Certain Shingled Solar Modules, Components Thereof, and Methods for Manufacturing the Same ; Commission Determination To Review in Part and Remand in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding, 7867-7870 [2022-02795]

Download as PDF Federal Register / Vol. 87, No. 28 / Thursday, February 10, 2022 / Notices Torrey Pines Drive, Las Vegas, Nevada 89130; or fax to 775–515–5010. FOR FURTHER INFORMATION CONTACT: Jamie Moeini at the above address, by telephone at 702–515–5129, or by email at jmoeini@blm.gov. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION: The parcel is located south of LeBaron Avenue and west of Lindell Road in southwest Las Vegas and is legally described as: jspears on DSK121TN23PROD with NOTICES1 Mount Diablo Meridian, Nevada T. 22 S., R. 60 E., Sec. 25, NE1⁄4SE1⁄4NW1⁄4. The area described contains 10 acres, according to the official plats of surveys on file with the BLM. In accordance with the R&PP Act, Clark County Real Property Management has filed an application to develop the above-described land as a public park consisting of premanufactured restrooms with water bottle fillers, eight shade structures, a sport/exercise equipment area, a splash pad, multiage playground areas, tennis/ pickle ball/sand volleyball/basketball courts, a trash enclosure, trees, planters, typical desert landscaping, paved walking trails, concrete sidewalks, street and park lighting, a paved parking lot, and utilities for direct support of the proposed park. The parcel is surrounded by private land and a fully developed elementary school, which is a previously approved R&PP project. Additional detailed information pertaining to this publication, the plan of development, and site plan is available in case file N–98610, which is available for review at the BLM Las Vegas Field Office at the above address. Clark County Real Property Management is a political subdivision of the State of Nevada, and is therefore a qualified applicant under the R&PP Act. Subject to limitations prescribed by law and regulation, prior to patent issuance, the holder of any right-of-way grant within the lease area may be given the opportunity to amend the right-ofway grant for conversion to a new term, including perpetuity, if applicable. The land identified is not needed for any Federal purpose. The lease and/or conveyance is consistent with the BLM Las Vegas Resource Management Plan dated October 5, 1998, and would be in the public interest. Clark County Real VerDate Sep<11>2014 18:18 Feb 09, 2022 Jkt 256001 Property Management has not applied for more than the 640-acre limitation for public purpose uses in a year and has submitted a statement that its application is for a definite project as required by regulations at 43 CFR 2741.4(b). The lease and conveyance, when issued, will be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior, and will contain the following reservations to the United States: 1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945); 2. All minerals shall be reserved to the United States, together with the right to prospect for, mine, and remove such deposits for the same under applicable law and such regulations as the Secretary of the Interior may prescribe; and 3. Any lease and conveyance will also be subject to valid existing rights, will contain any terms or conditions required by law (including, but not limited to, any terms or conditions required by 43 CFR 2741.4), and will contain an appropriate indemnification clause protecting the United States from claims arising out of the lessee’s/ patentee’s use, occupancy, or operations on the leased/patented lands. It will also contain any other terms and conditions deemed necessary and appropriate by the Authorized Officer. Upon publication of this notice in the Federal Register, the land described above will be segregated from all other forms of appropriation under the public land laws, including the general mining laws, except for lease and conveyance under the R&PP Act, leasing under the mineral leasing laws, and disposals under the mineral material disposal laws. Interested parties may submit written comments on the suitability for classification of the land as a public park project in Clark County. Comments on the classification are restricted to whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or if the use is consistent with state and Federal programs. Interested parties may also submit written comments regarding the specific use proposed in the application, plan of development, and site plan, and whether the BLM followed proper administrative procedures in reaching the decision to lease and convey under the R&PP Act. Before including your address, phone number, email, address, or other PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 7867 personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Only written comments submitted to the Assistant Field Manager, BLM Las Vegas Field Office, will be considered properly filed. Any adverse comments will be reviewed as protests, by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, the decision will become effective on April 11, 2022. The lands will not be available for lease and conveyance until after the decision becomes effective. Authority: 43 CFR 2741.5. Shonna Dooman, Field Manager, Las Vegas Field Office. [FR Doc. 2022–02882 Filed 2–9–22; 8:45 am] BILLING CODE 4310–HC–P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–1223] Certain Shingled Solar Modules, Components Thereof, and Methods for Manufacturing the Same ; Commission Determination To Review in Part and Remand in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that, on October 22, 2021, the presiding acting chief administrative law judge (‘‘ALJ’’) issued a combined final initial determination (‘‘ID’’) finding a violation of section 337 and a recommended determination (‘‘RD’’) on remedy and bonding in the above-captioned investigation. The Commission has determined to review the final ID in part. The Commission has also determined to remand the ID in part to the ALJ to make a determination regarding whether an on-sale bar applies to the asserted claims of U.S. Patent No. 10,651,333 (‘‘the ’333 patent’’) based on alleged sales and offers for sale of certain products. The Commission requests briefing from the parties, interested government agencies, and SUMMARY: E:\FR\FM\10FEN1.SGM 10FEN1 7868 Federal Register / Vol. 87, No. 28 / Thursday, February 10, 2022 / Notices interested persons on the issues of remedy, the public interest, and bonding. jspears on DSK121TN23PROD with NOTICES1 FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205–3179. 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, telephone (202) 205–1810. SUPPLEMENTARY INFORMATION: On October 21, 2020, the Commission instituted this investigation based on a complaint filed by The Solaria Corporation (‘‘Solaria’’) of Fremont, California. 85 FR 67010–11 (Oct. 21, 2020). The complaint, as supplemented, alleges violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), based on the importation into the United States, the sale for importation, or the sale within the United States after importation of certain shingled solar modules, components thereof, and methods for manufacturing the same by reason of infringement of certain claims of U.S. Patent Nos. 10,522,707 (‘‘the ’707 patent’’); the ’333 patent; and 10,763,388 (‘‘the ’388 patent’’). Id. at 67011. The complaint further alleges that a domestic industry exists. Id. The notice of investigation named two respondents: Canadian Solar Inc. of Guelph, Ontario, Canada and Canadian Solar (USA) Inc. of Walnut Creek, California (collectively, ‘‘Canadian Solar’’). Id. The Office of Unfair Import Investigations is not named as a party. Id. On July 15, 2021, the Commission determined to terminate the investigation as to the ’707 patent based on Solaria’s withdrawal of the allegations in the complaint as to that patent. Order No. 9 (June 28, 2021), unreviewed by Comm’n Notice (July 15, 2021). On October 13, 2021, the Commission determined to terminate the investigation as to asserted claims 18–20 of the ’333 patent and asserted claims 6, 7, and 10 of the ’388 patent based on Solaria’s withdrawal of the allegations in the complaint as to those claims. Order No. 13 (Sept. 14, 2021), VerDate Sep<11>2014 18:18 Feb 09, 2022 Jkt 256001 unreviewed by Comm’n Notice (Oct. 13, 2021). On October 22, 2021, the ALJ issued the subject final ID on violation and RD on remedy and bonding. The ID finds violations of section 337 with respect to all asserted claims still at issue—i.e., asserted claims 1–5, 8, 9, 11, 15–17, 19, and 20 of the ’388 patent and asserted claims 1, 8, 9, and 12–17 of the ’333 patent. Specifically, the ID finds that: (i) Solaria has standing to assert both the ’388 and ’333 patents; (ii) the asserted claims of each patent are infringed and not invalid; (iii) the ’333 patent is not unenforceable due to unclean hands; and (iv) Solaria satisfied the technical and economic prongs of the domestic industry requirement as to both patents. The RD recommends that, should the Commission determine that violations of section 337 occurred, then the Commission should: (i) Issue a limited exclusion order against Canadian Solar’s infringing products; (ii) not issue a cease and desist order against Canadian Solar; and (iii) set a 100 percent bond for any importations of infringing products during the period of Presidential review. On November 5, 2021, Canadian Solar filed a petition for review of the ID on violation, including the ID’s findings concerning standing, claim construction, infringement, invalidity, unenforceability, and satisfaction of the technical prong of the domestic industry requirement. On November 15, 2021, Solaria filed a response to Canadian Solar’s petition. On November 22, 2021, Canadian Solar filed a notice of supplemental authority to inform the Commission that a claim construction order issued in a related district court litigation (‘‘district court order’’) involving the same parties and patents at issue in this investigation. On November 23, 2021, Canadian Solar filed a submission on the public interest pursuant to Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)). The Commission did not receive a public interest submission from Solaria. The Commission also did not receive any submissions on the public interest from members of the public in response to the Commission’s Federal Register notice. 86 FR 62845–46 (Nov. 12, 2021). The Commission has determined to review the ID in part and remand the ID in part. Specifically, the Commission has determined to review: (i) The ID’s construction of the claim term ‘‘ablation’’ of the ’388 and ’333 patents in light of the district court order’s construction of that term; (ii) the ID’s allocation of the burden of proof regarding the asserted claims’ entitlement to claim priority to the filing PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 date of U.S. Provisional Application No. 62/349,547 (‘‘the ’547 provisional application’’); (iii) the ID’s finding that claim 19 of the ’388 patent and claim 8 of the ’333 patent find written description support in the ’547 provisional application; (iv) the ID’s findings on validity for the ’388 patent; and (v) the ID’s finding concerning secondary considerations with respect to the ’333 patent. The Commission has determined to remand the ID to the ALJ to address, in the first instance, Canadian Solar’s on-sale bar defenses as to the asserted claims of the ’333 patent based on alleged sales and offers for sale of Solaria’s BIPV and GIPV products. The Commission has also determined to correct one typographical error on page 48 of the ID. The Commission has determined not to review the remaining findings in the ID. 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) Explain the proper allocation of burdens in the context of showing a patentee’s entitlement to rely on a parent application to avoid prior art. See ID at 62 (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327–28 (Fed. Cir. 2008)). (2) Explain whether claim 19 of the ’388 patent and claim 8 of the ’333 patent find written description support in the ’547 provisional application. Provide any citations to the record that support your contention. (3) Identify each product-by-process limitation recited in the asserted claims of the ’388 patent (e.g., ‘‘cut by an ablation from multiple passes of a laser beam’’) and explain whether each such limitation should be accorded patentable weight in the validity analysis of the claims at issue. 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: (1) An exclusion order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) a cease and desist order 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 E:\FR\FM\10FEN1.SGM 10FEN1 jspears on DSK121TN23PROD with NOTICES1 Federal Register / Vol. 87, No. 28 / Thursday, February 10, 2022 / Notices 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 (December 1994). The statute requires the Commission to consider the effects of any 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 order would have on: (1) The public health and welfare; (2) competitive conditions in the U.S. economy; (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation; and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation. The Commission requests full briefing on the public interest, setting forth a complete and fulsome discussion of whether exclusion of the accused products would have an effect on each public interest factor and providing evidence to substantiate factual assertions. Within the context of the applicable public interest factor, please include particular briefing on the following public interest issues: (1) Please identify and describe any planned but not yet completed projects involving the accused products, including the amount (wattage) of accused products needed to complete the project and the anticipated power generation associated with the project. (2) Please address the extent to which domestic industry products or other products are technically and practicably capable of replacing the accused products in the planned projects. Please address the extent to which replacing the accused products would result in project delays, additional costs, or reduced power generation. (3) To the extent that cancellation, delay, or reduced power generation of a project would result from a remedy in this investigation, how would that impact the overall supply of solar and other forms of clean energy in the United States? Please be as specific as possible. (4) What is Solaria’s and its manufacturing partners’ capacity to produce domestic industry products and do they currently have available capacity that could be used to increase production to replace the accused products? To the extent products other VerDate Sep<11>2014 18:18 Feb 09, 2022 Jkt 256001 than domestic industry products are capable of replacing the accused products, please address the available capacity of any producers to supply those products. (5) What is the relevant market for purposes of considering the public interest in this investigation, for example, the market for shingled solar modules or the broader solar module market? What share of the market do the various market participants hold, including Canadian Solar and Solaria? What market share do domesticallyproduced solar modules have? (6) Please address whether an exception to any remedial orders for modules and/or parts for warranty, service, or repair obligations is necessary to address any identified public interest concerns. Please identify the scope of any such exception, if any, and any evidence relevant to this issue. Please also address whether Canadian Solar’s warranty, service, or repair obligations could be met with noninfringing alternatives. (7) Please address whether Canadian Solar’s U.S. inventories of accused products are commercially significant in an appropriate context. Are these inventories sufficient to supply the planned projects identified in response to Question 1? (8) To the extent tailoring is requested of any remedial orders to address one or more public interest concerns, is nonissuance of a cease and desist order (i.e., allowing Canadian Solar to continue to sell infringing U.S. inventories) sufficient to address those concerns? 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, interested government agencies, and any other interested parties are invited to file written submissions on the issues of remedy, the public interest, and bonding. Such submissions should include views on the recommended determination by the ALJ on remedy and bonding. PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 7869 In its initial written submission, Solaria is requested to submit proposed remedial orders for the Commission’s consideration. Solaria is further requested to identify the dates the asserted patents expire, to provide the HTSUS subheadings under which the subject articles are imported, and to supply identification information for all known importers of the subject articles. Solaria is additionally requested to identify and explain, from the record, articles that are ‘‘components of’’ the subject articles, and thus covered by the proposed remedial orders, if imported separately from the subject articles. Initial written submissions, including proposed remedial orders, must be filed no later than close of business on February 18, 2022. Reply submissions must be filed no later than the close of business on March 4, 2022. No further submissions on any of these issues will be permitted unless otherwise ordered by the Commission. Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission’s paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the investigation number (Inv. No. 337– TA–1223) 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, E:\FR\FM\10FEN1.SGM 10FEN1 7870 Federal Register / Vol. 87, No. 28 / Thursday, February 10, 2022 / Notices 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,1 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 February 4, 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: February 4, 2022. Lisa Barton, Secretary to the Commission. [FR Doc. 2022–02795 Filed 2–9–22; 8:45 am] BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE [OMB Number 1190–0001] Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection; Procedures for the Administration of Section 5 of the Voting Rights Act of 1965 Civil Rights Division, Department of Justice. ACTION: 60-Day notice. AGENCY: The Department of Justice (DOJ), Civil Rights Division, Voting Section will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. DATES: Comments are encouraged and will be accepted for 60 days until April 11, 2022. FOR FURTHER INFORMATION CONTACT: If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Robert S. Berman, Deputy Chief, Department of Justice, Civil Rights jspears on DSK121TN23PROD with NOTICES1 SUMMARY: 1 All contract personnel will sign appropriate nondisclosure agreements. VerDate Sep<11>2014 18:18 Feb 09, 2022 Jkt 256001 Division, Voting Section, 950 Pennsylvania Avenue, 7243 NWB, (phone: 202–514–8690). SUPPLEMENTARY INFORMATION: Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points: —Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Civil Rights Division, including whether the information will have practical utility; —Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; —Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and —Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of This Information Collection Frm 00073 Fmt 4703 Sfmt 4703 Dated: February 7, 2022. Melody Braswell, Department Clearance Officer for PRA, U.S. Department of Justice. [FR Doc. 2022–02884 Filed 2–9–22; 8:45 am] BILLING CODE 4410–13–P DEPARTMENT OF JUSTICE [OMB 1140–0074] Agency Information Collection Activities; Proposed eCollection of eComments Requested; Extension Without Change of a Currently Approved Collection; List of Responsible Persons Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice. ACTION: 60-Day notice. AGENCY: 1. Type of Information Collection: Extension of a currently approved collection. 2. The Title of the Form/Collection: Procedures for the Administration of Section 5 of the Voting Rights Act of 1965. 3. The agency form number, if any, and the applicable component of the Department sponsoring the collection: None (Civil Rights Division). 4. Affected public who will be asked or required to respond, as well as a brief abstract: Primary: State, Local, or Tribal Government. Other: None. Abstract: Jurisdictions specially covered under the Voting Rights Act are required to comply with Sections 3 or 5 of the Act before they may implement any change in a standard, practice, or procedure affecting voting. One option for such compliance is to submit that change to Attorney General for review and establish that the proposed voting changes are not racially discriminatory. The procedures facilitate the provision of information that will enable the Attorney General to make the required determination. 5. An estimate of the total number of respondents and the amount of time PO 00000 estimated for an average respondent to respond: It is estimated that 1 respondent will complete each form within approximately 3.0 hours. 6. An estimate of the total public burden (in hours) associated with the collection: The estimated public burden associated with this collection is 3.0 total hours. If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405B, Washington, DC 20530. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection (IC) is also being published to obtain comments from the public and affected agencies. DATES: Comments are encouraged and will be accepted for 60 days until April 11, 2022. FOR FURTHER INFORMATION CONTACT: If you have additional comments regarding the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, contact: Shawn Stevens, ATF National Services Center, Federal Explosives Licensing Center, by mail at 244 Needy Road, Martinsburg, WV 25405, email at Shawn.Stevens@ atf.gov, or telephone at 304–616–4400. SUMMARY: E:\FR\FM\10FEN1.SGM 10FEN1

Agencies

[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Notices]
[Pages 7867-7870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02795]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1223]


Certain Shingled Solar Modules, Components Thereof, and Methods 
for Manufacturing the Same ; Commission Determination To Review in Part 
and Remand in Part a Final Initial Determination Finding a Violation of 
Section 337; Schedule for Filing Written Submissions on Remedy, the 
Public Interest, and Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that, on October 22, 2021, the 
presiding acting chief administrative law judge (``ALJ'') issued a 
combined final initial determination (``ID'') finding a violation of 
section 337 and a recommended determination (``RD'') on remedy and 
bonding in the above-captioned investigation. The Commission has 
determined to review the final ID in part. The Commission has also 
determined to remand the ID in part to the ALJ to make a determination 
regarding whether an on-sale bar applies to the asserted claims of U.S. 
Patent No. 10,651,333 (``the '333 patent'') based on alleged sales and 
offers for sale of certain products. The Commission requests briefing 
from the parties, interested government agencies, and

[[Page 7868]]

interested persons on the issues of remedy, the public interest, and 
bonding.

FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3179. 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, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: On October 21, 2020, the Commission 
instituted this investigation based on a complaint filed by The Solaria 
Corporation (``Solaria'') of Fremont, California. 85 FR 67010-11 (Oct. 
21, 2020). The complaint, as supplemented, alleges violations of 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), 
based on the importation into the United States, the sale for 
importation, or the sale within the United States after importation of 
certain shingled solar modules, components thereof, and methods for 
manufacturing the same by reason of infringement of certain claims of 
U.S. Patent Nos. 10,522,707 (``the '707 patent''); the '333 patent; and 
10,763,388 (``the '388 patent''). Id. at 67011. The complaint further 
alleges that a domestic industry exists. Id. The notice of 
investigation named two respondents: Canadian Solar Inc. of Guelph, 
Ontario, Canada and Canadian Solar (USA) Inc. of Walnut Creek, 
California (collectively, ``Canadian Solar''). Id. The Office of Unfair 
Import Investigations is not named as a party. Id.
    On July 15, 2021, the Commission determined to terminate the 
investigation as to the '707 patent based on Solaria's withdrawal of 
the allegations in the complaint as to that patent. Order No. 9 (June 
28, 2021), unreviewed by Comm'n Notice (July 15, 2021). On October 13, 
2021, the Commission determined to terminate the investigation as to 
asserted claims 18-20 of the '333 patent and asserted claims 6, 7, and 
10 of the '388 patent based on Solaria's withdrawal of the allegations 
in the complaint as to those claims. Order No. 13 (Sept. 14, 2021), 
unreviewed by Comm'n Notice (Oct. 13, 2021).
    On October 22, 2021, the ALJ issued the subject final ID on 
violation and RD on remedy and bonding. The ID finds violations of 
section 337 with respect to all asserted claims still at issue--i.e., 
asserted claims 1-5, 8, 9, 11, 15-17, 19, and 20 of the '388 patent and 
asserted claims 1, 8, 9, and 12-17 of the '333 patent. Specifically, 
the ID finds that: (i) Solaria has standing to assert both the '388 and 
'333 patents; (ii) the asserted claims of each patent are infringed and 
not invalid; (iii) the '333 patent is not unenforceable due to unclean 
hands; and (iv) Solaria satisfied the technical and economic prongs of 
the domestic industry requirement as to both patents. The RD recommends 
that, should the Commission determine that violations of section 337 
occurred, then the Commission should: (i) Issue a limited exclusion 
order against Canadian Solar's infringing products; (ii) not issue a 
cease and desist order against Canadian Solar; and (iii) set a 100 
percent bond for any importations of infringing products during the 
period of Presidential review.
    On November 5, 2021, Canadian Solar filed a petition for review of 
the ID on violation, including the ID's findings concerning standing, 
claim construction, infringement, invalidity, unenforceability, and 
satisfaction of the technical prong of the domestic industry 
requirement. On November 15, 2021, Solaria filed a response to Canadian 
Solar's petition.
    On November 22, 2021, Canadian Solar filed a notice of supplemental 
authority to inform the Commission that a claim construction order 
issued in a related district court litigation (``district court 
order'') involving the same parties and patents at issue in this 
investigation.
    On November 23, 2021, Canadian Solar filed a submission on the 
public interest pursuant to Commission Rule 210.50(a)(4) (19 CFR 
210.50(a)(4)). The Commission did not receive a public interest 
submission from Solaria. The Commission also did not receive any 
submissions on the public interest from members of the public in 
response to the Commission's Federal Register notice. 86 FR 62845-46 
(Nov. 12, 2021).
    The Commission has determined to review the ID in part and remand 
the ID in part. Specifically, the Commission has determined to review: 
(i) The ID's construction of the claim term ``ablation'' of the '388 
and '333 patents in light of the district court order's construction of 
that term; (ii) the ID's allocation of the burden of proof regarding 
the asserted claims' entitlement to claim priority to the filing date 
of U.S. Provisional Application No. 62/349,547 (``the '547 provisional 
application''); (iii) the ID's finding that claim 19 of the '388 patent 
and claim 8 of the '333 patent find written description support in the 
'547 provisional application; (iv) the ID's findings on validity for 
the '388 patent; and (v) the ID's finding concerning secondary 
considerations with respect to the '333 patent. The Commission has 
determined to remand the ID to the ALJ to address, in the first 
instance, Canadian Solar's on-sale bar defenses as to the asserted 
claims of the '333 patent based on alleged sales and offers for sale of 
Solaria's BIPV and GIPV products. The Commission has also determined to 
correct one typographical error on page 48 of the ID. The Commission 
has determined not to review the remaining findings in the ID.
    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) Explain the proper allocation of burdens in the context of 
showing a patentee's entitlement to rely on a parent application to 
avoid prior art. See ID at 62 (citing Tech. Licensing Corp. v. 
Videotek, Inc., 545 F.3d 1316, 1327-28 (Fed. Cir. 2008)).
    (2) Explain whether claim 19 of the '388 patent and claim 8 of the 
'333 patent find written description support in the '547 provisional 
application. Provide any citations to the record that support your 
contention.
    (3) Identify each product-by-process limitation recited in the 
asserted claims of the '388 patent (e.g., ``cut by an ablation from 
multiple passes of a laser beam'') and explain whether each such 
limitation should be accorded patentable weight in the validity 
analysis of the claims at issue.
    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: (1) An exclusion order that could 
result in the exclusion of the subject articles from entry into the 
United States, and/or (2) a cease and desist order 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

[[Page 7869]]

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 (December 1994).
    The statute requires the Commission to consider the effects of any 
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 order would have on: (1) The public health and 
welfare; (2) competitive conditions in the U.S. economy; (3) U.S. 
production of articles that are like or directly competitive with those 
that are subject to investigation; and (4) U.S. consumers. The 
Commission is therefore interested in receiving written submissions 
that address the aforementioned public interest factors in the context 
of this investigation.
    The Commission requests full briefing on the public interest, 
setting forth a complete and fulsome discussion of whether exclusion of 
the accused products would have an effect on each public interest 
factor and providing evidence to substantiate factual assertions. 
Within the context of the applicable public interest factor, please 
include particular briefing on the following public interest issues:
    (1) Please identify and describe any planned but not yet completed 
projects involving the accused products, including the amount (wattage) 
of accused products needed to complete the project and the anticipated 
power generation associated with the project.
    (2) Please address the extent to which domestic industry products 
or other products are technically and practicably capable of replacing 
the accused products in the planned projects. Please address the extent 
to which replacing the accused products would result in project delays, 
additional costs, or reduced power generation.
    (3) To the extent that cancellation, delay, or reduced power 
generation of a project would result from a remedy in this 
investigation, how would that impact the overall supply of solar and 
other forms of clean energy in the United States? Please be as specific 
as possible.
    (4) What is Solaria's and its manufacturing partners' capacity to 
produce domestic industry products and do they currently have available 
capacity that could be used to increase production to replace the 
accused products? To the extent products other than domestic industry 
products are capable of replacing the accused products, please address 
the available capacity of any producers to supply those products.
    (5) What is the relevant market for purposes of considering the 
public interest in this investigation, for example, the market for 
shingled solar modules or the broader solar module market? What share 
of the market do the various market participants hold, including 
Canadian Solar and Solaria? What market share do domestically-produced 
solar modules have?
    (6) Please address whether an exception to any remedial orders for 
modules and/or parts for warranty, service, or repair obligations is 
necessary to address any identified public interest concerns. Please 
identify the scope of any such exception, if any, and any evidence 
relevant to this issue. Please also address whether Canadian Solar's 
warranty, service, or repair obligations could be met with non-
infringing alternatives.
    (7) Please address whether Canadian Solar's U.S. inventories of 
accused products are commercially significant in an appropriate 
context. Are these inventories sufficient to supply the planned 
projects identified in response to Question 1?
    (8) To the extent tailoring is requested of any remedial orders to 
address one or more public interest concerns, is non-issuance of a 
cease and desist order (i.e., allowing Canadian Solar to continue to 
sell infringing U.S. inventories) sufficient to address those concerns?
    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, interested government agencies, 
and any other interested parties are invited to file written 
submissions on the issues of remedy, the public interest, and bonding. 
Such submissions should include views on the recommended determination 
by the ALJ on remedy and bonding.
    In its initial written submission, Solaria is requested to submit 
proposed remedial orders for the Commission's consideration. Solaria is 
further requested to identify the dates the asserted patents expire, to 
provide the HTSUS subheadings under which the subject articles are 
imported, and to supply identification information for all known 
importers of the subject articles. Solaria is additionally requested to 
identify and explain, from the record, articles that are ``components 
of'' the subject articles, and thus covered by the proposed remedial 
orders, if imported separately from the subject articles.
    Initial written submissions, including proposed remedial orders, 
must be filed no later than close of business on February 18, 2022. 
Reply submissions must be filed no later than the close of business on 
March 4, 2022. No further submissions on any of these issues will be 
permitted unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines stated above. The 
Commission's paper filing requirements in 19 CFR 210.4(f) are currently 
waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1223) 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,

[[Page 7870]]

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,\1\ solely for 
cybersecurity purposes. All contract personnel will sign appropriate 
nondisclosure agreements. All nonconfidential written submissions will 
be available for public inspection on EDIS.
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    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
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    The Commission vote for this determination took place on February 
4, 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: February 4, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-02795 Filed 2-9-22; 8:45 am]
BILLING CODE 7020-02-P