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]
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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:
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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
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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
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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:
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interested persons on the issues of
remedy, the public interest, and
bonding.
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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),
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18:18 Feb 09, 2022
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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
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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
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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
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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.
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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,
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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
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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
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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
