Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same; Notice of Commission Determination To Review the Final Initial Determination in Part; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 72510-72512 [2022-25687]
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Federal Register / Vol. 87, No. 226 / Friday, November 25, 2022 / Notices
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,2 solely for cybersecurity
purposes. All nonconfidential written
submissions will be available for public
inspection at the Office of the Secretary
and on EDIS.3
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and of §§ 201.10 and 210.8(c) of the
Commission’s Rules of Practice and
Procedure (19 CFR 201.10, 210.8(c)).
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
1-Hydroxyethylidene-1, 1Diphosphonic Acid (HEDP) From China
Determination
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 1-hydroxyethylidene-1, 1diphosphonic acid 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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BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
[Investigation Nos. 701–TA–558 and 731–
TA–1316 (Review)]
The Commission instituted these
reviews on April 1, 2022 (87 FR 19125)
and determined on July 5, 2022 that it
would conduct expedited reviews (87
FR 64248, October 24, 2022).
2 All contract personnel will sign appropriate
nondisclosure agreements.
3 Electronic Document Information System
(EDIS): https://edis.usitc.gov.
1 The record is defined in § 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
Jkt 259001
[FR Doc. 2022–25686 Filed 11–23–22; 8:45 am]
Certain Fitness Devices, Streaming
Components Thereof, and Systems
Containing Same; Notice of
Commission Determination To Review
the Final Initial Determination in Part;
Request for Written Submissions on
the Issues Under Review and on
Remedy, the Public Interest, and
Bonding
[FR Doc. 2022–25631 Filed 11–23–22; 8:45 am]
18:43 Nov 23, 2022
By order of the Commission.
Issued: November 18, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[Investigation No. 337–TA–1265]
By order of the Commission.
Issued: November 18, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
VerDate Sep<11>2014
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 November 18, 2022.
The views of the Commission are
contained in USITC Publication 5386
(November 2022), entitled 1Hydroxyethylidene-1, 1-Diphosphonic
Acid (HEDP) from China: Investigation
Nos. 701–TA–558 and 731–TA–1316
(Review).
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
chief administrative law judge (‘‘CALJ’’)
on September 9, 2022. 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.
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.
SUMMARY:
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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: The
Commission instituted this investigation
under section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, on
May 19, 2021, based on a complaint
filed by DISH DBS Corporation of
Englewood, Colorado; DISH
Technologies, L.L.C., of Englewood,
Colorado; and Sling TV L.L.C., of
Englewood, Colorado (collectively,
‘‘DISH’’). 86 FR 27106–07 (May 19,
2021). The complaint alleged a violation
of section 337 based upon the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain fitness devices, streaming
components thereof, and systems
containing same by reason of
infringement of certain claims of U.S.
Patent Nos. 9,407,564 (‘‘the ’564
patent’’); 10,469,554 (‘‘the ’554 patent’’);
10,469,555 (‘‘the ’555 patent’’);
10,757,156 (‘‘the ’156 patent’’); and
10,951,680 (‘‘the ’680 patent’’). Id. at
27106. The notice of investigation
named as respondents ICON Health &
Fitness, Inc. of Logan, Utah (‘‘ICON’’ or
‘‘iFIT Inc.’’); FreeMotion Fitness, Inc. of
Logan, Utah (‘‘FreeMotion’’);
NordicTrack Inc. of Logan, Utah
(‘‘NordicTrack,’’ and with ICON and
FreeMotion, ‘‘iFit’’); lululemon athletica
inc., of Vancouver, Canada
(‘‘lululemon’’); Curiouser Products Inc.
d/b/a MIRROR of New York, New York
(together with lululemon, ‘‘MIRROR’’);
and Peloton Interactive, Inc. of New
York, New York (‘‘Peloton,’’ and with
the other respondents, ‘‘Respondents’’).
Id.; Order No. 14 (Nov. 4, 2021),
unreviewed by Comm’n Notice (Dec. 6,
2021), 86 FR 70532 (Dec. 10, 2021). The
Commission’s Office of Unfair Import
Investigations (‘‘OUII’’) also was named
as a party in this investigation. 86 FR at
27106.
Prior to the issuance of the Final ID,
the complaint and notice of
investigation were amended to change
the name of ICON to iFIT Inc. Order No.
14 (Nov. 4, 2021), unreviewed by
Comm’n Notice (Dec. 6, 2021), 86 FR at
70532. The investigation was also
terminated in part as to claims 6, 11,
and 12 of the ’156 patent, claim 22 of
the ’554 patent, and claim 17 of the ’555
patent. Order No. 15 (Nov. 19, 2021),
unreviewed by Comm’n Notice (Dec. 20,
2021). Moreover, claims 9 and 12 of the
’156 patent, claim 19 of the ’554 patent,
claims 12 and 13 of the ’555 patent, and
claim 6 of the ’564 patent are no longer
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asserted against iFit and Peloton. Id.
The investigation was further
terminated as to claims 6–8, 10, and 13–
15 of the ’564 patent, claims 3 and 6–
12 of the ’156 patent, claims 18, 19, 21–
25, and 30 of the ’554 patent, claims 12,
13, 16, 17, 26, and 27 of the ’555 patent,
and all asserted claims of the ’680
patent. Order No. 21 (Mar. 3, 2022),
unreviewed by Comm’n Notice (Mar. 23,
2022).
At the time of the Final ID, DISH
asserted the following claims against
MIRROR and iFit: claims 1, 3, and 5 of
the ’564 patent; claims 16, 17 and 20 of
the ’554 patent; claims 10, 11, 14, and
15 of the ’555 patent; and claims 1, 4,
and 5 of the ’156 patent. DISH also
asserted the following claims against
Peloton: claims 1 and 3–5 of the ’564
patent; claims 16, 17, and 20 of the ’554
patent; claims 10, 11, 14, and 15 of the
’555 patent; and claims 1, 2, 4, and 5 of
the ’156 patent.
On September 9, 2022, the CALJ
issued the Final ID, which found that
Respondents violated section 337.
The CALJ’s recommendation on
remedy and bonding (the ‘‘RD’’)
recommended that, if the Commission
finds a violation of section 337, the
Commission should issue a limited
exclusion order and a cease and desist
order directed to each of the
Respondents. The RD further
recommended that the Commission
impose a zero percent (0%) bond during
the period of Presidential Review. The
Commission did not direct the CALJ to
make findings and a recommendation
on the statutory public interest factors.
On September 23, 2022, Respondents
and OUII filed petitions for review of
the Final ID. On October 3, 2022, DISH
and OUII filed responses to the
petitions.
On October 11, 2022, DISH and
Respondents filed their 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) whether DISH satisfied the
technical prong of the domestic industry
requirement as to all Asserted Patents;
(2) whether claims 16, 17, and 20 of
the ’554 patent and claims 14 and 15 of
the ’555 patent are entitled to claim
priority to U.S. App. No. 60/566,831;
(3) whether claims 16, 17, and 20 of
the ’554 patent and claims 14 and 15 of
the ’555 patent are invalid as
anticipated over the prior public use of
the Move Media Player;
VerDate Sep<11>2014
18:43 Nov 23, 2022
Jkt 259001
(4) whether the asserted claims of the
’555 patent are invalid for misjoinder of
Mr. Brueck; and
(5) whether the preamble of claim 10
of the ’555 patent is limiting.
The parties are requested to brief their
positions with reference to the
applicable law and the evidentiary
record regarding the questions provided
below:
(1) Regarding whether DISH satisfied
the technical prong of the domestic
industry requirement as to all Asserted
Patents, if the Commission determines
that DISH’s theory that the technical
prong of the domestic industry
requirement can be satisfied by the
combination of its contended domestic
industry products and third-party video
displays (whether that combination is
assembled by DISH itself or by its
customers) was barred by Order No. 22
(Mar. 8, 2022):
(A) Has DISH failed to prove a
violation of section 337?
(B) What is the scope and extent of
factfinding that would be required for
the Commission to determine whether
DISH satisfied the technical prong of the
domestic industry requirement?
(C) Should the Commission remand to
the CALJ for further claim construction
regarding whether the ‘‘presenting’’ and
‘‘providing’’/‘‘provide’’ claim
limitations require a display (see Final
ID at 109 n.18)?
(2) If the Commission determines that
the final ID did not make a finding as
to whether Mr. Brueck is misjoined on
the ’555 patent:
(A) What is the scope and extent of
factfinding that would be required for
the Commission to determine whether
Mr. Brueck is misjoined on the ’555
patent?
(B) Should the Commission remand to
the CALJ for resolving this issue? And,
if so, what should the scope of remand
include?
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 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
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72511
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. In
particular, the Commission requests that
the parties respond to the statements on
the public interest submitted by the
parties.
In addition, the Commission requests
specific briefing to address the
following questions relevant to the
public interest considerations in this
investigation, including evidence in
support:
(1) Would an exclusion order or cease
and desist order affect existing owners
of Accused Products, and if so, how?
(2) To what extent and as to which
statutory public interest factor(s) should
the Commission consider that DISH
does not compete with Respondents in
the sale of internet-streaming enabled
fitness devices?
(3) Please discuss what alternatives, if
any, to the Accused Products would be
available to U.S. consumers, including
from third parties, if the Commission
were to issue remedial orders. Please
discuss price point, functionality, and/
or any other information that the parties
believe would be useful to the
Commission in evaluating the
availability of alternative fitness
devices.
(4) Please explain whether an
exclusion order or cease and desist
order would impact domestic
production of like or directly
competitive products.
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
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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
September 9, 2022.
Initial written submissions, limited to
60 pages, must be filed no later than the
close of business on December 2, 2022.
Complainants are requested to identify
the form of the remedy sought and
Complainants and OUII are requested 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
20 pages, must be filed no later than the
close of business on December 9, 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–1265’’) 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
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18:43 Nov 23, 2022
Jkt 259001
210.5(e)(2) (19 CFR 201.6(b) &
210.5(e)(2)). Documents for which
confidential treatment by the
Commission is properly sought will be
treated accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
any confidential filing. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this investigation may be
disclosed to and used: (i) by the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
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 November
18, 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).
Issued: November 18, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022–25687 Filed 11–23–22; 8:45 am]
BILLING CODE 7020–02–P
NATIONAL COUNCIL ON DISABILITY
Sunshine Act Meetings
The Members of the
National Council on Disability (NCD)
will hold a quarterly business meeting
on Thursday, December 8, 2022, 12:00
p.m.–4:00 p.m., Eastern Standard Time
(EST).
PLACE: This meeting will occur via
Zoom videoconference. Registration is
not required. Interested parties are
encouraged to join the meeting in an
attendee status by Zoom Desktop Client,
Mobile App, or Telephone to dial-in.
Updated information is available on
NCD’s event page at https://ncd.gov/
events/2022/upcoming-council-meeting.
To join the Zoom webinar, please use
the following URL: https://
TIME AND DATE:
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us06web.zoom.us/j/88045536032?pwd=
VGRBbUd1a1hOW
mhqaGxZWjhmRG00QT09 or enter
Webinar ID: 880 4553 6032 in the Zoom
app. The Passcode is: 458383.
To join the Council Meeting by
telephone, dial one of the preferred
numbers listed. The following numbers
are (for higher quality, dial a number
based on your current location): (669)
900–6833; (408) 638–0968; (312) 626–
6799; (346) 248–7799; (253) 215–8782;
(646) 876–9923; or (301) 715–8592. You
will be prompted to enter the meeting
ID 880 4553 6032 and passcode 458383.
International numbers are also available:
https://us06web.zoom.us/u/kejfj69EDW.
In the event of audio disruption or
failure, attendees can follow the meeting
by accessing the Communication Access
Realtime Translation (CART) link
provided. CART is text-only translation
that occurs real time during the meeting
and is not an exact transcript.
MATTERS TO BE CONSIDERED: Following
welcome remarks and introductions, the
Council will welcome new Council
Members; provide recognition to
outgoing Council Members; the
Chairman and Executive Committee and
Executive Director will provide reports;
followed by assignment of Council
Member roles and assignments; a Policy
update; a discussion on 2024 Progress
Report; and any old or new business,
before adjourning.
Agenda: The times provided below
are approximations for when each
agenda item is anticipated to be
discussed (all times Eastern Standard
Time):
Thursday, December 8, 2022
12:00–12:10 p.m.—Welcome and Call to
Order
12:10–1:00 p.m.—Meet the New NCD
Council Members
1:00–1:10 p.m.—Outgoing Member
Recognition
1:10–1:20 p.m.—Chairman’s Report
1:20–1:35 p.m.—Executive Committee
Report
1:35–1:45 p.m.—Break
1:45–2:00 p.m.—Council Member Roles
and Assignments
2:00–2:40 p.m.—Policy Update
2:40–3:25 p.m.—Progress Report 2024
process discussion
3:25–3:30 p.m.—Old Business/New
Business
3:30–4:00 p.m.—Public Comment
4:00 p.m.—Adjourn
Public Comment: Your participation
during the public comment period
provides an opportunity for us to hear
from you—individuals, businesses,
providers, educators, parents and
advocates. Your comments are
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]]>Agencies
[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Notices]
[Pages 72510-72512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25687]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1265]
Certain Fitness Devices, Streaming Components Thereof, and
Systems Containing Same; Notice of Commission Determination To Review
the Final Initial Determination in Part; Request for Written
Submissions on the Issues Under Review and on Remedy, the Public
Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the final initial
determination (``Final ID'') issued by the presiding chief
administrative law judge (``CALJ'') on September 9, 2022. 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.
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: The Commission instituted this investigation
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C.
1337, on May 19, 2021, based on a complaint filed by DISH DBS
Corporation of Englewood, Colorado; DISH Technologies, L.L.C., of
Englewood, Colorado; and Sling TV L.L.C., of Englewood, Colorado
(collectively, ``DISH''). 86 FR 27106-07 (May 19, 2021). The complaint
alleged a violation of section 337 based upon the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain fitness devices, streaming
components thereof, and systems containing same by reason of
infringement of certain claims of U.S. Patent Nos. 9,407,564 (``the
'564 patent''); 10,469,554 (``the '554 patent''); 10,469,555 (``the
'555 patent''); 10,757,156 (``the '156 patent''); and 10,951,680 (``the
'680 patent''). Id. at 27106. The notice of investigation named as
respondents ICON Health & Fitness, Inc. of Logan, Utah (``ICON'' or
``iFIT Inc.''); FreeMotion Fitness, Inc. of Logan, Utah
(``FreeMotion''); NordicTrack Inc. of Logan, Utah (``NordicTrack,'' and
with ICON and FreeMotion, ``iFit''); lululemon athletica inc., of
Vancouver, Canada (``lululemon''); Curiouser Products Inc. d/b/a MIRROR
of New York, New York (together with lululemon, ``MIRROR''); and
Peloton Interactive, Inc. of New York, New York (``Peloton,'' and with
the other respondents, ``Respondents''). Id.; Order No. 14 (Nov. 4,
2021), unreviewed by Comm'n Notice (Dec. 6, 2021), 86 FR 70532 (Dec.
10, 2021). The Commission's Office of Unfair Import Investigations
(``OUII'') also was named as a party in this investigation. 86 FR at
27106.
Prior to the issuance of the Final ID, the complaint and notice of
investigation were amended to change the name of ICON to iFIT Inc.
Order No. 14 (Nov. 4, 2021), unreviewed by Comm'n Notice (Dec. 6,
2021), 86 FR at 70532. The investigation was also terminated in part as
to claims 6, 11, and 12 of the '156 patent, claim 22 of the '554
patent, and claim 17 of the '555 patent. Order No. 15 (Nov. 19, 2021),
unreviewed by Comm'n Notice (Dec. 20, 2021). Moreover, claims 9 and 12
of the '156 patent, claim 19 of the '554 patent, claims 12 and 13 of
the '555 patent, and claim 6 of the '564 patent are no longer
[[Page 72511]]
asserted against iFit and Peloton. Id. The investigation was further
terminated as to claims 6-8, 10, and 13-15 of the '564 patent, claims 3
and 6-12 of the '156 patent, claims 18, 19, 21-25, and 30 of the '554
patent, claims 12, 13, 16, 17, 26, and 27 of the '555 patent, and all
asserted claims of the '680 patent. Order No. 21 (Mar. 3, 2022),
unreviewed by Comm'n Notice (Mar. 23, 2022).
At the time of the Final ID, DISH asserted the following claims
against MIRROR and iFit: claims 1, 3, and 5 of the '564 patent; claims
16, 17 and 20 of the '554 patent; claims 10, 11, 14, and 15 of the '555
patent; and claims 1, 4, and 5 of the '156 patent. DISH also asserted
the following claims against Peloton: claims 1 and 3-5 of the '564
patent; claims 16, 17, and 20 of the '554 patent; claims 10, 11, 14,
and 15 of the '555 patent; and claims 1, 2, 4, and 5 of the '156
patent.
On September 9, 2022, the CALJ issued the Final ID, which found
that Respondents violated section 337.
The CALJ's recommendation on remedy and bonding (the ``RD'')
recommended that, if the Commission finds a violation of section 337,
the Commission should issue a limited exclusion order and a cease and
desist order directed to each of the Respondents. The RD further
recommended that the Commission impose a zero percent (0%) bond during
the period of Presidential Review. The Commission did not direct the
CALJ to make findings and a recommendation on the statutory public
interest factors.
On September 23, 2022, Respondents and OUII filed petitions for
review of the Final ID. On October 3, 2022, DISH and OUII filed
responses to the petitions.
On October 11, 2022, DISH and Respondents filed their 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) whether DISH satisfied the technical prong of the domestic
industry requirement as to all Asserted Patents;
(2) whether claims 16, 17, and 20 of the '554 patent and claims 14
and 15 of the '555 patent are entitled to claim priority to U.S. App.
No. 60/566,831;
(3) whether claims 16, 17, and 20 of the '554 patent and claims 14
and 15 of the '555 patent are invalid as anticipated over the prior
public use of the Move Media Player;
(4) whether the asserted claims of the '555 patent are invalid for
misjoinder of Mr. Brueck; and
(5) whether the preamble of claim 10 of the '555 patent is
limiting.
The parties are requested to brief their positions with reference
to the applicable law and the evidentiary record regarding the
questions provided below:
(1) Regarding whether DISH satisfied the technical prong of the
domestic industry requirement as to all Asserted Patents, if the
Commission determines that DISH's theory that the technical prong of
the domestic industry requirement can be satisfied by the combination
of its contended domestic industry products and third-party video
displays (whether that combination is assembled by DISH itself or by
its customers) was barred by Order No. 22 (Mar. 8, 2022):
(A) Has DISH failed to prove a violation of section 337?
(B) What is the scope and extent of factfinding that would be
required for the Commission to determine whether DISH satisfied the
technical prong of the domestic industry requirement?
(C) Should the Commission remand to the CALJ for further claim
construction regarding whether the ``presenting'' and ``providing''/
``provide'' claim limitations require a display (see Final ID at 109
n.18)?
(2) If the Commission determines that the final ID did not make a
finding as to whether Mr. Brueck is misjoined on the '555 patent:
(A) What is the scope and extent of factfinding that would be
required for the Commission to determine whether Mr. Brueck is
misjoined on the '555 patent?
(B) Should the Commission remand to the CALJ for resolving this
issue? And, if so, what should the scope of remand include?
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 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. In particular, the Commission requests that the
parties respond to the statements on the public interest submitted by
the parties.
In addition, the Commission requests specific briefing to address
the following questions relevant to the public interest considerations
in this investigation, including evidence in support:
(1) Would an exclusion order or cease and desist order affect
existing owners of Accused Products, and if so, how?
(2) To what extent and as to which statutory public interest
factor(s) should the Commission consider that DISH does not compete
with Respondents in the sale of internet-streaming enabled fitness
devices?
(3) Please discuss what alternatives, if any, to the Accused
Products would be available to U.S. consumers, including from third
parties, if the Commission were to issue remedial orders. Please
discuss price point, functionality, and/or any other information that
the parties believe would be useful to the Commission in evaluating the
availability of alternative fitness devices.
(4) Please explain whether an exclusion order or cease and desist
order would impact domestic production of like or directly competitive
products.
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
[[Page 72512]]
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
September 9, 2022.
Initial written submissions, limited to 60 pages, must be filed no
later than the close of business on December 2, 2022. Complainants are
requested to identify the form of the remedy sought and Complainants
and OUII are requested 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 20 pages, must be filed
no later than the close of business on December 9, 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-1265'') 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 November
18, 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).
Issued: November 18, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-25687 Filed 11-23-22; 8:45 am]
BILLING CODE 7020-02-P
