Certain Artificial Eyelash Extension Systems, Products, and Components Thereof; Notice of the Commission's Final Determination Finding No Violation of Section 337; Termination of the Investigation, 62455-62456 [2022-22287]
Download as PDF
<![CDATA[
jspears on DSK121TN23PROD with NOTICES
Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Notices
Scope of Investigation: Having
considered the complaint, the U.S.
International Trade Commission, on
October 6, 2022, ordered that—
(1) Pursuant to subsection (b) of
section 337 of the Tariff Act of 1930, as
amended, an investigation be instituted
to determine whether there is a
violation of subsection (a)(1)(B) of
section 337 in the importation into the
United States, the sale for importation,
or the sale within the United States after
importation of certain products
identified in paragraph (2) by reason of
infringement of one or more of claims
1–18 of the ’833 patent; claims 1–18 of
the ’494 patent; claims 1–17 of the ’895
patent; claims 1–24 of the ’080 patent;
claims 1–19 of the ’300 patent; and
claims 1–20 of the ’588 patent, and
whether an industry in the United
States exists or is in the process of being
established as required by subsection
(a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of
the Commission’s Rules of Practice and
Procedure, 19 CFR 210.10(b)(1), the
plain language description of the
accused products or category of accused
products, which defines the scope of the
investigation, is ‘‘semiconductor chips
and printed circuit boards for use in
automobile infotainment systems and
instrument clusters, and automobile
infotainment systems, instrument
clusters, and automobiles containing the
same, and components thereof’’;
(3) Pursuant to Commission Rule
210.50(b)(l), 19 CFR 210.50(b)(1), the
presiding administrative law judge shall
take evidence or other information and
hear arguments from the parties or other
interested persons with respect to the
public interest in this investigation, as
appropriate, and provide the
Commission with findings of fact and a
recommended determination on this
issue, which shall be limited to the
statutory public interest factors set forth
in 19 U.S.C. l337(d)(l), (f)(1), (g)(1)
(4) For the purpose of the
investigation so instituted, the following
are hereby named as parties upon which
this notice of investigation shall be
served:
(a) The complainant is:
Daedalus Prime LLC, 51 Pondfield
Road, Suite 3, Bronxville, NY 10708
(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:
Avnet, Inc., 2211 South 47th Street,
Phoenix, AZ 85034
Digi-Key Electronics, 701 Brooks
Avenue South, Thief River Falls, MN
56701
VerDate Sep<11>2014
17:22 Oct 13, 2022
Jkt 259001
Mercedes-Benz Group AG, 70546
Stuttgart, Germany
Mercedes-Benz AG, Epplestrabe 225,
70567 Stuttgart-Mo¨hringen, Germany
Mercedes-Benz USA, LLC, 1 MercedesBenz Drive, Sandy Springs, GA 30328
Mouser Electronics, Inc., 1000 North
Main Street, Mansfield, TX 76063
Newark, 300 S Riverside Plaza, Suite
2200, Chicago, IL 60606
NXP Semiconductors N.V., High Tech
Campus 60, 5656 AG Eindhoven,
Netherlands
NXP USA, Inc., 6501 W William
Cannon Dr., Austin, TX 78735
(c) The Office of Unfair Import
Investigations, U.S. International Trade
Commission, 500 E Street SW, Suite
401, Washington, DC 20436; and
(5) For the investigation so instituted,
the Chief Administrative Law Judge,
U.S. International Trade Commission,
shall designate the presiding
Administrative Law Judge.
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 complainant 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: October 7, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022–22288 Filed 10–13–22; 8:45 am]
BILLING CODE 7020–02–P
PO 00000
Frm 00097
Fmt 4703
Sfmt 4703
62455
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1226]
Certain Artificial Eyelash Extension
Systems, Products, and Components
Thereof; Notice of the Commission’s
Final Determination Finding No
Violation of Section 337; Termination
of the Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has found
no violation of section 337 of the Tariff
Act of 1930, as amended, in the abovecaptioned investigation. The
investigation is terminated.
FOR FURTHER INFORMATION CONTACT:
Lynde Herzbach, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3228. 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
October 28, 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
Lashify, Inc. of Glendale, California
(‘‘Lashify’’). See 85 FR 68366–67 (Oct.
28, 2020). The complaint, as
supplemented, alleges a violation of
section 337 based upon the importation
into the United States, sale for
importation, or sale after importation
into the United States of certain
artificial eyelash extension systems,
products, and components thereof by
reason of infringement of certain claims
of U.S. Patent Nos. 10,660,388 (‘‘the
’388 patent’’) and 10,721,984 (‘‘the ’984
patent’’), and the sole claims of U.S.
Design Patent Nos. D877,416 (‘‘the
D’416 patent’’) and D867,664 (‘‘the
D’664 patent’’), respectively
(collectively, the ‘‘Asserted Patents’’).
The complaint also alleges the existence
of a domestic industry. The notice of
SUMMARY:
E:\FR\FM\14OCN1.SGM
14OCN1
jspears on DSK121TN23PROD with NOTICES
62456
Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Notices
investigation (‘‘NOI’’) names nine
respondents, including: KISS Nail
Products, Inc. of Port Washington, New
York (‘‘KISS’’); Ulta Beauty, Inc. of
Bolingbrook, Illinois; CVS Health
Corporation of Woonsocket, Rhode
Island; Walmart, Inc. of Bentonville,
Arkansas (‘‘Walmart’’); Qingdao
Hollyren Cosmetics Co., Ltd. d/b/a
Hollyren of Shandong Province, China
(‘‘Hollyren’’); Qingdao Xizi International
Trading Co., Ltd. d/b/a Xizi Lashes of
Shandong Province, China (‘‘Xizi
Lashes’’); Qingdao LashBeauty Cosmetic
Co., Ltd. d/b/a Worldbeauty of Qingdao,
China (‘‘Worldbeauty’’); Alicia Zeng d/
b/a Lilac St. and Artemis Family
Beginnings, Inc. of San Francisco,
California (collectively, ‘‘Lilac’’); and
Rachael Gleason d/b/a Avant Garde
Beauty Co. of Dallas, Texas. Id. The
Office of Unfair Import Investigations
(‘‘OUII’’) is also a party to the
investigation. Id.
The Commission later amended the
complaint and NOI to substitute CVS
Pharmacy, Inc. of Woonsocket, Rhode
Island (‘‘CVS’’) in place of named
respondent CVS Health Corporation and
Ulta Salon, Cosmetics & Fragrance, Inc.
of Bolingbrook, Illinois (‘‘Ulta’’) in place
of named respondent Ulta Beauty, Inc.
See Order No. 10, unreviewed by
Comm’n Notice (Feb. 10, 2021); see also
86 FR 9535 (Feb. 16, 2021).
The Commission previously
terminated the investigation as to claims
2–4 and 7 of the ’388 patent and claims
6–8, 12, 18–19, 25–26, and 29 of the
’984 patent based on Lashify’s partial
withdrawal of the complaint. See Order
No. 24 (Apr. 23, 2021), unreviewed by
Comm’n Notice (May 11, 2021). The
Commission also previously terminated
claims 2–5, 10–11, 14, 17, 21–22, and 24
of the ’984 patent from the investigation.
See Order No. 38 (June 22, 2021),
unreviewed by Comm’n Notice (July 6,
2021).
The Commission previously
terminated Rachael Gleason d/b/a Avant
Garde Beauty Company from the
investigation based on a Consent Order.
See Order No. 28, unreviewed by
Comm’n Notice (May 20, 2021).
The Commission previously
determined that Lashify failed to satisfy
the technical prong of the domestic
industry requirement for the ’388
patent, thus terminating that patent
from the investigation. See Order No.
35, unreviewed by Comm’n Notice (July
9, 2021).
Prior to the issuance of the final
initial determination, the remaining
respondents included: KISS, Ulta, CVS,
Walmart, Hollyren, Xizi Lashes,
Worldbeauty, and Lilac (collectively,
‘‘Respondents’’).
VerDate Sep<11>2014
17:22 Oct 13, 2022
Jkt 259001
On October 28, 2021, the presiding
administrative law judge issued a final
initial determination (‘‘FID’’), finding
that no violation of section 337 has
occurred in the importation into the
United States, the sale for importation,
or the sale within the United States after
importation, of certain artificial eyelash
extension systems, products, and
components thereof. FID at 141–142.
The FID finds that two accused products
infringe the ’984 patent and the’984
patent is not invalid, but also finds that
Lashify has failed to satisfy the
technical prong of the domestic industry
requirement with respect to the ’984
patent. The FID further finds that the
D’416 patent and D’664 patent are
infringed and not invalid, and that
Lashify satisfied the technical prong
with respect to both design patents. The
FID further finds that Lashify has failed
to satisfy the economic prong of the
domestic industry requirement with
respect to all of the Asserted Patents
remaining in the investigation.
On November 29, 2021, respondents
KISS, Ulta, Walmart, and CVS filed a
joint submission on the public interest
pursuant to Commission Rule
210.50(a)(4) (19 CFR 210.50 (a)(4)).
Lashify and OUII did not file a
statement on the public interest. No
submissions were received in response
to the Commission notice seeking public
interest submissions. 86 FR 62844–45
(Nov. 12, 2021).
On January 20, 2022, the Commission
determined to review the FID in part. 87
FR 4044–46 (Jan. 26, 2022). Specifically
for the ’984 patent, the Commission
reviewed the FID’s findings regarding
the technical prong of the domestic
industry requirement and the FID’s
findings that the asserted claims of the
’984 patent are not invalid as obvious.
Id. at 4045. The Commission also
reviewed the FID’s findings regarding
the economic prong of the domestic
industry requirement. Id. The
Commission asked the parties to address
two questions related to the issues
under review with respect to the
economic prong of the domestic
industry requirement. Id.
On February 3, 2022, Lashify,
Respondents, and OUII each filed an
initial written response to the
Commission’s request for briefing. On
February 10, 2022, Lashify,
Respondents, and OUII each filed a
reply submission.
Having reviewed the record of the
investigation, including the FID and the
parties’ submissions, the Commission
has determined to find no violation of
section 337 as to any Asserted Patent.
Specifically, with respect to the ’984
patent, the Commission has determined
PO 00000
Frm 00098
Fmt 4703
Sfmt 9990
to: (1) affirm, with supplemental
analysis, the FID’s finding that Lashify
has failed to satisfy the technical prong
of the domestic industry requirement;
and (2) take no position regarding
whether claims 1, 9, 23, and 27 of the
’984 patent are invalid for obviousness
under 35 U.S.C. 103. The Commission
has further determined to affirm, with
supplemental reasoning, the FID’s
finding that Lashify failed to satisfy the
economic prong of the domestic
industry requirement for any of the
Asserted Patents. Commissioners Karpel
and Schmidtlein concur in the
determination of no violation as to the
’984 patent. However, they find a
violation of section 337 as to the D’416
and D’664 patents. Specifically, they
find that Lashify has satisfied the
economic prong of the domestic
industry requirement under subsection
337(a)(3)(B), but not under subsection
337(a)(3)(A), with respect to the D’416
and D’664 patents. They take no
position on subsection 337(a)(3)(C) with
respect to the D’416 and D’664 patents,
or on whether Lashify satisfies the
economic prong for the ’984 patent.
The investigation is terminated with a
finding of no violation of section 337.
The Commission’s reasoning in support
of its determinations is set forth more
fully in its opinion. The reasoning in
support of the separate views of
Commissioners Karpel and Schmidtlein
is set forth in the Separate Views of
Commissioners Karpel and Schmidtlein
in Dissent on the Economic Prong of the
Domestic Industry Requirement as to
U.S. Design Patent Nos. D877,416 and
D867,664, issued concurrently
therewith.
The Commission vote for this
determination took place on October 6,
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: October 6, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022–22287 Filed 10–13–22; 8:45 am]
BILLING CODE 7020–02–P
E:\FR\FM\14OCN1.SGM
14OCN1
]]>Agencies
[Federal Register Volume 87, Number 198 (Friday, October 14, 2022)]
[Notices]
[Pages 62455-62456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22287]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1226]
Certain Artificial Eyelash Extension Systems, Products, and
Components Thereof; Notice of the Commission's Final Determination
Finding No Violation of Section 337; Termination of the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has found no violation of section 337 of
the Tariff Act of 1930, as amended, in the above-captioned
investigation. The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3228. 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 October 28, 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 Lashify, Inc. of Glendale, California (``Lashify'').
See 85 FR 68366-67 (Oct. 28, 2020). The complaint, as supplemented,
alleges a violation of section 337 based upon the importation into the
United States, sale for importation, or sale after importation into the
United States of certain artificial eyelash extension systems,
products, and components thereof by reason of infringement of certain
claims of U.S. Patent Nos. 10,660,388 (``the '388 patent'') and
10,721,984 (``the '984 patent''), and the sole claims of U.S. Design
Patent Nos. D877,416 (``the D'416 patent'') and D867,664 (``the D'664
patent''), respectively (collectively, the ``Asserted Patents''). The
complaint also alleges the existence of a domestic industry. The notice
of
[[Page 62456]]
investigation (``NOI'') names nine respondents, including: KISS Nail
Products, Inc. of Port Washington, New York (``KISS''); Ulta Beauty,
Inc. of Bolingbrook, Illinois; CVS Health Corporation of Woonsocket,
Rhode Island; Walmart, Inc. of Bentonville, Arkansas (``Walmart'');
Qingdao Hollyren Cosmetics Co., Ltd. d/b/a Hollyren of Shandong
Province, China (``Hollyren''); Qingdao Xizi International Trading Co.,
Ltd. d/b/a Xizi Lashes of Shandong Province, China (``Xizi Lashes'');
Qingdao LashBeauty Cosmetic Co., Ltd. d/b/a Worldbeauty of Qingdao,
China (``Worldbeauty''); Alicia Zeng d/b/a Lilac St. and Artemis Family
Beginnings, Inc. of San Francisco, California (collectively,
``Lilac''); and Rachael Gleason d/b/a Avant Garde Beauty Co. of Dallas,
Texas. Id. The Office of Unfair Import Investigations (``OUII'') is
also a party to the investigation. Id.
The Commission later amended the complaint and NOI to substitute
CVS Pharmacy, Inc. of Woonsocket, Rhode Island (``CVS'') in place of
named respondent CVS Health Corporation and Ulta Salon, Cosmetics &
Fragrance, Inc. of Bolingbrook, Illinois (``Ulta'') in place of named
respondent Ulta Beauty, Inc. See Order No. 10, unreviewed by Comm'n
Notice (Feb. 10, 2021); see also 86 FR 9535 (Feb. 16, 2021).
The Commission previously terminated the investigation as to claims
2-4 and 7 of the '388 patent and claims 6-8, 12, 18-19, 25-26, and 29
of the '984 patent based on Lashify's partial withdrawal of the
complaint. See Order No. 24 (Apr. 23, 2021), unreviewed by Comm'n
Notice (May 11, 2021). The Commission also previously terminated claims
2-5, 10-11, 14, 17, 21-22, and 24 of the '984 patent from the
investigation. See Order No. 38 (June 22, 2021), unreviewed by Comm'n
Notice (July 6, 2021).
The Commission previously terminated Rachael Gleason d/b/a Avant
Garde Beauty Company from the investigation based on a Consent Order.
See Order No. 28, unreviewed by Comm'n Notice (May 20, 2021).
The Commission previously determined that Lashify failed to satisfy
the technical prong of the domestic industry requirement for the '388
patent, thus terminating that patent from the investigation. See Order
No. 35, unreviewed by Comm'n Notice (July 9, 2021).
Prior to the issuance of the final initial determination, the
remaining respondents included: KISS, Ulta, CVS, Walmart, Hollyren,
Xizi Lashes, Worldbeauty, and Lilac (collectively, ``Respondents'').
On October 28, 2021, the presiding administrative law judge issued
a final initial determination (``FID''), finding that no violation of
section 337 has occurred in the importation into the United States, the
sale for importation, or the sale within the United States after
importation, of certain artificial eyelash extension systems, products,
and components thereof. FID at 141-142. The FID finds that two accused
products infringe the '984 patent and the'984 patent is not invalid,
but also finds that Lashify has failed to satisfy the technical prong
of the domestic industry requirement with respect to the '984 patent.
The FID further finds that the D'416 patent and D'664 patent are
infringed and not invalid, and that Lashify satisfied the technical
prong with respect to both design patents. The FID further finds that
Lashify has failed to satisfy the economic prong of the domestic
industry requirement with respect to all of the Asserted Patents
remaining in the investigation.
On November 29, 2021, respondents KISS, Ulta, Walmart, and CVS
filed a joint submission on the public interest pursuant to Commission
Rule 210.50(a)(4) (19 CFR 210.50 (a)(4)). Lashify and OUII did not file
a statement on the public interest. No submissions were received in
response to the Commission notice seeking public interest submissions.
86 FR 62844-45 (Nov. 12, 2021).
On January 20, 2022, the Commission determined to review the FID in
part. 87 FR 4044-46 (Jan. 26, 2022). Specifically for the '984 patent,
the Commission reviewed the FID's findings regarding the technical
prong of the domestic industry requirement and the FID's findings that
the asserted claims of the '984 patent are not invalid as obvious. Id.
at 4045. The Commission also reviewed the FID's findings regarding the
economic prong of the domestic industry requirement. Id. The Commission
asked the parties to address two questions related to the issues under
review with respect to the economic prong of the domestic industry
requirement. Id.
On February 3, 2022, Lashify, Respondents, and OUII each filed an
initial written response to the Commission's request for briefing. On
February 10, 2022, Lashify, Respondents, and OUII each filed a reply
submission.
Having reviewed the record of the investigation, including the FID
and the parties' submissions, the Commission has determined to find no
violation of section 337 as to any Asserted Patent. Specifically, with
respect to the '984 patent, the Commission has determined to: (1)
affirm, with supplemental analysis, the FID's finding that Lashify has
failed to satisfy the technical prong of the domestic industry
requirement; and (2) take no position regarding whether claims 1, 9,
23, and 27 of the '984 patent are invalid for obviousness under 35
U.S.C. 103. The Commission has further determined to affirm, with
supplemental reasoning, the FID's finding that Lashify failed to
satisfy the economic prong of the domestic industry requirement for any
of the Asserted Patents. Commissioners Karpel and Schmidtlein concur in
the determination of no violation as to the '984 patent. However, they
find a violation of section 337 as to the D'416 and D'664 patents.
Specifically, they find that Lashify has satisfied the economic prong
of the domestic industry requirement under subsection 337(a)(3)(B), but
not under subsection 337(a)(3)(A), with respect to the D'416 and D'664
patents. They take no position on subsection 337(a)(3)(C) with respect
to the D'416 and D'664 patents, or on whether Lashify satisfies the
economic prong for the '984 patent.
The investigation is terminated with a finding of no violation of
section 337. The Commission's reasoning in support of its
determinations is set forth more fully in its opinion. The reasoning in
support of the separate views of Commissioners Karpel and Schmidtlein
is set forth in the Separate Views of Commissioners Karpel and
Schmidtlein in Dissent on the Economic Prong of the Domestic Industry
Requirement as to U.S. Design Patent Nos. D877,416 and D867,664, issued
concurrently therewith.
The Commission vote for this determination took place on October 6,
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: October 6, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-22287 Filed 10-13-22; 8:45 am]
BILLING CODE 7020-02-P
