Certain Tobacco Heating Articles and Components Thereof; Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 54998-54999 [2021-21626]

Download as PDF lotter on DSK11XQN23PROD with NOTICES1 54998 Federal Register / Vol. 86, No. 190 / Tuesday, October 5, 2021 / Notices Secretary will prepare a public service list containing the names and addresses of all persons, or their representatives, who are parties to these investigations upon the expiration of the period for filing entries of appearance. Limited disclosure of business proprietary information (BPI) under an administrative protective order (APO) and BPI service list.—Pursuant to § 207.7(a) of the Commission’s rules, the Secretary will make BPI gathered in these investigations available to authorized applicants representing interested parties (as defined in 19 U.S.C. 1677(9)) who are parties to the investigations under the APO issued in the investigations, provided that the application is made not later than seven days after the publication of this notice in the Federal Register. A separate service list will be maintained by the Secretary for those parties authorized to receive BPI under the APO. Conference.—In light of the restrictions on access to the Commission building due to the COVID–19 pandemic, the Commission is conducting the staff conference through video conferencing on October 20, 2021. Requests to appear at the conference should be emailed to preliminaryconferences@usitc.gov (DO NOT FILE ON EDIS) on or before October 18, 2021. Please provide an email address for each conference participant in the email. Information on conference procedures will be provided separately and guidance on joining the video conference will be available on the Commission’s Daily Calendar. A nonparty who has testimony that may aid the Commission’s deliberations may request permission to participate by submitting a short statement. 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. Written submissions.—As provided in §§ 201.8 and 207.15 of the Commission’s rules, any person may submit to the Commission on or before October 25, 2021, a written brief containing information and arguments pertinent to the subject matter of the investigations. Parties shall file written testimony and supplementary material in connection with their presentation at the conference no later than noon on October 19, 2021. All written submissions must conform with the provisions of § 201.8 of the Commission’s rules; any submissions VerDate Sep<11>2014 18:56 Oct 04, 2021 Jkt 256001 that contain BPI must also conform with the requirements of §§ 201.6, 207.3, and 207.7 of the Commission’s rules. The Commission’s Handbook on Filing Procedures, available on the Commission’s website at https:// www.usitc.gov/documents/handbook_ on_filing_procedures.pdf, elaborates upon the Commission’s procedures with respect to filings. In accordance with §§ 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (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. Certification.—Pursuant to § 207.3 of the Commission’s rules, any person submitting information to the Commission in connection with these investigations must certify that the information is accurate and complete to the best of the submitter’s knowledge. In making the certification, the submitter will acknowledge that any information that it submits to the Commission during these investigations 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 these or related investigations or reviews, 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. Authority: These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.12 of the Commission’s rules. By order of the Commission. Dated: September 30, 2021. Lisa Barton, Secretary to the Commission. [FR Doc. 2021–21725 Filed 10–4–21; 8:45 am] BILLING CODE 7020–02–P PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–1199] Certain Tobacco Heating Articles and Components Thereof; Commission’s Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission (‘‘Commission’’) has found a violation of section 337 of the Tariff Act of 1930, as amended, in this investigation and has issued a limited exclusion order prohibiting the importation of infringing tobacco heating articles and components thereof and cease and desist orders directed against respondents Philip Morris USA, Inc. (‘‘PM USA’’) and Altria Client Services LLC (‘‘ACS’’). The investigation is terminated. 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 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’’); SUMMARY: E:\FR\FM\05OCN1.SGM 05OCN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 86, No. 190 / Tuesday, October 5, 2021 / Notices 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: ACS Altria Group, Inc. (‘‘AGI’’), and PM USA, 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 that the economic prong of the domestic industry requirement is satisfied under 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 Notice (Feb. 18, 2021). On May 14, 2021, the presiding ALJ issued the final initial determination on violation (‘‘FID’’), which finds a violation of section 337 based on infringement of the ’123 patent and the ’915 patent and finds no violation as to the ’238 patent. On June 15, 2021, both Complainants and Respondents filed submissions on the public interest pursuant to Commission Rule 210.50(a)(4). OUII did not file a statement on the public interest. The Commission also received seven filings in response to its Federal Register notice calling for public interest comments. See 86 FR 28382 (May 16, 2021). On July 27, 2021, the Commission determined to review the FID in part. 86 FR 41509–11 (Aug. 2, 2021). Specifically, the Commission determined to review: (1) As to the ’915 patent, 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; (2) as to the ’123 patent, the FID’s obviousness and domestic industry findings; and (3) as to the ’238 patent, the FID’s infringement finding. Id. The Commission also asked the parties to address a question related to the issues under review regarding the ’915 patent. Id. The Commission further requested briefing on remedy, bonding, and the public interest. Id. On August 10, 2021, Complainants, Respondents, and OUII each filed an VerDate Sep<11>2014 18:56 Oct 04, 2021 Jkt 256001 initial written response to the Commission’s request for briefing. On August 17, 2021, Complainants and Respondents each filed a reply submission. On August 20, 2021, OUII filed its reply submission. On August 5, 6, 9, and 10, 2021, twenty-nine members of the public submitted public interest submissions. On August 9, 2021, the Hispanic Leadership Fund and the National Minority Quality Form filed public interest submissions. On August 10, 2021, Nextera Healthcare filed a public interest submission. On August 11, 2021, Tom Miller, the Attorney General of Iowa, filed a public interest submission. On September 13, 2021, Respondents filed Respondents’ Motion to Take Judicial Notice of Recent Regulatory Determinations and District Court Opinion. On September 15, 2021, Complainants filed Complainants’ Opposition to Respondents’ Motion to Take Judicial Notice of Recent Regulatory Determinations and District Court Opinion. The Commission has determined to deny the motion, but has considered the parties’ submissions in its consideration of the public interest factors. Having reviewed the record of the investigation, including the FID and the parties’ submissions, the Commission has found a violation of section 337 as to claims 1–3, and 5 of the ’915 patent and claims 27–30 of the ’123 patent. Specifically, with respect to the ’915 patent, the Commission has determined to: (1) Modify the construction of the limitation ‘‘electrical energy source’’ recited in asserted claims 1 and 3 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’’; and (2) affirm the FID’s findings as to infringement, technical prong, and invalidity findings under the modified claim construction. With respect to the ’123 patent, the Commission has determined to: (1) Affirm, with supplemental analysis, the FID’s finding that Respondents failed to prove claims 27–30 of the ’123 patent are invalid for obviousness under 35 U.S.C. 103; and (2) take no position as to the FID’s findings with respect to the economic prong of the domestic industry requirement under subsection 337(a)(3)(A). The Commission has further determined to affirm the FID’s non-infringement finding for the ’238 patent. The Commission has determined that the appropriate remedy is: (1) A limited exclusion order prohibiting the PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 54999 importation of tobacco heating articles and components thereof that infringe claims 1–3, and 5 of the ’915 patent and claims 27–30 of the ’123 patent; and (2) cease and desist orders directed to respondents PM USA and ACS. The Commission has determined that the public interest factors do not preclude issuance of the limited exclusion order or the cease and desist orders. The Commission has further determined that no bond is required during the period of Presidential review. See 19 U.S.C. 1337(j)(3). The investigation is terminated. The Commission’s reasoning in support of its determinations is set forth more fully in its opinion. The Commission’s orders and opinion were delivered to the President and the United States Trade Representative on the day of their issuance. The Commission vote for this determination took place on September 29, 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: September 29, 2021. Lisa Barton, Secretary to the Commission. [FR Doc. 2021–21626 Filed 10–4–21; 8:45 am] BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled Certain Barcode Scanners, Mobile Computers with Barcode Scanning Capabilities, Scan Engines, and Components Thereof, DN 3570; the Commission is soliciting comments on any public interest issues raised by the complaint or complainant’s filing pursuant to the Commission’s Rules of Practice and Procedure. FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be SUMMARY: E:\FR\FM\05OCN1.SGM 05OCN1

Agencies

[Federal Register Volume 86, Number 190 (Tuesday, October 5, 2021)]
[Notices]
[Pages 54998-54999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21626]


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

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1199]


Certain Tobacco Heating Articles and Components Thereof; 
Commission's Final Determination Finding a Violation of Section 337; 
Issuance of a Limited Exclusion Order and Cease and Desist Orders; 
Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``Commission'') has found a violation of section 337 of the 
Tariff Act of 1930, as amended, in this investigation and has issued a 
limited exclusion order prohibiting the importation of infringing 
tobacco heating articles and components thereof and cease and desist 
orders directed against respondents Philip Morris USA, Inc. (``PM 
USA'') and Altria Client Services LLC (``ACS''). The investigation is 
terminated.

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'');

[[Page 54999]]

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: ACS Altria Group, Inc. 
(``AGI''), and PM USA, 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 that the economic prong of the 
domestic industry requirement is satisfied under 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 Notice (Feb. 18, 2021).
    On May 14, 2021, the presiding ALJ issued the final initial 
determination on violation (``FID''), which finds a violation of 
section 337 based on infringement of the '123 patent and the '915 
patent and finds no violation as to the '238 patent.
    On June 15, 2021, both Complainants and Respondents filed 
submissions on the public interest pursuant to Commission Rule 
210.50(a)(4). OUII did not file a statement on the public interest. The 
Commission also received seven filings in response to its Federal 
Register notice calling for public interest comments. See 86 FR 28382 
(May 16, 2021).
    On July 27, 2021, the Commission determined to review the FID in 
part. 86 FR 41509-11 (Aug. 2, 2021). Specifically, the Commission 
determined to review: (1) As to the '915 patent, 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; (2) as to the '123 patent, the FID's obviousness 
and domestic industry findings; and (3) as to the '238 patent, the 
FID's infringement finding. Id. The Commission also asked the parties 
to address a question related to the issues under review regarding the 
'915 patent. Id. The Commission further requested briefing on remedy, 
bonding, and the public interest. Id.
    On August 10, 2021, Complainants, Respondents, and OUII each filed 
an initial written response to the Commission's request for briefing. 
On August 17, 2021, Complainants and Respondents each filed a reply 
submission. On August 20, 2021, OUII filed its reply submission.
    On August 5, 6, 9, and 10, 2021, twenty-nine members of the public 
submitted public interest submissions. On August 9, 2021, the Hispanic 
Leadership Fund and the National Minority Quality Form filed public 
interest submissions. On August 10, 2021, Nextera Healthcare filed a 
public interest submission. On August 11, 2021, Tom Miller, the 
Attorney General of Iowa, filed a public interest submission.
    On September 13, 2021, Respondents filed Respondents' Motion to 
Take Judicial Notice of Recent Regulatory Determinations and District 
Court Opinion. On September 15, 2021, Complainants filed Complainants' 
Opposition to Respondents' Motion to Take Judicial Notice of Recent 
Regulatory Determinations and District Court Opinion. The Commission 
has determined to deny the motion, but has considered the parties' 
submissions in its consideration of the public interest factors.
    Having reviewed the record of the investigation, including the FID 
and the parties' submissions, the Commission has found a violation of 
section 337 as to claims 1-3, and 5 of the '915 patent and claims 27-30 
of the '123 patent. Specifically, with respect to the '915 patent, the 
Commission has determined to: (1) Modify the construction of the 
limitation ``electrical energy source'' recited in asserted claims 1 
and 3 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''; and (2) affirm the FID's findings as to infringement, 
technical prong, and invalidity findings under the modified claim 
construction. With respect to the '123 patent, the Commission has 
determined to: (1) Affirm, with supplemental analysis, the FID's 
finding that Respondents failed to prove claims 27-30 of the '123 
patent are invalid for obviousness under 35 U.S.C. 103; and (2) take no 
position as to the FID's findings with respect to the economic prong of 
the domestic industry requirement under subsection 337(a)(3)(A). The 
Commission has further determined to affirm the FID's non-infringement 
finding for the '238 patent.
    The Commission has determined that the appropriate remedy is: (1) A 
limited exclusion order prohibiting the importation of tobacco heating 
articles and components thereof that infringe claims 1-3, and 5 of the 
'915 patent and claims 27-30 of the '123 patent; and (2) cease and 
desist orders directed to respondents PM USA and ACS. The Commission 
has determined that the public interest factors do not preclude 
issuance of the limited exclusion order or the cease and desist orders. 
The Commission has further determined that no bond is required during 
the period of Presidential review. See 19 U.S.C. 1337(j)(3).
    The investigation is terminated. The Commission's reasoning in 
support of its determinations is set forth more fully in its opinion. 
The Commission's orders and opinion were delivered to the President and 
the United States Trade Representative on the day of their issuance.
    The Commission vote for this determination took place on September 
29, 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: September 29, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-21626 Filed 10-4-21; 8:45 am]
BILLING CODE 7020-02-P