Certain Wrapping Material and Methods for Use in Agricultural Applications; Notice of Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions; Extension of Target Date, 14572-14574 [2022-05384]
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Federal Register / Vol. 87, No. 50 / Tuesday, March 15, 2022 / Notices
Zebra Technologies Corporation, 3
Overlook Point, Lincolnshire, Illinois
60069
Symbol Technologies, LLC, 1 Zebra
Plaza, Holtsville, New York 11742
(b) The respondents are the following
entities alleged to be in violation of
section 337, and are the parties upon
which the complaint is to be served:
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Honeywell International Inc., 855 S.
Mint Street, Charlotte, North Carolina
28202
Hand Held Products, Inc., 855 S. Mint
Street, Charlotte, North Carolina
28202
(4) For the investigation so instituted,
the Chief Administrative Law Judge,
U.S. International Trade Commission,
shall designate the presiding
Administrative Law Judge.
The Office of Unfair Import
Investigations is not participating as a
party in this investigation.
Responses to the complaint and the
notice of investigation must be
submitted by the named respondents in
accordance with section 210.13 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.13. Pursuant to
19 CFR 201.16(e) and 210.13(a), as
amended in 85 FR 15798 (March 19,
2020), such responses will be
considered by the Commission if
received not later than 20 days after the
date of service by the complainants of
the complaint and the notice of
investigation. Extensions of time for
submitting responses to the complaint
and the notice of investigation will not
be granted unless good cause therefor is
shown.
Failure of a respondent to file a timely
response to each allegation in the
complaint and in this notice may be
deemed to constitute a waiver of the
right to appear and contest the
allegations of the complaint and this
notice, and to authorize the
administrative law judge and the
Commission, without further notice to
the respondent, to find the facts to be as
alleged in the complaint and this notice
and to enter an initial determination
and a final determination containing
such findings, and may result in the
issuance of an exclusion order or a cease
and desist order or both directed against
the respondent.
By order of the Commission.
Issued: March 9, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–05380 Filed 3–14–22; 8:45 am]
BILLING CODE 7020–02–P
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INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1210]
Certain Wrapping Material and
Methods for Use in Agricultural
Applications; Notice of Commission
Determination To Review in Part a
Final Initial Determination Finding No
Violation of Section 337; Schedule for
Filing Written Submissions; Extension
of Target Date
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part the final initial determination
(‘‘final ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’) on
December 10, 2021, finding no violation
of section 337 of the Tariff Act of 1930,
as amended. The Commission requests
briefing from the parties on certain
issues under review, as indicated in this
notice. The Commission also requests
briefing from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding. The
Commission has also determined to
extend the target date for the completion
of the investigation to May 9, 2022.
FOR FURTHER INFORMATION CONTACT:
Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3427. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: On August
11, 2020, the Commission instituted this
investigation based on a complaint filed
on behalf of Tama Group of Israel and
Tama USA Inc. of Dubuque, Iowa
(together, ‘‘Tama’’). 85 FR 48561–62
(Aug. 11, 2020). The complaint alleged
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C.
1337, based upon the importation into
the United States, the sale for
importation, and the sale within the
SUMMARY:
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United States after importation of
certain wrapping material and methods
for use in agricultural applications by
reason of infringement of one or more of
claims 1, 2, 4–16, 18, 28, 32, 33, and 35–
45 of U.S. Patent No. 6,787,209 (‘‘the
’209 patent’’). Id. The Commission’s
notice of investigation named as
respondents Zhejiang Yajia Cotton
Picker Parts Co., Ltd. of Zhuji City,
China (‘‘Yajia Cotton’’); Southern
Marketing Affiliates, Inc. of Jonesboro,
Arkansas (‘‘SMA’’); Hai’an Xin Fu Yuan
of Agricultural, Science, and
Technology Co., Ltd. of Nantong, China
(‘‘XFY’’); and Gosun Business
Development Co. Ltd. of Grande Prairie,
Canada (‘‘Gosun’’). Id. at 48561. The
Office of Unfair Import Investigations is
not participating in this investigation.
Id.
The Commission previously
terminated this investigation with
respect to Gosun. Order No. 6,
unreviewed by Notice (Oct. 5, 2020).
Based on Tama’s motion, the
Commission later amended the
complaint and notice of investigation to
add Zhejiang Yajia Packaging Materials
Co., Ltd. (‘‘Yajia Packaging’’) as a
respondent. Order No. 8, unreviewed by
Notice (Oct. 27, 2020); 85 FR 68,916
(Oct. 30, 2020). Yajia Cotton and Yajia
Packaging are collectively referred to
herein as ‘‘Yajia.’’ Yajia, SMA, and XFY
are collectively referred to herein as
‘‘Respondents.’’
On November 16, 2020, XFY was
found in default pursuant to
Commission Rule 210.16 (19 CFR
210.16). Order No. 11, unreviewed by
Notice (Nov. 30, 2020).
On December 10, 2021, the ALJ issued
the final ID, which found that
Respondents did not violate section 337.
The final ID found (1) that Tama no
longer asserts claims 15, 16, 18, 28, and
45 of the ‘209 patent; (2) the importation
or sale requirement of section 337 has
been satisfied; (3) the Accused Products
infringe claims 1, 2, 4–7, and 10–14 of
the ’209 patent; (4) Yajia and SMA do
not infringe claims 32, 33, 35–38, and
41–44 of the ′209 patent; (5) the
technical prong of the domestic industry
requirement for the ’209 patent has been
satisfied; (6) the ’209 patent is not
invalid; and (7) the economic prong of
the domestic industry requirement has
not been satisfied. The ALJ’s
Recommended Determination on
remedy and bonding (‘‘RD’’)
recommended that should the
Commission find a violation, it should
issue a limited exclusion order directed
to certain wrapping material and
methods for use in agricultural
applications imported, sold for
importation, and/or sold after
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importation by respondents Yajia, SMA,
and XFY. The RD further recommended
that the issuance of cease and desist
orders would be unnecessary. The RD
additionally recommended that the
Commission set a bond during the
period of Presidential review using a
price differential between the Accused
Products and Tama’s TamaWrap
products. Thus, the CALJ recommended
that the Commission set a bond in the
amount of $119 (or 20%) for Tama’s
Premium product and $23 (or 4%) for
Tama’s Blue Value product. The
Commission did not instruct the CALJ
to make findings concerning the public
interest.
On December 27, 2021, Yajia and
SMA filed a joint petition for review,
and Tama also filed a petition for
review. On January 4, 2022, Yajia Cotton
and SMA filed a joint response to
Tama’s petition for review, and Tama
filed a response to Yajia and SMA’s
joint petition for review.
The Commission received no public
interest comments from the public in
response to the Commission’s Federal
Register notice seeking comment on the
public interest. 86 FR 71664–65 (Dec.
17, 2021). Tama, Yajia, and SMA did
not submit any public interest
comments pursuant to Commission Rule
210.50(a)(4) (19 CFR 210.50(a)(4)).
Having examined the record in this
investigation, including the final ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the final ID in part. In
particular, the Commission has
determined to review the following:
(1) The final ID’s findings that Yajia
and SMA do not infringe claims 32, 33,
35–38, and 41–44 directly or indirectly;
and
(2) the final ID’s finding that the
economic prong of the domestic
industry requirement has not been
satisfied.
The Commission has determined not to
review the remainder of the final ID.
The Commission has also determined
to extend the target date for the
completion of the investigation to May
9, 2022.
The parties are requested to brief their
positions with reference to the
applicable law and the evidentiary
record regarding the questions provided
below:
(1) Under Commission and judicial
precedent, section 337 and its legislative
history, and any other relevant authority, is
a license (express or otherwise) between
Tama and John Deere & Co. (‘‘Deere’’)
necessary for the Commission to consider
Deere’s investments in its On-Board Module
Harvesters, including model numbers 7760,
CP690, and CS690 (‘‘the Deere Machines’’),
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towards Tama’s satisfaction of the economic
prong of the domestic industry requirement?
Or, is it sufficient that Deere and Tama
collaborated to design a system that requires
Tama’s TamaWrap and Deere’s Deere
Machines? Is it necessary that Tama
authorized Deere to use the patented devices
and methods?
(2) What evidence is in the record that
shows that Deere was authorized to use the
’209 patent?
(3) Under Commission and judicial
precedent, section 337 and its legislative
history, and any other relevant authority, if
the Commission considers Deere’s
investments in the categories listed in section
337(a)(3)(A)–(C) towards the satisfaction of
the economic prong of the domestic industry
requirement, to what extent and in which
statutory category(ies) should the
Commission consider the Deere
expenditures? For example, should such
expenditures be in TamaWrap itself and/or
the method of using TamaWrap; should such
expenditures be related to ensuring
TamaWrap is compatible with the Deere
Machines; should such expenditures have
some other connection to TamaWrap and/or
the ’209 patent; or, should all expenditures
related to the Deere Machines in each
relevant statutory category contribute
towards the satisfaction of the domestic
industry requirement?
(4) What evidence is in the record that
Deere specifically invested in TamaWrap
and/or the method of using TamaWrap? For
example, what activities did Deere undertake
to ensure the Deere Machines would work
well with TamaWrap?
(5) What part of the Deere Machines are
specifically designed to interact with
TamaWrap and what, if any, of Deere’s
investments asserted by Tama were
specifically related to that portion of the
Deere Machines and/or ensuring that Deere
Machines are compatible with TamaWrap?
(6) Does the ‘‘article[ ] protected by the
patent’’ (19 U.S.C. 1337(a)(3)) differ for the
asserted apparatus claims and method
claims? For example, are the Deere Machines
‘‘articles protected by the patent’’ with
respect to the method claims while only the
TamaWrap is an ‘‘article[ ] protected by the
patent’’ with respect to the apparatus claim?
If the articles protected by the patent differ
as between the apparatus and the method
claims, please provide a chart with
supporting citations to the record indicating
the expenditures for each statutory category
for the respective apparatus and method
claims.
(7) Can the Commission consider Deere’s
expenditures related to the Deere Machines
under an ‘‘article of commerce theory’’? See,
e.g., Certain Video Game Sys. & Wireless
Controllers & Components Thereof, Inv. No.
337–TA–770, Comm’n Op. at 66–70 (Oct. 28,
2013) (Public Version) (‘‘Video Game Sys.’’).
(8) To what extent do Deere’s activities
related to the Deere Machines have a direct
relationship to the exploitation of the
patented technology, and to what extent can
the expenditures be considered on that basis?
See, e.g., Video Game Sys., Comm’n Op. at
67–68.
(9) To what extent do the ‘‘realities of the
marketplace’’ require Deere’s expenditures in
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14573
the Deere Machines for Tama to sell
TamaWrap (or articles practicing the
Asserted Patent)? See, e.g., Video Game Sys.,
Comm’n Op. at 8.
(10) Were the expenditures related to the
Deere Machines necessary to bringing
TamaWrap to the consumer market, and if so,
should the Commission consider those
expenditures, and to what extent? See, e.g.,
Video Game Sys., Comm’n Op. at 69–70;
Certain Digital Set-Top Boxes & Components
Thereof, Inv. No. 337–TA–712, Order No. 33
(Jan. 11, 2011), aff’d in part, Notice (July 21,
2011).
(11) Were the expenditures related to the
Deere Machines central to the exploitation of
TamaWrap, and if so, should the Commission
consider those expenditures, and to what
extent? See, e.g., Certain Magnetic Tape
Cartridges & Components Thereof, Inv. No.
337–TA–1058, Comm’n Op. at 50 (Apr. 9,
2019) (Public Version); Certain SleepDisordered Breathing Treatment Sys. &
Components Thereof, Inv. No. 337–TA–890,
Final ID at 147–50 (Sept. 16, 2014) (Public
Version), unreviewed in relevant part by
Notice, (Oct. 16, 2014).
(12) With citations to record evidence and
any relevant Commission and/or judicial
precedent, including, e.g., Certain In Vitro
Fertilization Products, Components Thereof,
and Products Containing the Same, Inv. No.
337–TA–1196, Dissenting Views of
Commissioners Schmidtlein and Karpel (Oct.
28, 2021), please discuss whether Tama’s
domestic activities as a whole indicate that
it is more than a ‘‘mere importer.’’ Please
note that this question is different from
Question 13.
(13) With citations to record evidence and
any relevant Commission and/or judicial
precedent, please discuss whether Tama’s
qualifying domestic activities indicate that it
is more than a ‘‘mere importer.’’
(14) Please indicate how Tama’s claimed
investments in the acquisition of Ambraco,
components, administrative fees, and
administrative expenses qualify as
investments in ‘‘labor or capital’’ under
section 337(a)(3)(B)? Please allocate those
investments with respect to the articles
protected by the patent and to those portions
attributable to labor or capital.
(15) What arguments were presented to the
ALJ that the amount of Deere’s investment
were significant or substantial?
(16) To the extent Tama is not a mere
importer and certain domestic activities and
investments with respect to the asserted
patent excluded by the final ID (see e.g.,
certain warehousing, inventory, logistics,
finance, invoicing, account management,
and/or promotion, marketing, and sales
expenditures) should be credited as
cognizable domestic industry investments,
please discuss whether Tama’s cognizable
domestic industry investments (apart from
any investments by Deere) are significant or
substantial within the meaning of section
337(a)(3)(A)–(C), with citation to record
evidence.
(17) To the extent investments by Deere are
considered by the Commission along with
the investments excluded by the final ID (see,
e.g., certain warehousing, inventory,
logistics, finance, invoicing, account
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management, and/or promotion, marketing,
and sales expenditures) with respect to
satisfaction of the economic prong of the
domestic industry requirement under section
337(a)(3)(A)–(C), please discuss whether
domestic industry investments are significant
or substantial within the meaning of section
337(a)(3)(A)–(C), with citation to record
evidence.
In connection with the final
disposition of this investigation, the
statute authorizes issuance of, inter alia,
(1) an exclusion order that could result
in the exclusion of the subject articles
from entry into the United States, and/
or (2) cease and desist orders that could
result in the respondents being required
to cease and desist from engaging in
unfair acts in the importation and sale
of such articles. Accordingly, the
Commission is interested in receiving
written submissions that address the
form of remedy, if any, that should be
ordered. If a party seeks exclusion of an
article from entry into the United States
for purposes other than entry for
consumption, the party should so
indicate and provide information
establishing that activities involving
other types of entry either are adversely
affecting it or are 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).
The statute requires the Commission
to consider the effects of that remedy
upon the public interest. The public
interest factors the Commission will
consider include the effect that an
exclusion order and/or cease and desist
orders would have on: (1) The public
health and welfare, (2) competitive
conditions in the U.S. economy, (3) U.S.
production of articles that are like or
directly competitive with those that are
subject to investigation, and (4) U.S.
consumers. The Commission is
therefore interested in receiving written
submissions that address the
aforementioned public interest factors
in the context of this investigation.
If the Commission orders some form
of remedy, the U.S. Trade
Representative, as delegated by the
President, has 60 days to approve,
disapprove, or take no action on the
Commission’s determination. See
Presidential Memorandum of July 21,
2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles
would be entitled to enter the United
States under bond, in an amount
determined by the Commission and
prescribed by the Secretary of the
Treasury. The Commission is therefore
interested in receiving submissions
concerning the amount of the bond that
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should be imposed if a remedy is
ordered.
Written Submissions: The parties to
the investigation are requested to file
written submissions on the questions
identified in this notice. 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
initial written submissions should
include views on the RD that issued on
December 10, 2021.
Initial written submissions, limited to
80 pages, must be filed no later than the
close of business on March 23, 2022.
Complainants are requested to identify
the form of the remedy sought and to
submit proposed remedial orders for the
Commission’s consideration.
Complainants are also requested to state
the HTSUS subheadings under which
the accused articles are imported, and to
supply identification information for all
known importers of the accused
products. Reply submissions, limited to
50 pages, must be filed no later than the
close of business on March 30, 2022. No
further submissions on these issues will
be permitted unless otherwise ordered
by the Commission.
Persons filing written submissions
must file the original document
electronically on or before the deadlines
stated above. The Commission’s paper
filing requirements in 19 CFR 210.4(f)
are currently waived. 85 FR 15798 (Mar.
19, 2020). Submissions should refer to
the investigation number (‘‘Inv. No.
337–TA–1210’’) 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 at (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
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purposes of this investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. All nonconfidential written
submissions will be available for public
inspection on EDIS.
The Commission vote for this
determination took place on March 9,
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).
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).
By order of the Commission.
Issued: March 9, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–05384 Filed 3–14–22; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—The Open Group, L.L.C.
Notice is hereby given that, on March
2, 2022, pursuant to Section 6(a) of the
National Cooperative Research and
Production Act of 1993, 15 U.S.C. 4301
et seq. (‘‘the Act’’), The Open Group,
L.L.C. (‘‘TOG’’) has filed written
notifications simultaneously with the
Attorney General and the Federal Trade
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]]>Agencies
[Federal Register Volume 87, Number 50 (Tuesday, March 15, 2022)]
[Notices]
[Pages 14572-14574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05384]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1210]
Certain Wrapping Material and Methods for Use in Agricultural
Applications; Notice of Commission Determination To Review in Part a
Final Initial Determination Finding No Violation of Section 337;
Schedule for Filing Written Submissions; Extension of Target Date
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the final initial
determination (``final ID'') issued by the presiding administrative law
judge (``ALJ'') on December 10, 2021, finding no violation of section
337 of the Tariff Act of 1930, as amended. The Commission requests
briefing from the parties on certain issues under review, as indicated
in this notice. The Commission also requests briefing from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding. The Commission has also
determined to extend the target date for the completion of the
investigation to May 9, 2022.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.usitc.gov. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD terminal
on (202) 205-1810.
SUPPLEMENTARY INFORMATION: On August 11, 2020, the Commission
instituted this investigation based on a complaint filed on behalf of
Tama Group of Israel and Tama USA Inc. of Dubuque, Iowa (together,
``Tama''). 85 FR 48561-62 (Aug. 11, 2020). The complaint alleged
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based upon the importation into the United States, the
sale for importation, and the sale within the United States after
importation of certain wrapping material and methods for use in
agricultural applications by reason of infringement of one or more of
claims 1, 2, 4-16, 18, 28, 32, 33, and 35-45 of U.S. Patent No.
6,787,209 (``the '209 patent''). Id. The Commission's notice of
investigation named as respondents Zhejiang Yajia Cotton Picker Parts
Co., Ltd. of Zhuji City, China (``Yajia Cotton''); Southern Marketing
Affiliates, Inc. of Jonesboro, Arkansas (``SMA''); Hai'an Xin Fu Yuan
of Agricultural, Science, and Technology Co., Ltd. of Nantong, China
(``XFY''); and Gosun Business Development Co. Ltd. of Grande Prairie,
Canada (``Gosun''). Id. at 48561. The Office of Unfair Import
Investigations is not participating in this investigation. Id.
The Commission previously terminated this investigation with
respect to Gosun. Order No. 6, unreviewed by Notice (Oct. 5, 2020).
Based on Tama's motion, the Commission later amended the complaint
and notice of investigation to add Zhejiang Yajia Packaging Materials
Co., Ltd. (``Yajia Packaging'') as a respondent. Order No. 8,
unreviewed by Notice (Oct. 27, 2020); 85 FR 68,916 (Oct. 30, 2020).
Yajia Cotton and Yajia Packaging are collectively referred to herein as
``Yajia.'' Yajia, SMA, and XFY are collectively referred to herein as
``Respondents.''
On November 16, 2020, XFY was found in default pursuant to
Commission Rule 210.16 (19 CFR 210.16). Order No. 11, unreviewed by
Notice (Nov. 30, 2020).
On December 10, 2021, the ALJ issued the final ID, which found that
Respondents did not violate section 337. The final ID found (1) that
Tama no longer asserts claims 15, 16, 18, 28, and 45 of the `209
patent; (2) the importation or sale requirement of section 337 has been
satisfied; (3) the Accused Products infringe claims 1, 2, 4-7, and 10-
14 of the '209 patent; (4) Yajia and SMA do not infringe claims 32, 33,
35-38, and 41-44 of the '209 patent; (5) the technical prong of the
domestic industry requirement for the '209 patent has been satisfied;
(6) the '209 patent is not invalid; and (7) the economic prong of the
domestic industry requirement has not been satisfied. The ALJ's
Recommended Determination on remedy and bonding (``RD'') recommended
that should the Commission find a violation, it should issue a limited
exclusion order directed to certain wrapping material and methods for
use in agricultural applications imported, sold for importation, and/or
sold after
[[Page 14573]]
importation by respondents Yajia, SMA, and XFY. The RD further
recommended that the issuance of cease and desist orders would be
unnecessary. The RD additionally recommended that the Commission set a
bond during the period of Presidential review using a price
differential between the Accused Products and Tama's TamaWrap products.
Thus, the CALJ recommended that the Commission set a bond in the amount
of $119 (or 20%) for Tama's Premium product and $23 (or 4%) for Tama's
Blue Value product. The Commission did not instruct the CALJ to make
findings concerning the public interest.
On December 27, 2021, Yajia and SMA filed a joint petition for
review, and Tama also filed a petition for review. On January 4, 2022,
Yajia Cotton and SMA filed a joint response to Tama's petition for
review, and Tama filed a response to Yajia and SMA's joint petition for
review.
The Commission received no public interest comments from the public
in response to the Commission's Federal Register notice seeking comment
on the public interest. 86 FR 71664-65 (Dec. 17, 2021). Tama, Yajia,
and SMA did not submit any public interest comments pursuant to
Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)).
Having examined the record in this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID in part. In
particular, the Commission has determined to review the following:
(1) The final ID's findings that Yajia and SMA do not infringe
claims 32, 33, 35-38, and 41-44 directly or indirectly; and
(2) the final ID's finding that the economic prong of the domestic
industry requirement has not been satisfied.
The Commission has determined not to review the remainder of the final
ID.
The Commission has also determined to extend the target date for
the completion of the investigation to May 9, 2022.
The parties are requested to brief their positions with reference
to the applicable law and the evidentiary record regarding the
questions provided below:
(1) Under Commission and judicial precedent, section 337 and its
legislative history, and any other relevant authority, is a license
(express or otherwise) between Tama and John Deere & Co. (``Deere'')
necessary for the Commission to consider Deere's investments in its
On-Board Module Harvesters, including model numbers 7760, CP690, and
CS690 (``the Deere Machines''), towards Tama's satisfaction of the
economic prong of the domestic industry requirement? Or, is it
sufficient that Deere and Tama collaborated to design a system that
requires Tama's TamaWrap and Deere's Deere Machines? Is it necessary
that Tama authorized Deere to use the patented devices and methods?
(2) What evidence is in the record that shows that Deere was
authorized to use the '209 patent?
(3) Under Commission and judicial precedent, section 337 and its
legislative history, and any other relevant authority, if the
Commission considers Deere's investments in the categories listed in
section 337(a)(3)(A)-(C) towards the satisfaction of the economic
prong of the domestic industry requirement, to what extent and in
which statutory category(ies) should the Commission consider the
Deere expenditures? For example, should such expenditures be in
TamaWrap itself and/or the method of using TamaWrap; should such
expenditures be related to ensuring TamaWrap is compatible with the
Deere Machines; should such expenditures have some other connection
to TamaWrap and/or the '209 patent; or, should all expenditures
related to the Deere Machines in each relevant statutory category
contribute towards the satisfaction of the domestic industry
requirement?
(4) What evidence is in the record that Deere specifically
invested in TamaWrap and/or the method of using TamaWrap? For
example, what activities did Deere undertake to ensure the Deere
Machines would work well with TamaWrap?
(5) What part of the Deere Machines are specifically designed to
interact with TamaWrap and what, if any, of Deere's investments
asserted by Tama were specifically related to that portion of the
Deere Machines and/or ensuring that Deere Machines are compatible
with TamaWrap?
(6) Does the ``article[ ] protected by the patent'' (19 U.S.C.
1337(a)(3)) differ for the asserted apparatus claims and method
claims? For example, are the Deere Machines ``articles protected by
the patent'' with respect to the method claims while only the
TamaWrap is an ``article[ ] protected by the patent'' with respect
to the apparatus claim? If the articles protected by the patent
differ as between the apparatus and the method claims, please
provide a chart with supporting citations to the record indicating
the expenditures for each statutory category for the respective
apparatus and method claims.
(7) Can the Commission consider Deere's expenditures related to
the Deere Machines under an ``article of commerce theory''? See,
e.g., Certain Video Game Sys. & Wireless Controllers & Components
Thereof, Inv. No. 337-TA-770, Comm'n Op. at 66-70 (Oct. 28, 2013)
(Public Version) (``Video Game Sys.'').
(8) To what extent do Deere's activities related to the Deere
Machines have a direct relationship to the exploitation of the
patented technology, and to what extent can the expenditures be
considered on that basis? See, e.g., Video Game Sys., Comm'n Op. at
67-68.
(9) To what extent do the ``realities of the marketplace''
require Deere's expenditures in the Deere Machines for Tama to sell
TamaWrap (or articles practicing the Asserted Patent)? See, e.g.,
Video Game Sys., Comm'n Op. at 8.
(10) Were the expenditures related to the Deere Machines
necessary to bringing TamaWrap to the consumer market, and if so,
should the Commission consider those expenditures, and to what
extent? See, e.g., Video Game Sys., Comm'n Op. at 69-70; Certain
Digital Set-Top Boxes & Components Thereof, Inv. No. 337-TA-712,
Order No. 33 (Jan. 11, 2011), aff'd in part, Notice (July 21, 2011).
(11) Were the expenditures related to the Deere Machines central
to the exploitation of TamaWrap, and if so, should the Commission
consider those expenditures, and to what extent? See, e.g., Certain
Magnetic Tape Cartridges & Components Thereof, Inv. No. 337-TA-1058,
Comm'n Op. at 50 (Apr. 9, 2019) (Public Version); Certain Sleep-
Disordered Breathing Treatment Sys. & Components Thereof, Inv. No.
337-TA-890, Final ID at 147-50 (Sept. 16, 2014) (Public Version),
unreviewed in relevant part by Notice, (Oct. 16, 2014).
(12) With citations to record evidence and any relevant
Commission and/or judicial precedent, including, e.g., Certain In
Vitro Fertilization Products, Components Thereof, and Products
Containing the Same, Inv. No. 337-TA-1196, Dissenting Views of
Commissioners Schmidtlein and Karpel (Oct. 28, 2021), please discuss
whether Tama's domestic activities as a whole indicate that it is
more than a ``mere importer.'' Please note that this question is
different from Question 13.
(13) With citations to record evidence and any relevant
Commission and/or judicial precedent, please discuss whether Tama's
qualifying domestic activities indicate that it is more than a
``mere importer.''
(14) Please indicate how Tama's claimed investments in the
acquisition of Ambraco, components, administrative fees, and
administrative expenses qualify as investments in ``labor or
capital'' under section 337(a)(3)(B)? Please allocate those
investments with respect to the articles protected by the patent and
to those portions attributable to labor or capital.
(15) What arguments were presented to the ALJ that the amount of
Deere's investment were significant or substantial?
(16) To the extent Tama is not a mere importer and certain
domestic activities and investments with respect to the asserted
patent excluded by the final ID (see e.g., certain warehousing,
inventory, logistics, finance, invoicing, account management, and/or
promotion, marketing, and sales expenditures) should be credited as
cognizable domestic industry investments, please discuss whether
Tama's cognizable domestic industry investments (apart from any
investments by Deere) are significant or substantial within the
meaning of section 337(a)(3)(A)-(C), with citation to record
evidence.
(17) To the extent investments by Deere are considered by the
Commission along with the investments excluded by the final ID (see,
e.g., certain warehousing, inventory, logistics, finance, invoicing,
account
[[Page 14574]]
management, and/or promotion, marketing, and sales expenditures)
with respect to satisfaction of the economic prong of the domestic
industry requirement under section 337(a)(3)(A)-(C), please discuss
whether domestic industry investments are significant or substantial
within the meaning of section 337(a)(3)(A)-(C), with citation to
record evidence.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States, and/or (2) cease and desist orders that could result
in the respondents being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or are 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).
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or cease and desist orders would have on: (1) The public health and
welfare, (2) competitive conditions in the U.S. economy, (3) U.S.
production of articles that are like or directly competitive with those
that are subject to investigation, and (4) U.S. consumers. The
Commission is therefore interested in receiving written submissions
that address the aforementioned public interest factors in the context
of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. See
Presidential Memorandum of July 21, 2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles would be entitled to enter the
United States under bond, in an amount determined by the Commission and
prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: The parties to the investigation are requested
to file written submissions on the questions identified in this notice.
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 initial
written submissions should include views on the RD that issued on
December 10, 2021.
Initial written submissions, limited to 80 pages, must be filed no
later than the close of business on March 23, 2022. Complainants are
requested to identify the form of the remedy sought and to submit
proposed remedial orders for the Commission's consideration.
Complainants are also requested to state the HTSUS subheadings under
which the accused articles are imported, and to supply identification
information for all known importers of the accused products. Reply
submissions, limited to 50 pages, must be filed no later than the close
of business on March 30, 2022. No further submissions on these issues
will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1210'') 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 at (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. A redacted
non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on March 9,
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).
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).
By order of the Commission.
Issued: March 9, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-05384 Filed 3-14-22; 8:45 am]
BILLING CODE 7020-02-P
