Certain Wearable Electronic Devices With ECG Functionality and Components Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target Date, 58819-58821 [2022-20959]
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Federal Register / Vol. 87, No. 187 / Wednesday, September 28, 2022 / Notices
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[FR Doc. 2022–21028 Filed 9–27–22; 8:45 am]
BILLING CODE 4337–15–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1266]
Certain Wearable Electronic Devices
With ECG Functionality and
Components Thereof; Notice of a
Commission Determination To Review
in Part a Final Initial Determination
Finding a Violation of Section 337;
Request for Written Submissions on
the Issues Under Review and on
Remedy, the Public Interest, and
Bonding; Extension of the Target Date
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to review in part a final
initial determination (‘‘ID’’) of the
presiding administrative law judge
(‘‘ALJ’’), finding a violation of section
337 as to two of the three asserted
patents. The Commission requests
written submissions from the parties on
the issues under review and from the
parties, interested government agencies,
and other interested persons on the
issues of remedy, the public interest,
and bonding, under the schedule set
forth below.
FOR FURTHER INFORMATION CONTACT:
Panyin A. Hughes, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3042. 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
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SUMMARY:
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Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: On May
26, 2021, the Commission instituted this
investigation based on a complaint filed
by AliveCor, Inc. of Mountain View,
California (‘‘AliveCor’’). 86 FR 28382
(May 26, 2021). The complaint alleged
violations of section 337 based on the
importation into the United States, the
sale for importation, or the sale within
the United States after importation of
certain wearable electronic devices with
ECG functionality and components
thereof by reason of infringement of one
or more of claims 1–30 of U.S. Patent
No. 10,595,731 (‘‘the ’731 patent’’);
claims 1–23 of U.S. Patent No.
10,638,941 (‘‘the ’941 patent’’); and
claims 1–4, 6–14, 16–20 of U.S. Patent
No. 9,572,499 (‘‘the ’499 patent’’). Id.
The Commission’s notice of
investigation named Apple Inc. of
Cupertino, California (‘‘Apple’’) as the
sole respondent. The Office of Unfair
Import Investigations (‘‘OUII’’) is named
as a party in this investigation. Id.
On February 23, 2022, the ALJ issued
an initial determination granting
AliveCor’s motion to terminate the
investigation as to (1) claims 1–4, 6–14,
and 18–20 of the ’499 patent; (2) claims
2, 4, 6, 7, 11, 13, 14, and 17–30 of the
’731 patent; and (3) claims 1–11, 14, 15,
17, and 18 of the ’941 patent based upon
withdrawal of allegations from the
complaint as to those claims. Order No.
16 (Feb. 23, 2022), unreviewed by Notice
(Mar. 18, 2022).
On June 27, 2022, the ALJ issued the
final initial determination (‘‘ID’’) finding
a violation of section 337 as to the ’941
and ’731 patents, and no violation of
section 337 as to the ’499 patent.1 The
ID found that the parties do not contest
personal jurisdiction, and that the
Commission has in rem jurisdiction
over the accused products. ID at 18. The
ID further found that the importation
requirement under 19 U.S.C.
1337(a)(1)(B) is satisfied. Id. (citing CX–
0904C (Apple stipulating that it imports
the accused products into the United
States)). Regarding the ’941 patent, the
ID found that AliveCor has proven
infringement of the asserted claims,
claims 12, 13, 19, and 20–23, and that
Apple failed to show that any of the
asserted claims are invalid. Id. at 30–45,
60–98. For the ’731 patent, the ID found
that AliveCor has proven infringement
of the asserted claims, claims 1, 3, 5, 8–
10, 12, 15, and 16, but that Apple has
proven that claims 1, 8, 12, and 16 are
invalid for obviousness. Id. at 105–108,
113–127. For the ’499 patent, the ID
1 The ALJ issued a corrected final ID on July 26,
2022, correcting the table of contents.
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58819
found that AliveCor failed to prove
infringement of the asserted claims,
claims 16 and 17, and that claim 17 is
invalid for lack of patentable subject
matter under 35 U.S.C. 101. Id. at 129–
138, 140–152. Finally, the ID found that
AliveCor has proven the existence of a
domestic industry that practices the
asserted patents as required by 19 U.S.C.
1337(a)(2). Id. at 152–183. The ID
included the ALJ’s recommended
determination on remedy and bonding
(‘‘RD’’). The RD recommended that,
should the Commission find a violation,
issuance of a limited exclusion order
and cease and desist orders would be
appropriate. ID/RD at 190–193. The RD
also recommended imposing no bond
for covered products imported during
the period of Presidential review. ID at
193–95.
On July 11, 2022, Apple filed a
petition for review of the ID, and
AliveCor filed a combined petition and
contingent petition for review of the ID.
On July 19, 2022, the private parties and
OUII’s investigative attorney filed
responses to the petitions.
Having reviewed the record of the
investigation, including the final ID, the
parties’ submissions to the ALJ, the
petitions for review, and the responses
thereto, the Commission has determined
to review the ID in part. Specifically, the
Commission has determined to review
the final ID’s invalidity findings,
including patent eligibility under 35
U.S.C. 101 and obviousness under 35
U.S.C. 103, and the economic prong of
the domestic industry requirement.
In connection with its review, the
Commission requests responses from
the parties to the following questions.
The parties are requested to brief their
positions with reference to the
applicable law and the existing
evidentiary record.
(1) Discuss whether the record
evidence of ‘‘industry praise’’ and
‘‘copying’’ is sufficient to establish the
requisite objective indicia of nonobviousness. See Graham v. John Deere
Co. of Kansas City, 383 U.S. 1, 17–18
(1966).
(2) Please explain whether and how
the Complainant’s investments credited
by the ID under subsection 337(a)(3)(B)
are quantitatively and qualitatively
significant.
(3) Please explain whether and how
the Complainant’s employment of labor
in research and development in the
exploitation of the patents under
subsection 337(a)(3)(C) are
quantitatively and qualitatively
substantial. Please state whether the
R&D contract labor amount credited by
the ID under subsection 337(a)(3)(C)
includes foreign contract labor and, if
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so, please quantify such included
amounts.
(4) What is the factual and legal basis
for crediting Complainant’s investments
in the KBP and PRD products toward
satisfaction of the domestic industry
requirement under subsection (C)?
The parties are invited to brief only
these discrete questions. The parties are
not to brief other issues on review,
which are adequately presented in the
parties’ existing filings.
In connection with the final
disposition of this investigation, the
statute authorizes issuance of, inter alia,
(1) an exclusion order that could result
in the exclusion of the subject articles
from entry into the United States; and/
or (2) cease and desist orders that could
result in the respondent 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).
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 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. In
particular, the Commission requests that
the parties, interested government
agencies, and interested persons
respond to the following:
(1) Please provide information and
argument that responds to the
statements on the public interest
submitted on the public record by the
parties and the various third parties.
(2) Please provide data and factual
information that specifically addresses
whether and to what extent each of the
four public interest factors would be
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adversely impacted by the remedial
orders recommended in the RD,
including details regarding the extent to
which alternatives to the infringing
products would be available to replace
the infringing products and address the
public health and welfare concerns
raised.
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 and to
provide factual information and data
requested above with respect to the
public interest, including responding to
the submissions of the parties and third
parties that are in the record of this
investigation. Such submissions should
address the recommended
determination by the ALJ on remedy
and bonding.
In its initial submission, Complainant
is also requested to identify the remedy
sought and Complainant and OUII are
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainant is further
requested to provide the HTSUS
subheadings under which the accused
products are imported, and to supply
the identification information for all
known importers of the products at
issue in this investigation. The initial
written submissions and proposed
remedial orders must be filed no later
than close of business on October 6,
2022. Reply submissions must be filed
no later than the close of business on
October 13, 2022. No further
submissions on these issues will be
permitted unless otherwise ordered by
the Commission. Opening submissions
are limited to 75 pages. Reply
submissions are limited to 50 pages. No
further submissions on any of these
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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–1266) 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. Any non-party
wishing to submit comments containing
confidential information must serve
those comments on the parties to the
investigation pursuant to the applicable
Administrative Protective Order. A
redacted non-confidential version of the
document must also be filed with the
Commission and served on any parties
to the investigation within two business
days of 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 has determined to
extend the target date to December 12,
2022.
The Commission vote for this
determination took place on September
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Federal Register / Vol. 87, No. 187 / Wednesday, September 28, 2022 / Notices
22, 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).
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 731–TA–1578–1579
(Final)]
Lemon Juice From Brazil and South
Africa; Revised Schedule for the
Subject Investigations
By order of the Commission.
Issued: September 22, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
United States International
Trade Commission.
ACTION: Notice.
AGENCY:
[FR Doc. 2022–20959 Filed 9–27–22; 8:45 am]
DATES:
BILLING CODE 7020–02–P
September 22, 2022.
FOR FURTHER INFORMATION CONTACT:
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 701–TA–555 and 731–
TA–1310 (Review)]
Certain Amorphous Silica Fabric From
China; Determinations
On the basis of the record 1 developed
in the subject five-year reviews, the
United States International Trade
Commission (‘‘Commission’’)
determines, pursuant to the Tariff Act of
1930 (‘‘the Act’’), that revocation of the
countervailing and antidumping duty
orders on certain amorphous silica
fabric from China would be likely to
lead to continuation or recurrence of
material injury to an industry in the
United States within a reasonably
foreseeable time.
Background
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The Commission instituted these
reviews on February 1, 2022 (87 FR
5511) and determined on May 9, 2022,
that it would conduct expedited reviews
(87 FR 53488, August 31, 2022).
The Commission made these
determinations pursuant to section
751(c) of the Act (19 U.S.C. 1675(c)). It
completed and filed its determinations
in these reviews on September 22, 2022.
The views of the Commission are
contained in USITC Publication 5368
(September 2022), entitled Certain
Amorphous Silica Fabric from China:
Investigation Nos. 701–TA–555 and
731–TA–1310 (Review).
By order of the Commission.
Issued: September 22, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022–20936 Filed 9–27–22; 8:45 am]
BILLING CODE 7020–02–P
1 The record is defined in § 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
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18:06 Sep 27, 2022
Jkt 256001
Stamen Borisson (202–205–3125), Office
of Investigations, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436. Hearingimpaired persons can obtain
information on this matter by contacting
the Commission’s TDD terminal on 202–
205–1810. Persons with mobility
impairments who will need special
assistance in gaining access to the
Commission should contact the Office
of the Secretary at 202–205–2000.
General information concerning the
Commission may also be obtained by
accessing its internet server (https://
www.usitc.gov). The public record for
these investigations may be viewed on
the Commission’s electronic docket
(EDIS) at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION: On July
28, 2022, the Commission established a
schedule for the conduct of the final
phase of the subject investigations (87
FR 51701, August 23, 2022) as a result
of affirmative preliminary
determinations by the Department of
Commerce (‘‘Commerce’’) regarding
imports of lemon juice from Brazil and
South Africa. Commerce had extended
the date for its final determination with
respect to Brazil but not for South
Africa. Subsequently, Commerce
extended the date for its final
determination in the investigation of
South Africa from October 11, 2022, to
December 19, 2022 (87 FR 56631,
September 15, 2022). The Commission,
therefore, is revising its schedule to
conform with Commerce’s new
schedule. The Commission also gives
notice that the hearing in connection
with the final phase of these
investigations will not be held on
October 11 but instead will be held inperson at the U.S. International Trade
Commission Building beginning at 9:30
a.m. on December 15, 2022.
The Commission’s revised dates in
the schedule are as follows: the
prehearing staff report will be placed in
the nonpublic record on November 30,
2022; the deadline for filing prehearing
briefs is December 7, 2022; requests to
PO 00000
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58821
appear at the hearing must be filed with
the Secretary to the Commission not
later than December 9, 2022; the
prehearing conference will be held at
the U.S. International Trade
Commission Building on December 9,
2022, if deemed necessary; the hearing
will be held at the U.S. International
Trade Commission Building at 9:30 a.m.
on December 15, 2022; the deadline for
filing posthearing briefs is December 22,
2022; the Commission will make its
final release of information on January
13, 2023; and final party comments are
due on January 18, 2023.
Hearing.—The Commission will hold
an in-person hearing in connection with
the final phase of these investigations at
the U.S. International Trade
Commission Building beginning at 9:30
a.m. on December 15, 2022. Requests to
appear at the hearing should be filed in
writing with the Secretary to the
Commission on or before December 9,
2022. Any requests to appear as a
witness via videoconference must be
included with your request to appear.
Requests to appear via videoconference
must include a statement explaining
why the witness cannot appear in
person; the Chairman, or other person
designated to conduct the
investigations, may in their discretion
for good cause shown, grant such a
request. Requests to appear as remote
witness due to illness or a positive
COVID–19 test result may be submitted
by 3 p.m. the business day prior to the
hearing. Further information about
participation in the hearing will be
posted on the Commission’s website at
https://www.usitc.gov/calendarpad/
calendar.html.
A nonparty who has testimony that
may aid the Commission’s deliberations
may request permission to present a
short statement at the hearing. All
parties and nonparties desiring to
appear at the hearing and make oral
presentations should attend a
prehearing conference to be held at 9:30
a.m. on December 9, 2022, if deemed
necessary. Parties shall file and serve
written testimony and presentation
slides in connection with their
presentation at the hearing by no later
than 4:00 p.m. on December 14, 2022.
Oral testimony and written materials to
be submitted with respect for the public
hearing are governed by sections
201.6(b)(2), 201.13(f), and 207.24 of the
Commission’s rules. Parties must submit
any request to present a portion of their
hearing testimony in camera no later
than 7 business days prior to the date of
the hearing.
Written submissions.—Each party
who is an interested party shall submit
a prehearing brief to the Commission.
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]]>Agencies
[Federal Register Volume 87, Number 187 (Wednesday, September 28, 2022)]
[Notices]
[Pages 58819-58821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20959]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1266]
Certain Wearable Electronic Devices With ECG Functionality and
Components Thereof; Notice of a Commission Determination To Review in
Part a Final Initial Determination Finding a Violation of Section 337;
Request for Written Submissions on the Issues Under Review and on
Remedy, the Public Interest, and Bonding; Extension of the Target Date
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part a final
initial determination (``ID'') of the presiding administrative law
judge (``ALJ''), finding a violation of section 337 as to two of the
three asserted patents. The Commission requests written submissions
from the parties on the issues under review and from the parties,
interested government agencies, and other interested persons on the
issues of remedy, the public interest, and bonding, under the schedule
set forth below.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3042. 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 May 26, 2021, the Commission instituted
this investigation based on a complaint filed by AliveCor, Inc. of
Mountain View, California (``AliveCor''). 86 FR 28382 (May 26, 2021).
The complaint alleged violations of section 337 based on the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain wearable
electronic devices with ECG functionality and components thereof by
reason of infringement of one or more of claims 1-30 of U.S. Patent No.
10,595,731 (``the '731 patent''); claims 1-23 of U.S. Patent No.
10,638,941 (``the '941 patent''); and claims 1-4, 6-14, 16-20 of U.S.
Patent No. 9,572,499 (``the '499 patent''). Id. The Commission's notice
of investigation named Apple Inc. of Cupertino, California (``Apple'')
as the sole respondent. The Office of Unfair Import Investigations
(``OUII'') is named as a party in this investigation. Id.
On February 23, 2022, the ALJ issued an initial determination
granting AliveCor's motion to terminate the investigation as to (1)
claims 1-4, 6-14, and 18-20 of the '499 patent; (2) claims 2, 4, 6, 7,
11, 13, 14, and 17-30 of the '731 patent; and (3) claims 1-11, 14, 15,
17, and 18 of the '941 patent based upon withdrawal of allegations from
the complaint as to those claims. Order No. 16 (Feb. 23, 2022),
unreviewed by Notice (Mar. 18, 2022).
On June 27, 2022, the ALJ issued the final initial determination
(``ID'') finding a violation of section 337 as to the '941 and '731
patents, and no violation of section 337 as to the '499 patent.\1\ The
ID found that the parties do not contest personal jurisdiction, and
that the Commission has in rem jurisdiction over the accused products.
ID at 18. The ID further found that the importation requirement under
19 U.S.C. 1337(a)(1)(B) is satisfied. Id. (citing CX-0904C (Apple
stipulating that it imports the accused products into the United
States)). Regarding the '941 patent, the ID found that AliveCor has
proven infringement of the asserted claims, claims 12, 13, 19, and 20-
23, and that Apple failed to show that any of the asserted claims are
invalid. Id. at 30-45, 60-98. For the '731 patent, the ID found that
AliveCor has proven infringement of the asserted claims, claims 1, 3,
5, 8-10, 12, 15, and 16, but that Apple has proven that claims 1, 8,
12, and 16 are invalid for obviousness. Id. at 105-108, 113-127. For
the '499 patent, the ID found that AliveCor failed to prove
infringement of the asserted claims, claims 16 and 17, and that claim
17 is invalid for lack of patentable subject matter under 35 U.S.C.
101. Id. at 129-138, 140-152. Finally, the ID found that AliveCor has
proven the existence of a domestic industry that practices the asserted
patents as required by 19 U.S.C. 1337(a)(2). Id. at 152-183. The ID
included the ALJ's recommended determination on remedy and bonding
(``RD''). The RD recommended that, should the Commission find a
violation, issuance of a limited exclusion order and cease and desist
orders would be appropriate. ID/RD at 190-193. The RD also recommended
imposing no bond for covered products imported during the period of
Presidential review. ID at 193-95.
---------------------------------------------------------------------------
\1\ The ALJ issued a corrected final ID on July 26, 2022,
correcting the table of contents.
---------------------------------------------------------------------------
On July 11, 2022, Apple filed a petition for review of the ID, and
AliveCor filed a combined petition and contingent petition for review
of the ID. On July 19, 2022, the private parties and OUII's
investigative attorney filed responses to the petitions.
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, the petitions for
review, and the responses thereto, the Commission has determined to
review the ID in part. Specifically, the Commission has determined to
review the final ID's invalidity findings, including patent eligibility
under 35 U.S.C. 101 and obviousness under 35 U.S.C. 103, and the
economic prong of the domestic industry requirement.
In connection with its review, the Commission requests responses
from the parties to the following questions. The parties are requested
to brief their positions with reference to the applicable law and the
existing evidentiary record.
(1) Discuss whether the record evidence of ``industry praise'' and
``copying'' is sufficient to establish the requisite objective indicia
of non-obviousness. See Graham v. John Deere Co. of Kansas City, 383
U.S. 1, 17-18 (1966).
(2) Please explain whether and how the Complainant's investments
credited by the ID under subsection 337(a)(3)(B) are quantitatively and
qualitatively significant.
(3) Please explain whether and how the Complainant's employment of
labor in research and development in the exploitation of the patents
under subsection 337(a)(3)(C) are quantitatively and qualitatively
substantial. Please state whether the R&D contract labor amount
credited by the ID under subsection 337(a)(3)(C) includes foreign
contract labor and, if
[[Page 58820]]
so, please quantify such included amounts.
(4) What is the factual and legal basis for crediting Complainant's
investments in the KBP and PRD products toward satisfaction of the
domestic industry requirement under subsection (C)?
The parties are invited to brief only these discrete questions. The
parties are not to brief other issues on review, which are adequately
presented in the parties' existing filings.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States; and/or (2) cease and desist orders that could result
in the respondent 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).
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
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. In particular, the Commission requests that the
parties, interested government agencies, and interested persons respond
to the following:
(1) Please provide information and argument that responds to the
statements on the public interest submitted on the public record by the
parties and the various third parties.
(2) Please provide data and factual information that specifically
addresses whether and to what extent each of the four public interest
factors would be adversely impacted by the remedial orders recommended
in the RD, including details regarding the extent to which alternatives
to the infringing products would be available to replace the infringing
products and address the public health and welfare concerns raised.
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 and to provide
factual information and data requested above with respect to the public
interest, including responding to the submissions of the parties and
third parties that are in the record of this investigation. Such
submissions should address the recommended determination by the ALJ on
remedy and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested to provide the HTSUS subheadings under
which the accused products are imported, and to supply the
identification information for all known importers of the products at
issue in this investigation. The initial written submissions and
proposed remedial orders must be filed no later than close of business
on October 6, 2022. Reply submissions must be filed no later than the
close of business on October 13, 2022. No further submissions on these
issues will be permitted unless otherwise ordered by the Commission.
Opening submissions are limited to 75 pages. Reply submissions are
limited to 50 pages. 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-1266) 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. Any non-
party wishing to submit comments containing confidential information
must serve those comments on the parties to the investigation pursuant
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the
Commission and served on any parties to the investigation within two
business days of 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 has determined to extend the target date to December
12, 2022.
The Commission vote for this determination took place on September
[[Page 58821]]
22, 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: September 22, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-20959 Filed 9-27-22; 8:45 am]
BILLING CODE 7020-02-P
