE 7020-02-P
