Certain In Vitro Fertilization Products, Components Thereof, and Products Containing the Same; Commission Decision Not To Review a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding, 9086-9088 [2022-03404]
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amended, 19 U.S.C. 1337, in the
importation into the United States, the
sale for importation, or the sale within
the United States after importation of
certain blowers and components thereof
by reason of infringement of one or
more of claims 1, 2, 7–10, and 15 of U.S.
Patent No. 8,079,834 (‘‘the ’834 patent’’).
Id. at 55492. The Commission’s notice
of investigation named as respondents
East West Manufacturing, LLC of
Atlanta, Georgia, and East West
Industries of Binh Duong, Vietnam
(collectively, ‘‘East West’’ or
‘‘Respondents’’). Id. at 55492. The Office
of Unfair Import Investigations (‘‘OUII’’)
did not participate as a party in the
original investigation. Id.
On November 12, 2020, the
Commission terminated the original
investigation with respect to
Respondents based upon a consent
order stipulation and entry of a consent
order. 85 FR 73511 (Nov. 18, 2020). The
Consent Order directs East West to ‘‘not
sell for importation, import or sell after
importation the Subject Articles . . .
except under consent or license from
Complainant.’’ Consent Order at ¶ 5.
The Consent Order defines ‘‘Subject
Articles’’ as ‘‘certain blowers and
components thereof that infringe claims
1, 2, 7–10, and 15 of the ’834 Patent.’’
Id. at ¶ 3.
On January 15, 2021, Regal filed an
enforcement complaint at the
Commission alleging that East West’s
redesigned blower infringes claims 1, 2,
7–10, and 15 of the ’834 patent in
violation of the consent order. On
February 19, 2021, the Commission
instituted a formal enforcement
proceeding, pursuant to Commission
Rule 210.75(a), to determine whether a
violation of the consent order issued in
the original investigation has occurred
and to determine what, if any,
enforcement measures are appropriate.
86 FR 10335 (Feb. 19, 2021). The
respondents named in the enforcement
proceeding are the same as the
respondents named in the original
investigation, i.e., East West
Manufacturing, LLC of Atlanta, Georgia,
and East West Industries of Binh Duong,
Vietnam. Id. OUII was named as a party
in the enforcement proceeding. Id.
On March 1, 2021, East West filed a
motion for monetary and other
sanctions alleging that Regal and its
attorneys tampered with and
misrepresented the accused redesigned
blower in the enforcement complaint.
Regal and OUII filed responses thereto
on March 11, 2021, and March 18, 2021,
respectively. The presiding
Administrative Law Judge (‘‘ALJ’’)
further permitted the private parties to
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file replies and sur-replies to the
sanctions briefing. EID at 16.
On June 29, 2021, the ALJ issued a
Markman Order (Order No. 22), styled
‘‘Markman Claim Constructions With
Abbreviated Rationales’’ (‘‘Markman
Order I’’). On July 13, 2021, the ALJ
issued Order No. 23, clarifying Order
No. 22.
The ALJ held an evidentiary hearing
from July 20–23, 2021 and received
post-hearing briefs thereafter. On
September 22, 2021, the ALJ held a
supplemental hearing on the sanctions
motion. EID at 18.
On October 29, 2021, the ALJ issued
Order No. 32 (Markman Order II),
providing extensive explanations as to
the adopted constructions in Order No.
22.
On December 14, 2021, the ALJ issued
the subject EID finding no violation of
the consent order. The EID found that
the parties do not contest personal
jurisdiction, and that the Commission
has in rem jurisdiction over the accused
products. EID at 19–20. The EID noted
that the private parties filed a ‘‘Joint
Stipulation on Importation and Sales,’’
describing ‘‘the number of units of the
Accused or Redesigned Blower that East
West imported and sold.’’ Id. at 20. The
EID found that Regal failed to show that
East West’s redesigned blower infringes
asserted claims 1, 2, 7–10, and 15 of the
’834 patent, and thus failed to show a
violation of the consent order. See id. at
9–10. The EID states that ‘‘in the event
the Commission were to find to the
contrary, an imposed civil penalty
should be de minimus and not the
maximum civil penalty that Regal has
proposed.’’ Id. at 10. Specifically, the
EID recommends that ‘‘East West
disgorge its profits plus an additional
one-half of its profits from any sales that
violated the Consent Order.’’ Id. at 10–
11.
On December 14, 2021, the ALJ also
issued Order No. 36 denying East West’s
motion for monetary sanctions. The ALJ
issued a public warning to Regal, citing
the Commission’s sanctions authority
under Commission Rule 210.4(c) and
(d), 19 CFR 210.4(c), (d), and ordered
Regal to correct potentially misleading
portions of the enforcement complaint.
On January 4, 2022, Regal filed a
petition for review of the EID, and
Respondents filed a contingent petition
for review of the EID and a petition for
review of Order No. 36. On January 10,
2022, the parties replied to the petitions
for review.
Having examined the record of this
investigation, including the EID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the EID in its entirety. The
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Commission has also determined to
review Order No. 36.
The Commission does not request
additional briefing from the parties.
The Commission’s vote on this
determination took place on February
11, 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 210).
By order of the Commission.
Issued: February 11, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–03402 Filed 2–16–22; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1196]
Certain In Vitro Fertilization Products,
Components Thereof, and Products
Containing the Same; Commission
Decision Not To Review 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
the U.S. International Trade
Commission has determined not to
review a final initial determination
(‘‘FID’’) of the presiding Administrative
Law Judge (‘‘ALJ’’) finding a violation of
section 337 by respondents Fast IVF of
Scottsdale, Arizona (‘‘Fast IVF’’) and
Hermes Ezcanesi of Istanbul, Turkey
(collectively, the ‘‘Defaulting
Respondents’’). The Commission also
requests written submissions from the
parties, interested government agencies
and interested persons, under the
schedule set forth below, on remedy, the
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT:
Houda Morad, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–4716. 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
SUMMARY:
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internet server at https://www.usitc.gov.
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: On April
16, 2020, the Commission instituted this
investigation under section 337 of the
Tariff Act of 1930, as amended, 19
U.S.C. 1337 (‘‘section 337’’), based on a
complaint filed by complainant EMD
Serono, Inc. of Rockland, Massachusetts
(‘‘Complainant’’). See 85 FR 21267–68
(Apr. 16, 2020). The complaint, as
amended and supplemented, alleges a
violation of section 337 based on the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain in vitro fertilization products,
components thereof, and products
containing same (collectively, ‘‘Gray
Market IVF Products’’), by reason of
infringement of U.S. Trademark
Registration Nos. 4,689,651; 1,772,761;
3,777,170; 3,389,332; 3,816,320;
1,972,079; 3,604,207; and 3,185,427
(collectively, ‘‘the Asserted
Trademarks’’); unfair methods of
competition and unfair acts in the
importation and sale of Gray Market IVF
Products by reason of false designation
of source; and unfair methods of
competition and unfair acts in the
importation and sale of the Gray Market
IVF Products by reason of false
advertising. See id. In addition to the
Defaulting Respondents, the notice of
investigation names General Plastik
Drug Stores (‘‘Unserved Respondent’’) of
Istanbul Suadiye, Turkey as a
respondent in this investigation. See id.
The Office of Unfair Import
Investigations is also a party to the
investigation. See id.
On September 1, 2020, the Chief ALJ
issued an initial determination (‘‘ID’’)
finding each of the Defaulting
Respondents in default. See Order No.
6 (Sept. 1, 2020), unreviewed by
Comm’n Notice (Sept. 24, 2020). On
October 13, 2020, the Chief ALJ also
issued an ID terminating Unserved
Respondent from the investigation
based on the withdrawal of the
complaint allegations as to that
respondent. See Order No. 8 (Oct. 13,
2020), unreviewed by Comm’n Notice
(Oct. 26, 2020).
On April 16, 2021, the Chief ALJ
issued an ID (Order No. 10) (‘‘SD’’)
granting in part Complainant’s motion
for summary determination of violation
of section 337 by the Defaulting
Respondents with respect to
Complainant’s claim under section
337(a)(1)(C) (infringement of the
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Asserted Trademarks) but denied the
motion with respect to Complainant’s
unfair competition claims under section
337(a)(1)(A). The SD also finds that
Complainant has satisfied the economic
prong of the domestic industry
requirement under subsection (C) of
section 337(a)(3).
On May 18, 2021, the Commission
determined to review the SD (Order No.
10) in part. See Comm’n Notice (May 18,
2021). Specifically, the Commission
determined to review the SD’s findings
with respect to the economic prong of
the domestic industry requirement. See
id. The Commission determined not to
review any other findings in the SD.
On October 6, 2021, the Commission
determined to vacate the SD in part.
Specifically, the Commission vacated
the SD’s finding that Complainant has
satisfied the economic prong of the
domestic industry requirement.
Consequently, the Commission also
vacated the SD’s finding of a violation
of section 337 and remanded the
investigation to the Chief ALJ.
Commissioners Karpel and Schmidtlein
dissented from the Commission’s
decision that Complainant had failed to
satisfy the economic prong of the
domestic industry requirement and
would have found a violation of Section
337 based on substantial, reliable, and
probative evidence.
After the Commission decision to
vacate the SD, EMD Serono abandoned
its request for a general exclusion order;
thereafter, it requested a limited
exclusion order against both defaulting
respondents and a cease and desist
order against FastIVF. See FID at 6
(citing Motion Docket No. 1196–008 at
1 n.1, 8–9). On December 15, 2021, the
ALJ issued an ID partially terminating
the investigation as to Complainant’s
unfair competition claims under section
337(a)(1)(A). See Order No. 13 (Dec. 15,
2021), unreviewed by Comm’n Notice
(Jan 10, 2022).
On December 15, 2021, the ALJ issued
the FID finding a violation of section
337 based on the infringement by the
Defaulting Respondents of
Complainant’s Asserted Trademarks
pursuant to section 337(g)(1), 19 U.S.C.
1337(g)(1). In addition, the ALJ
recommended that the Commission
issue a limited exclusion order (‘‘LEO’’)
against the infringing articles imported
by or on behalf of the Defaulting
Respondents and a cease and desist
order (‘‘CDO’’) against FastIVF.
No petition for review of the FID was
filed.
On January 4, 2022, Complainant filed
a statement on the public interest
pursuant to Commission Rule 210.50, 19
CFR 210.50. On the same day,
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9087
Complainant filed a declaration
requesting relief against the Defaulting
Respondents, namely, an LEO against
the Defaulting Respondents’ infringing
products and a CDO against FastIVF. No
third-party submissions were filed in
response to the Federal Register notice
requesting public interest comments.
See 86 FR 72620–21 (Dec. 22, 2021).
The Commission has determined not
to review the FID.
In connection with the final
disposition of this investigation, the
Commission may (1) issue an order that
could result in the exclusion of the
subject articles from entry into the
United States, and/or (2) issue one or
more cease and desist orders that could
result in the respondent(s) being
required to cease and desist from
engaging in unfair acts in the
importation and sale of such articles.
Accordingly, the Commission is
interested in receiving written
submissions that address the form of
remedy, if any, that should be ordered.
If a party seeks exclusion of an article
from entry into the United States for
purposes other than entry for
consumption, the party should so
indicate and provide information
establishing that activities involving
other types of entry either are adversely
affecting it or likely to do so. For
background, see Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. at 7–10
(Dec. 1994).
If the Commission contemplates some
form of remedy, it must consider the
effects of that remedy upon the public
interest. The factors the Commission
will consider include the effect that an
exclusion order and/or cease and desist
orders would have on (1) the public
health and welfare, (2) competitive
conditions in the U.S. economy, (3) U.S.
production of articles that are like or
directly competitive with those that are
subject to investigation, and (4) U.S.
consumers. The Commission is
therefore interested in receiving written
submissions that address the
aforementioned public interest factors
in the context of this investigation.
If the Commission orders some form
of remedy, the U.S. Trade
Representative, as delegated by the
President, has 60 days to approve or
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
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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: Parties to the
investigation, interested government
agencies, and any other interested
parties are encouraged to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
submissions should also address the
recommended determination by the ALJ
on remedy and bonding. Complainant is
also requested to submit proposed
remedial orders for the Commission’s
consideration. Complainant is further
requested to provide the HTSUS
numbers under which the accused
products are imported, and to supply
the names of known importers of the
products at issue in this investigation.
Written submissions and proposed
remedial orders must be filed no later
than close of business on February 28,
2022. Reply submissions must be filed
no later than the close of business on
March 7, 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
(March 19, 2020). Submissions should
refer to the investigation number (‘‘Inv.
No. 337–TA–1196’’) 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. 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
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Jkt 256001
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. All non-confidential
written submissions will be available for
public inspection at the Office of the
Secretary and on EDIS.
While temporary remote operating
procedures are in place in response to
COVID–19, the Office of the Secretary is
not able to serve parties that have not
retained counsel or otherwise provided
a point of contact for electronic service.
Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR
201.16(a), 210.7(a)(1)), the Commission
orders that the Complainant(s) complete
service for any party/parties without a
method of electronic service noted on
the attached Certificate of Service and
shall file proof of service on the
Electronic Document Information
System (EDIS).
The Commission’s vote for this
determination took place on February
11, 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 11, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–03404 Filed 2–16–22; 8:45 am]
BILLING CODE 7020–02–P
LEGAL SERVICES CORPORATION
Retrospective Review of Regulations
Legal Services Corporation.
Request for information.
AGENCY:
ACTION:
The Legal Services
Corporation (LSC) is requesting public
input on its regulatory priorities in 2022
and future years. Although LSC makes
its regulatory priorities available for
public comment annually in April, LSC
has not formally sought the public’s
views on its regulatory activities since
2007.
SUMMARY:
Comments due May 18, 2022.
Listening sessions, all conducted via
Zoom, all times Eastern:
DATES:
PO 00000
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1. Thursday, March 3, 2022, 11:00 a.m.–
1:00 p.m.
2. Monday, March 14, 2022 2:00 p.m.–
4:00 p.m.
3. Tuesday, March 29, 2022, 3:00 p.m.–
5:00 p.m.
4. Wednesday, April 13, 10:00 a.m.–
12:00 p.m.
ADDRESSES: You may send comments by
any of the following methods:
• Email: lscrulemaking@lsc.gov.
Include ‘‘2022 Regulatory Review
Comments’’ in the subject line of the
message.
• Fax: 202–337–6519. Please send to
the attention of Stefanie Davis, Senior
Associate General Counsel, and include
‘‘2022 Regulatory Review Comments’’
on the cover page.
• Mail: Legal Services Corporation,
ATTN: Stefanie Davis, Senior Associate
General Counsel, 3333 K Street NW,
Washington, DC 20007.
FOR FURTHER INFORMATION CONTACT:
Stefanie Davis, Senior Associate General
Counsel, Legal Services Corporation,
3333 K Street NW, Washington, DC
20007; (202) 295–1563 (phone); 202–
337–6831 (fax); or sdavis@lsc.gov.
SUPPLEMENTARY INFORMATION:
Listening Session Access Information:
To participate in the listening sessions
via Zoom, please follow the link or use
the dial-in instructions below:
Link: https://lsc-gov.zoom.us/j/
2464362303.
Meeting ID: 246 436 2303.
Find your local number: https://lscgov.zoom.us/u/a293EJE37.
Background: LSC last solicited input
broadly on its Rulemaking Agenda in
2007 via an email to Executive
Directors. In the intervening years, LSC
has identified rulemaking priorities
through a combination of:
• LSC Task Force reports;
• Comments from stakeholders,
including grantees, the client board
member community, LSC’s Board of
Directors, and the National Legal Aid
and Defender Association;
• Audit and investigation reports
issued by LSC’s Office of the Inspector
General;
• Statutory changes; and
• Discrete situations that indicated a
need for rulemaking.
Since 2010, LSC has completed 17
separate rulemakings. These
rulemakings have ranged from ones
needed to reflect Congressional action,
such as revisions to the Freedom of
Information Act or the expansion of
grantees’ authority to represent
defendants in Tribal criminal courts
under the Tribal Law and Order Act of
2010, to complete overhauls of LSC’s
subgrant rule. LSC repealed one
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]]>Agencies
[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Notices]
[Pages 9086-9088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03404]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1196]
Certain In Vitro Fertilization Products, Components Thereof, and
Products Containing the Same; Commission Decision Not To Review 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.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined not to review a final initial determination
(``FID'') of the presiding Administrative Law Judge (``ALJ'') finding a
violation of section 337 by respondents Fast IVF of Scottsdale, Arizona
(``Fast IVF'') and Hermes Ezcanesi of Istanbul, Turkey (collectively,
the ``Defaulting Respondents''). The Commission also requests written
submissions from the parties, interested government agencies and
interested persons, under the schedule set forth below, on remedy, the
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-4716. 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
[[Page 9087]]
internet server at https://www.usitc.gov. Hearing-impaired persons are
advised that information on this matter can be obtained by contacting
the Commission's TDD terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: On April 16, 2020, the Commission instituted
this investigation under section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``section 337''), based on a complaint filed
by complainant EMD Serono, Inc. of Rockland, Massachusetts
(``Complainant''). See 85 FR 21267-68 (Apr. 16, 2020). The complaint,
as amended and supplemented, alleges a violation of section 337 based
on the importation into the United States, the sale for importation,
and the sale within the United States after importation of certain in
vitro fertilization products, components thereof, and products
containing same (collectively, ``Gray Market IVF Products''), by reason
of infringement of U.S. Trademark Registration Nos. 4,689,651;
1,772,761; 3,777,170; 3,389,332; 3,816,320; 1,972,079; 3,604,207; and
3,185,427 (collectively, ``the Asserted Trademarks''); unfair methods
of competition and unfair acts in the importation and sale of Gray
Market IVF Products by reason of false designation of source; and
unfair methods of competition and unfair acts in the importation and
sale of the Gray Market IVF Products by reason of false advertising.
See id. In addition to the Defaulting Respondents, the notice of
investigation names General Plastik Drug Stores (``Unserved
Respondent'') of Istanbul Suadiye, Turkey as a respondent in this
investigation. See id. The Office of Unfair Import Investigations is
also a party to the investigation. See id.
On September 1, 2020, the Chief ALJ issued an initial determination
(``ID'') finding each of the Defaulting Respondents in default. See
Order No. 6 (Sept. 1, 2020), unreviewed by Comm'n Notice (Sept. 24,
2020). On October 13, 2020, the Chief ALJ also issued an ID terminating
Unserved Respondent from the investigation based on the withdrawal of
the complaint allegations as to that respondent. See Order No. 8 (Oct.
13, 2020), unreviewed by Comm'n Notice (Oct. 26, 2020).
On April 16, 2021, the Chief ALJ issued an ID (Order No. 10)
(``SD'') granting in part Complainant's motion for summary
determination of violation of section 337 by the Defaulting Respondents
with respect to Complainant's claim under section 337(a)(1)(C)
(infringement of the Asserted Trademarks) but denied the motion with
respect to Complainant's unfair competition claims under section
337(a)(1)(A). The SD also finds that Complainant has satisfied the
economic prong of the domestic industry requirement under subsection
(C) of section 337(a)(3).
On May 18, 2021, the Commission determined to review the SD (Order
No. 10) in part. See Comm'n Notice (May 18, 2021). Specifically, the
Commission determined to review the SD's findings with respect to the
economic prong of the domestic industry requirement. See id. The
Commission determined not to review any other findings in the SD.
On October 6, 2021, the Commission determined to vacate the SD in
part. Specifically, the Commission vacated the SD's finding that
Complainant has satisfied the economic prong of the domestic industry
requirement. Consequently, the Commission also vacated the SD's finding
of a violation of section 337 and remanded the investigation to the
Chief ALJ. Commissioners Karpel and Schmidtlein dissented from the
Commission's decision that Complainant had failed to satisfy the
economic prong of the domestic industry requirement and would have
found a violation of Section 337 based on substantial, reliable, and
probative evidence.
After the Commission decision to vacate the SD, EMD Serono
abandoned its request for a general exclusion order; thereafter, it
requested a limited exclusion order against both defaulting respondents
and a cease and desist order against FastIVF. See FID at 6 (citing
Motion Docket No. 1196-008 at 1 n.1, 8-9). On December 15, 2021, the
ALJ issued an ID partially terminating the investigation as to
Complainant's unfair competition claims under section 337(a)(1)(A). See
Order No. 13 (Dec. 15, 2021), unreviewed by Comm'n Notice (Jan 10,
2022).
On December 15, 2021, the ALJ issued the FID finding a violation of
section 337 based on the infringement by the Defaulting Respondents of
Complainant's Asserted Trademarks pursuant to section 337(g)(1), 19
U.S.C. 1337(g)(1). In addition, the ALJ recommended that the Commission
issue a limited exclusion order (``LEO'') against the infringing
articles imported by or on behalf of the Defaulting Respondents and a
cease and desist order (``CDO'') against FastIVF.
No petition for review of the FID was filed.
On January 4, 2022, Complainant filed a statement on the public
interest pursuant to Commission Rule 210.50, 19 CFR 210.50. On the same
day, Complainant filed a declaration requesting relief against the
Defaulting Respondents, namely, an LEO against the Defaulting
Respondents' infringing products and a CDO against FastIVF. No third-
party submissions were filed in response to the Federal Register notice
requesting public interest comments. See 86 FR 72620-21 (Dec. 22,
2021).
The Commission has determined not to review the FID.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent(s) being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or likely to do so.
For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op.
at 7-10 (Dec. 1994).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or 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
[[Page 9088]]
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: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should also address the recommended
determination by the ALJ on remedy and bonding. Complainant is also
requested to submit proposed remedial orders for the Commission's
consideration. Complainant is further requested to provide the HTSUS
numbers under which the accused products are imported, and to supply
the names of known importers of the products at issue in this
investigation.
Written submissions and proposed remedial orders must be filed no
later than close of business on February 28, 2022. Reply submissions
must be filed no later than the close of business on March 7, 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 (March 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1196'') 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. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel, solely for cybersecurity
purposes. All contract personnel will sign appropriate nondisclosure
agreements. All non-confidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant(s) complete service for any
party/parties without a method of electronic service noted on the
attached Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
The Commission's vote for this determination took place on February
11, 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 11, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-03404 Filed 2-16-22; 8:45 am]
BILLING CODE 7020-02-P
