Certain Artificial Eyelash Extension Systems, Products, and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions on Issues Under Review and on Remedy, Public Interest, and Bonding; Extension of Target Date, 4044-4046 [2022-01457]
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issuance of the relief specifically
requested by the complainant in this
investigation would affect the public
health and welfare in the United States,
competitive conditions in the United
States economy, the production of like
or directly competitive articles in the
United States, or United States
consumers.
In particular, the Commission is
interested in comments that:
(i) Explain how the articles
potentially subject to the requested
remedial orders are used in the United
States;
(ii) identify any public health, safety,
or welfare concerns in the United States
relating to the requested remedial
orders;
(iii) identify like or directly
competitive articles that complainant,
its licensees, or third parties make in the
United States which could replace the
subject articles if they were to be
excluded;
(iv) indicate whether complainant,
complainant’s licensees, and/or third
party suppliers have the capacity to
replace the volume of articles
potentially subject to the requested
exclusion order and/or a cease and
desist order within a commercially
reasonable time; and
(v) explain how the requested
remedial orders would impact United
States consumers.
Written submissions on the public
interest must be filed no later than by
close of business, eight calendar days
after the date of publication of this
notice in the Federal Register. There
will be further opportunities for
comment on the public interest after the
issuance of any final initial
determination in this investigation. Any
written submissions on other issues
must also be filed by no later than the
close of business, eight calendar days
after publication of this notice in the
Federal Register. Complainant may file
replies to any written submissions no
later than three calendar days after the
date on which any initial submissions
were due. No other submissions will be
accepted, unless requested by the
Commission. Any submissions and
replies filed in response to this Notice
are limited to five (5) pages in length,
inclusive of attachments.
Persons filing written submissions
must file the original document
electronically on or before the deadlines
stated above. Submissions should refer
to the docket number (‘‘Docket No.
3599’’) in a prominent place on the
cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, Electronic Filing
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Procedures 1). 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. Persons with questions
regarding filing should contact the
Secretary at EDIS3Help@usitc.gov.
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this Investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel,2 solely for cybersecurity
purposes. All nonconfidential written
submissions will be available for public
inspection at the Office of the Secretary
and on EDIS.3
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and of §§ 201.10 and 210.8(c) of the
Commission’s Rules of Practice and
Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Issued: January 20, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–01438 Filed 1–25–22; 8:45 am]
BILLING CODE 7020–02–P
1 Handbook for Electronic Filing Procedures:
https://www.usitc.gov/documents/handbook_on_
filing_procedures.pdf.
2 All contract personnel will sign appropriate
nondisclosure agreements.
3 Electronic Document Information System
(EDIS): https://edis.usitc.gov.
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INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1226]
Certain Artificial Eyelash Extension
Systems, Products, and Components
Thereof; Commission Determination
To Review in Part a Final Initial
Determination Finding No Violation of
Section 337; Schedule for Filing
Written Submissions on Issues Under
Review and on Remedy, Public
Interest, and Bonding; Extension of
Target Date
U.S. 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 chief administrative law judge
(‘‘ALJ’’) finding no 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. The
Commission has also determined to
extend the target date in the abovecaptioned investigation to April 27,
2022.
SUMMARY:
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
October 28, 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
Lashify, Inc. of Glendale, California
(‘‘Lashify’’). See 85 FR 68366–67. The
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complaint, as supplemented, alleges a
violation of section 337 based upon the
importation into the United States, sale
for importation, or sale after importation
into the United States of certain
artificial eyelash extension systems,
products, and components thereof by
reason of infringement of certain claims
of U.S. Patent Nos. 10,660,388 (‘‘the
’388 patent’’) and 10,721,984 (‘‘the ’984
patent’’), and the sole claim of U.S.
Design Patent Nos. D877,416 (‘‘the
D’416 patent’’) and D867,664 (‘‘the
D’664 patent’’), respectively
(collectively, the ‘‘Asserted Patents’’).
The complaint also alleges the existence
of a domestic industry. The notice of
investigation (‘‘NOI’’) names nine
respondents, including: KISS Nail
Products, Inc. of Port Washington, New
York (‘‘KISS’’); Ulta Beauty, Inc. of
Bolingbrook, Illinois (‘‘Ulta’’); CVS
Health Corporation of Woonsocket,
Rhode Island (‘‘CVS’’); Walmart, Inc. of
Bentonville, Arkansas (‘‘Walmart’’);
Qingdao Hollyren Cosmetics Co., Ltd. d/
b/a Hollyren of Shandong Province,
China; Qingdao Xizi International
Trading Co., Ltd. d/b/a Xizi Lashes of
Shandong Province, China; Qingdao
LashBeauty Cosmetic Co., Ltd. d/b/a
Worldbeauty of Qingdao, China; Alicia
Zeng d/b/a Lilac St. and Artemis Family
Beginnings, Inc. of San Francisco,
California; and Rachael Gleason d/b/a
Avant Garde Beauty Co. of Dallas,
Texas. Id. The Office of Unfair Import
Investigations is also a party to the
investigation. Id.
The Commission later amended the
complaint and NOI to substitute CVS
Pharmacy, Inc. of Woonsocket, Rhode
Island in place of named respondent
CVS Health Corporation and Ulta Salon,
Cosmetics & Fragrance, Inc. of
Bolingbrook, Illinois in place of named
respondent Ulta Beauty, Inc. See Order
No. 10, unreviewed by Comm’n Notice
(Feb. 10, 2021); see also 86 FR 9535
(Feb. 16, 2021).
The Commission previously
terminated the investigation as to claims
2–4 and 7 of the ’388 patent and claims
6–8, 12, 18–19, 25–26, and 29 of the
’984 patent based on Complainant’s
partial withdrawal of the complaint. See
Order No. 24 (Apr. 23, 2021),
unreviewed by Comm’n Notice (May 11,
2021). The Commission also previously
terminated claims 2–5, 10–11, 14, 17,
21–22, and 24 of the ’984 patent from
the investigation. See Order No. 38
(June 22, 2021), unreviewed by Comm’n
Notice (July 6, 2021).
The Commission previously
terminated Rachael Gleason d/b/a Avant
Garde Beauty Company from the
investigation based on a Consent Order.
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See Order No. 28, unreviewed by
Comm’n Notice (May 20, 2021).
The Commission previously
determined that Lashify failed to satisfy
the technical prong of the domestic
industry requirement for the ’388
patent, thus terminating that patent
from the investigation. See Order No.
35, unreviewed by Comm’n Notice (July
9, 2021).
On October 28, 2021, the presiding
ALJ issued the FID, finding that no
violation of section 337 has occurred in
the importation into the United States,
the sale for importation, or the sale
within the United States after
importation, of certain artificial eyelash
extension systems, products, and
components thereof. FID at 141–142.
The FID finds that two accused products
infringe the ’984 patent, the’984 patent
is not invalid, and Lashify has failed to
satisfy the technical prong of the
domestic industry requirement with
respect to the ’984 patent. The FID
further finds that the D’416 patent and
D’664 patent are infringed and not
invalid, and Lashify satisfied the
technical prong with respect to both
design patents. The FID further finds
that Lashify has failed to satisfy the
economic prong of the domestic
industry requirement with respect to all
of the Asserted Patents remaining in the
investigation. The FID also includes the
ALJ’s recommended determination on
remedy and bonding should the
Commission find a violation of section
337. Specifically, the ALJ recommended
a limited exclusion order directed to
certain artificial eyelash extension
systems, products, and components
thereof, and cease and desist orders
directed to KISS, Ulta, CVS, and
Walmart.
On November 9, 2021, Lashify filed a
petition for review of the FID’s findings
of non-infringement, that Lashify has
failed to satisfy the technical prong of
the domestic industry requirement with
respect to the ’984 patent, and that
Lashify has not satisfied the economic
prong of the domestic industry
requirement with respect to any of the
patents-in-suit. That same day,
Respondents filed a contingent petition
seeking review of alleged additional,
independent grounds of noninfringement and invalidity to support
the FID’s finding of no violation.
On November 17, 2021, Lashify,
Respondents, and OUII filed their
respective responses to the petitions for
review.
On November 29, 2021, respondents
KISS, Ulta, Walmart, and CVS filed a
joint submission on the public interest
pursuant to Commission Rule
210.50(a)(4) (19 CFR 210.50 (a)(4)).
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4045
Lashify and OUII did not file a
statement on the public interest. No
submissions were received in response
to the Commission notice seeking public
interest submissions. 86 FR 62844–45
(Nov. 12, 2021).
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. In particular,
as to the ’984 patent, the Commission
has determined to review: (1) The FID’s
findings regarding the technical prong
of the domestic industry requirement;
and (2) the FID’s findings that the
asserted claims of the ’984 patent are
not invalid as obvious. The Commission
has further determined to review the
FID’s findings regarding the economic
prong of the domestic industry
requirement. The Commission has
determined not to review the remainder
of the FID.
The Commission has also determined
to extend the target date for completing
this investigation until April 27, 2022.
In connection with its review, the
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) Please discuss whether
Complainant should be considered a
mere importer when its domestic
activities and investments are evaluated
as a whole with respect to the asserted
patents, rather than when its domestic
activities and investments are evaluated
in a ‘‘line-by-line’’ approach, with
citation to the record evidence.
(2) To the extent Complainant is not
a mere importer and certain domestic
activities and investments with respect
to the asserted patents excluded by the
FID (see e.g., certain warehousing/
distribution, quality control, and/or
sales and marketing expenditures)
should be credited as cognizable
domestic industry investments, please
discuss whether Complainant’s
cognizable domestic industry
investments are significant or
substantial within the meaning of
section 337(a)(3)(A)–(C), with citation to
record evidence. Please be sure to
provide your explanation and data
separately for each asserted patent.
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
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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 Complainant
seeks a cease and desist order, the
written submissions should respond to
the following requests:
(1) Please identify with citations to
the record any information regarding
commercially significant inventory in
the United States as to each respondent
against whom a cease and desist order
is sought. If Complainant also relies on
other significant domestic operations
that could undercut the remedy
provided by an exclusion order, please
identify with citations to the record
such information as to each respondent
against whom a cease and desist order
is sought.
(2) In relation to the infringing
products, please identify any
information in the record, including
allegations in the pleadings, that
addresses the existence of any domestic
inventory, any domestic operations, or
any sales-related activity directed at the
United States for each respondent
against whom a cease and desist order
is sought.
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.
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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. 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,
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
remaining in the investigation 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 February 3, 2022. Reply
submissions must be filed no later than
the close of business on February 10,
2022. 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
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refer to the investigation number (Inv.
No. 337–TA–1226) 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 the request procedure
set forth in Rules 201.6(b) and
210.5(e)(2) (19 CFR 201.6(b) &
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
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 January 20,
2022.
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: January 20, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–01457 Filed 1–25–22; 8:45 am]
BILLING CODE 7020–02–P
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[Federal Register Volume 87, Number 17 (Wednesday, January 26, 2022)]
[Notices]
[Pages 4044-4046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01457]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1226]
Certain Artificial Eyelash Extension Systems, Products, and
Components Thereof; Commission Determination To Review in Part a Final
Initial Determination Finding No Violation of Section 337; Schedule for
Filing Written Submissions on Issues Under Review and on Remedy, Public
Interest, and Bonding; Extension of Target Date
AGENCY: U.S. 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 chief administrative
law judge (``ALJ'') finding no 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. The Commission has also determined to extend the target date
in the above-captioned investigation to April 27, 2022.
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 October 28, 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 Lashify, Inc. of Glendale, California (``Lashify'').
See 85 FR 68366-67. The
[[Page 4045]]
complaint, as supplemented, alleges a violation of section 337 based
upon the importation into the United States, sale for importation, or
sale after importation into the United States of certain artificial
eyelash extension systems, products, and components thereof by reason
of infringement of certain claims of U.S. Patent Nos. 10,660,388 (``the
'388 patent'') and 10,721,984 (``the '984 patent''), and the sole claim
of U.S. Design Patent Nos. D877,416 (``the D'416 patent'') and D867,664
(``the D'664 patent''), respectively (collectively, the ``Asserted
Patents''). The complaint also alleges the existence of a domestic
industry. The notice of investigation (``NOI'') names nine respondents,
including: KISS Nail Products, Inc. of Port Washington, New York
(``KISS''); Ulta Beauty, Inc. of Bolingbrook, Illinois (``Ulta''); CVS
Health Corporation of Woonsocket, Rhode Island (``CVS''); Walmart, Inc.
of Bentonville, Arkansas (``Walmart''); Qingdao Hollyren Cosmetics Co.,
Ltd. d/b/a Hollyren of Shandong Province, China; Qingdao Xizi
International Trading Co., Ltd. d/b/a Xizi Lashes of Shandong Province,
China; Qingdao LashBeauty Cosmetic Co., Ltd. d/b/a Worldbeauty of
Qingdao, China; Alicia Zeng d/b/a Lilac St. and Artemis Family
Beginnings, Inc. of San Francisco, California; and Rachael Gleason d/b/
a Avant Garde Beauty Co. of Dallas, Texas. Id. The Office of Unfair
Import Investigations is also a party to the investigation. Id.
The Commission later amended the complaint and NOI to substitute
CVS Pharmacy, Inc. of Woonsocket, Rhode Island in place of named
respondent CVS Health Corporation and Ulta Salon, Cosmetics &
Fragrance, Inc. of Bolingbrook, Illinois in place of named respondent
Ulta Beauty, Inc. See Order No. 10, unreviewed by Comm'n Notice (Feb.
10, 2021); see also 86 FR 9535 (Feb. 16, 2021).
The Commission previously terminated the investigation as to claims
2-4 and 7 of the '388 patent and claims 6-8, 12, 18-19, 25-26, and 29
of the '984 patent based on Complainant's partial withdrawal of the
complaint. See Order No. 24 (Apr. 23, 2021), unreviewed by Comm'n
Notice (May 11, 2021). The Commission also previously terminated claims
2-5, 10-11, 14, 17, 21-22, and 24 of the '984 patent from the
investigation. See Order No. 38 (June 22, 2021), unreviewed by Comm'n
Notice (July 6, 2021).
The Commission previously terminated Rachael Gleason d/b/a Avant
Garde Beauty Company from the investigation based on a Consent Order.
See Order No. 28, unreviewed by Comm'n Notice (May 20, 2021).
The Commission previously determined that Lashify failed to satisfy
the technical prong of the domestic industry requirement for the '388
patent, thus terminating that patent from the investigation. See Order
No. 35, unreviewed by Comm'n Notice (July 9, 2021).
On October 28, 2021, the presiding ALJ issued the FID, finding that
no violation of section 337 has occurred in the importation into the
United States, the sale for importation, or the sale within the United
States after importation, of certain artificial eyelash extension
systems, products, and components thereof. FID at 141-142. The FID
finds that two accused products infringe the '984 patent, the'984
patent is not invalid, and Lashify has failed to satisfy the technical
prong of the domestic industry requirement with respect to the '984
patent. The FID further finds that the D'416 patent and D'664 patent
are infringed and not invalid, and Lashify satisfied the technical
prong with respect to both design patents. The FID further finds that
Lashify has failed to satisfy the economic prong of the domestic
industry requirement with respect to all of the Asserted Patents
remaining in the investigation. The FID also includes the ALJ's
recommended determination on remedy and bonding should the Commission
find a violation of section 337. Specifically, the ALJ recommended a
limited exclusion order directed to certain artificial eyelash
extension systems, products, and components thereof, and cease and
desist orders directed to KISS, Ulta, CVS, and Walmart.
On November 9, 2021, Lashify filed a petition for review of the
FID's findings of non-infringement, that Lashify has failed to satisfy
the technical prong of the domestic industry requirement with respect
to the '984 patent, and that Lashify has not satisfied the economic
prong of the domestic industry requirement with respect to any of the
patents-in-suit. That same day, Respondents filed a contingent petition
seeking review of alleged additional, independent grounds of non-
infringement and invalidity to support the FID's finding of no
violation.
On November 17, 2021, Lashify, Respondents, and OUII filed their
respective responses to the petitions for review.
On November 29, 2021, respondents KISS, Ulta, Walmart, and CVS
filed a joint submission on the public interest pursuant to Commission
Rule 210.50(a)(4) (19 CFR 210.50 (a)(4)). Lashify and OUII did not file
a statement on the public interest. No submissions were received in
response to the Commission notice seeking public interest submissions.
86 FR 62844-45 (Nov. 12, 2021).
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. In particular, as to the '984
patent, the Commission has determined to review: (1) The FID's findings
regarding the technical prong of the domestic industry requirement; and
(2) the FID's findings that the asserted claims of the '984 patent are
not invalid as obvious. The Commission has further determined to review
the FID's findings regarding the economic prong of the domestic
industry requirement. The Commission has determined not to review the
remainder of the FID.
The Commission has also determined to extend the target date for
completing this investigation until April 27, 2022.
In connection with its review, the 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) Please discuss whether Complainant should be considered a mere
importer when its domestic activities and investments are evaluated as
a whole with respect to the asserted patents, rather than when its
domestic activities and investments are evaluated in a ``line-by-line''
approach, with citation to the record evidence.
(2) To the extent Complainant is not a mere importer and certain
domestic activities and investments with respect to the asserted
patents excluded by the FID (see e.g., certain warehousing/
distribution, quality control, and/or sales and marketing expenditures)
should be credited as cognizable domestic industry investments, please
discuss whether Complainant's cognizable domestic industry investments
are significant or substantial within the meaning of section
337(a)(3)(A)-(C), with citation to record evidence. Please be sure to
provide your explanation and data separately for each asserted patent.
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
[[Page 4046]]
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 Complainant seeks a cease and desist order, the
written submissions should respond to the following requests:
(1) Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainant also relies on other significant domestic operations that
could undercut the remedy provided by an exclusion order, please
identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
(2) In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
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.
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, 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 remaining in the investigation 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 February 3, 2022. Reply submissions must be filed
no later than the close of business on February 10, 2022. 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-1226) 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 the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 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
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 January
20, 2022.
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: January 20, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-01457 Filed 1-25-22; 8:45 am]
BILLING CODE 7020-02-P
