Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 15736-15738 [2023-05144]
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15736
Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Notices
address the comments received before
issuing a final RP/EA.
Office, Cadastral Survey, P.O. Box
151029, Lakewood, CO 80215.
INTERNATIONAL TRADE
COMMISSION
Public Availability of Comments
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
FOR FURTHER INFORMATION CONTACT:
[Investigation No. 337–TA–1265]
Administrative Record
The documents comprising the
Administrative Record for the Draft RP/
EA can be viewed electronically at
https://www.doi.gov/deepwaterhorizon/
adminrecord under folder 6.5.2.2.3.
Authority
The authority for this action is the Oil
Pollution Act of 1990 (33 U.S.C. 2701 et
seq.), its implementing Natural Resource
Damage Assessment regulations found
at 15 CFR part 990, and the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and its
implementing regulations found at 40
CFR parts 1500–1508.
Mary Josie Blanchard,
Department of the Interior, Director of Gulf
of Mexico Restoration.
[FR Doc. 2023–05114 Filed 3–13–23; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[LLCO956000 L14400000.BJ0000 223]
Notice of Filing of Plats of Survey,
Colorado
Bureau of Land Management,
Interior.
ACTION: Notice of official filing.
AGENCY:
The plats of survey of the
following described lands are scheduled
to be officially filed in the Bureau of
Land Management (BLM), Colorado
State Office, Lakewood, Colorado, 30
calendar days from the date of this
publication. The surveys, which were
executed at the request of the U.S.
Forest Service and the U.S. National
Park Service, are necessary for the
management of these lands.
DATES: Unless there are protests of this
action, the plats described in this notice
will be filed on April 13, 2023.
ADDRESSES: You may submit written
protests to the BLM Colorado State
ddrumheller on DSK120RN23PROD with NOTICES1
SUMMARY:
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Tasha A. Huhta, Acting Chief Cadastral
Surveyor for Colorado, telephone: (970)
271–4209; email: thuhta@blm.gov.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION: The plat
and field notes of the dependent
resurvey and subdivision of section 11
in Township 12 South, Range 72 West,
Sixth Principal Meridian, Colorado,
were accepted on December 2, 2022.
The plat, in 2 sheets, and field notes
of the dependent resurvey and survey in
Township 49 North, Range 7 West, New
Mexico Principal Meridian, Colorado,
were accepted on January 22, 2023.
The plat and field notes of the
remonumentation of certain original
corners in Township 8 South, Range 78
West, Sixth Principal Meridian,
Colorado, were accepted on February 8,
2023.
A person or party who wishes to
protest any of the above surveys must
file a written notice of protest within 30
calendar days from the date of this
publication at the address listed in the
ADDRESSES section of this notice. A
statement of reasons for the protest may
be filed with the notice of protest and
must be filed within 30 calendar days
after the protest is filed. If a protest
against the survey is received prior to
the date of official filing, the filing will
be stayed pending consideration of the
protest. A plat will not be officially filed
until the day after all protests have been
dismissed or otherwise resolved.
Before including your address, phone
number, email address, or other
personal identifying information in your
protest, please be aware that your entire
protest, including your personal
identifying information, may be made
publicly available at any time. While
you can ask us in your comment to
withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Certain Fitness Devices, Streaming
Components Thereof, and Systems
Containing Same Notice of the
Commission’s Final Determination
Finding a Violation of Section 337;
Issuance of a Limited Exclusion Order
and Cease and Desist Orders;
Termination of the Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Tasha A. Huhta,
Acting Chief Cadastral Surveyor.
Notice is hereby given that
the U.S. International Trade
Commission has found a violation of
section 337 in the above-captioned
investigation. The Commission has
determined to issue: (1) a limited
exclusion order (‘‘LEO’’) prohibiting the
unlicensed entry of fitness devices,
streaming components thereof, and
systems containing same infringing
certain claims of U.S. Patent Nos.
10,469,554 (‘‘the ’554 patent’’);
10,469,555 (‘‘the ’555 patent’’); and
10,757,156 (‘‘the ’156 patent’’) that are
manufactured by or on behalf of, or
imported by or on behalf of,
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
together with ICON and FreeMotion,
‘‘iFit’’); and Peloton Interactive, Inc. of
New York, New York (‘‘Peloton’’), or
any of their affiliated companies,
parents, subsidiaries, or other related
business entities, or their successors or
assigns; and (2) cease and desist orders
(‘‘CDOs’’) directed against iFit and
Peloton, or any of their affiliated
companies, parents, subsidiaries, or
other related business entities, or their
successors or assigns. The Commission
has also determined to grant a joint
motion filed by complainants 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’’) and respondents
lululemon athletica inc., of Vancouver,
Canada (‘‘lululemon’’); and Curiouser
Products Inc. d/b/a MIRROR of New
York, New York (together with
lululemon, ‘‘MIRROR’’) that sought to
terminate the investigation as to
MIRROR on the basis of a settlement
agreement. This investigation is
terminated.
[FR Doc. 2023–05201 Filed 3–13–23; 8:45 am]
FOR FURTHER INFORMATION CONTACT:
BILLING CODE 4310–JB–P
Ronald A. Traud, Esq., Office of the
(Authority: 43 U.S.C. chap. 3.)
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SUMMARY:
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ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Notices
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3427. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: 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. 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’’); 10,951,680 (‘‘the ’680 patent’’);
the ’554 patent; the ’555 patent; and the
’156 patent. Id. at 27106. The notice of
investigation named as respondents iFit,
MIRROR, and Peloton (collectively,
‘‘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
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,
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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 Chief
Administrative Law Judge (‘‘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 an LEO and a
CDO 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)).
On November 18, 2022, the
Commission determined to review the
Final ID in part. 87 FR 72510, 72510–
12 (Nov. 25, 2022). In particular, the
Commission reviewed 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.
Id. The Commission requested
briefing on certain issues under review
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15737
and on remedy, the public interest, and
bonding. See id.
On December 2, 2022, the parties filed
their written submissions on the issues
under review and on remedy, public
interest, and bonding, and on December
9, 2022, the parties filed their reply
submissions. The Commission did not
receive comments on the public interest
from non-parties.
On February 13, 2023, MIRROR and
DISH filed a joint, unopposed motion to
partially terminate the investigation as
to MIRROR based on a settlement
agreement between DISH and MIRROR.
The Commission has determined to
grant the motion.
On review, and consistent with the
simultaneously-issued Commission
opinion, the Commission affirms-in-part
and reverses-in-part, on other grounds,
the Final ID’s finding that DISH’s
domestic industry products practice the
asserted claims of the Asserted Patents.
The Commission also resolves in the
first instance the claim construction
dispute amongst the parties regarding
whether the asserted claims require a
display. The Commission concludes
that the asserted claims of the ’156, ’554,
and ’555 patents do not require a
display, but the asserted claims of the
’564 patent do require a display.
Accordingly, the Commission further
finds that DISH has satisfied the
technical prong of the domestic industry
requirement as to the ’156, ’554, and
’555 patents, but not as to ’564 patent.
The Commission also affirms with
modifications the Final ID’s findings
that the asserted claims of the ’554 and
’555 patents can properly claim priority
to U.S. App. No. 60/566,831 and affirms
the Final ID’s findings that those claims
are not invalid over the prior public use
of the Move Media Player. The
Commission additionally finds that the
respondents did not show that the
asserted claims of the ’555 patent are
invalid for misjoinder of inventorship.
The Commission has determined that
the appropriate form of relief is an LEO
prohibiting (1) the unlicensed entry of
infringing fitness devices, streaming
components thereof, and systems
containing same manufactured by or on
behalf of iFit, Peloton, or any of their
affiliated companies, parents,
subsidiaries, or other related business
entities, or their successors or assigns.
The Commission has also determined to
issue CDOs against iFit and Peloton.
The Commission has determined to
include an exemption to the remedial
orders for repair or, under warranty
terms, replacement of products
purchased by consumers prior to the
date of the remedial orders.
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15738
Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Notices
The Commission has further
determined that the public interest
factors enumerated in subsections (d)(l)
and (f)(1) (19 U.S.C. 1337(d)(l), (f)(1)) do
not preclude issuance of the abovereferenced remedial orders.
Additionally, the Commission has
determined to impose a bond of zero
(0%) (i.e., no bond) of entered value of
the covered products during the period
of Presidential review (19 U.S.C.
1337(j)). This investigation is
terminated.
The Commission vote for this
determination took place on March 8,
2023.
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: March 8, 2023.
Lisa Barton,
Secretary to the Commission.
conservation and recreational use.
Further, Defendants will grant public
access to a hiking and climbing-access
trail on Wild Rock property. Finally,
NPS will be given access to Wild Rock
property for five years to conduct
restoration activities near the sites of the
tree-cutting.
The publication of this notice opens
a period for public comment on the
Consent Decree. Comments should be
addressed to the Assistant Attorney
General, Environment and Natural
Resources Division, and should refer to
United States v. Wild Rock West
Virginia, et al., D.J. Ref. No. 90–11–3–
12073. All comments must be submitted
no later than thirty (30) days after the
publication date of this notice.
Comments may be submitted either by
email or by mail:
To submit
comments:
Send them to:
By email .......
pubcomment-ees.enrd@
usdoj.gov.
Assistant Attorney General,
U.S. DOJ—ENRD, P.O.
Box 7611, Washington, DC
20044–7611.
By mail .........
[FR Doc. 2023–05144 Filed 3–13–23; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
ddrumheller on DSK120RN23PROD with NOTICES1
Notice of Lodging of Proposed
Consent Decree Under the System Unit
Resource Protection Act
On March 8, 2023, the Department of
Justice lodged a proposed Consent
Decree with the United States District
Court for the Southern District of West
Virginia in the lawsuit entitled United
States v. Wild Rock West Virginia, et al.,
Civil Action No. 2:21–cv–00341.
The United States filed this lawsuit
under the System Unit Resource
Protection Act and common law
trespass and conversion. The complaint
alleges that defendants Wild Rock West
Virginia; Optima Properties WV, LLC;
and William Frischkorn, Administrator
of the Estate of Carl F. Frischkorn,
(collectively ‘‘Defendants’’) unlawfully
cut trees and removed vegetation at the
New River Gorge National Park and
Preserve (the ‘‘Park’’), near Fayetteville,
West Virginia. The complaint seeks
recovery of damages and response costs
and injunctive relief.
Under the Consent Decree,
Defendants will pay $152,000 to the
U.S. Department of the Interior,
National Park Service (‘‘NPS’’), for
response costs and damages, with
interest. In addition, Defendants will
transfer an undeveloped 40-acre parcel
of property adjacent to the Park to a
local non-profit land trust for permanent
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21:09 Mar 13, 2023
Jkt 259001
During the public comment period,
the Consent Decree may be examined
and downloaded at this Justice
Department website: https://
www.justice.gov/enrd/consent-decrees.
We will provide a paper copy of the
Consent Decree upon written request
and payment of reproduction costs.
Please mail your request and payment
to: Consent Decree Library, U.S. DOJ—
ENRD, P.O. Box 7611, Washington, DC
20044–7611.
Please enclose a check or money order
for $13.25 (25 cents per page
reproduction cost) payable to the United
States Treasury.
Jeffrey Sands,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. 2023–05130 Filed 3–13–23; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
[Docket No. OSHA–2009–0025]
UL LLC: Application for Expansion of
Recognition and Proposed
Modification to the NRTL Program’s
List of Appropriate Test Standards
Occupational Safety and Health
Administration (OSHA), Labor.
AGENCY:
PO 00000
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ACTION:
Notice.
In this notice, OSHA
announces the application of UL LLC,
for expansion of the scope of
recognition as a Nationally Recognized
Testing Laboratory (NRTL) and presents
the agency’s preliminary finding to
grant the application. Additionally,
OSHA proposes to add one test standard
to the NRTL Program’s List of
Appropriate Test Standards.
DATES: Submit comments, information,
and documents in response to this
notice, or requests for an extension of
time to make a submission, on or before
March 29, 2023.
ADDRESSES: Submit comments by any of
the following methods:
Electronically: You may submit
comments and attachments
electronically at: https://
www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the
instructions online for submitting
comments.
Facsimile: If your comments,
including attachments, are not longer
than 10 pages, you may fax them to the
OSHA Docket Office at (202) 693–1648.
Docket: To read or download
comments or other material in the
docket, go to https://
www.regulations.gov. Documents in the
docket are listed in the https://
www.regulations.gov index; however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the website.
All submissions, including copyrighted
material, are available for inspection
through the OSHA Docket Office.
Contact the OSHA Docket Office at (202)
693–2350 (TTY (877) 889–5627) for
assistance in locating docket
submissions.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this Federal Register
notice (OSHA–2009–0025). OSHA will
place comments, attachments and other
information and requests, including
personal information, in the public
docket without revision, and these
materials will be available online at
https://www.regulations.gov. Therefore,
the agency cautions commenters about
submitting statements they do not want
made available to the public, or
submitting comments that contain
personal information (either about
themselves or others) such as Social
Security numbers, birth dates, and
medical data.
Extension of comment period: Submit
requests for an extension of the
comment period on or before March 29,
2023 to the Office of Technical
Programs and Coordination Activities,
SUMMARY:
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]]>Agencies
[Federal Register Volume 88, Number 49 (Tuesday, March 14, 2023)]
[Notices]
[Pages 15736-15738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05144]
=======================================================================
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1265]
Certain Fitness Devices, Streaming Components Thereof, and
Systems Containing Same Notice of the Commission's Final Determination
Finding a Violation of Section 337; Issuance of a Limited Exclusion
Order and Cease and Desist Orders; Termination of the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has found a violation of section 337 in the above-captioned
investigation. The Commission has determined to issue: (1) a limited
exclusion order (``LEO'') prohibiting the unlicensed entry of fitness
devices, streaming components thereof, and systems containing same
infringing certain claims of U.S. Patent Nos. 10,469,554 (``the '554
patent''); 10,469,555 (``the '555 patent''); and 10,757,156 (``the '156
patent'') that are manufactured by or on behalf of, or imported by or
on behalf of, 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
together with ICON and FreeMotion, ``iFit''); and Peloton Interactive,
Inc. of New York, New York (``Peloton''), or any of their affiliated
companies, parents, subsidiaries, or other related business entities,
or their successors or assigns; and (2) cease and desist orders
(``CDOs'') directed against iFit and Peloton, or any of their
affiliated companies, parents, subsidiaries, or other related business
entities, or their successors or assigns. The Commission has also
determined to grant a joint motion filed by complainants 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'') and respondents lululemon athletica inc., of
Vancouver, Canada (``lululemon''); and Curiouser Products Inc. d/b/a
MIRROR of New York, New York (together with lululemon, ``MIRROR'') that
sought to terminate the investigation as to MIRROR on the basis of a
settlement agreement. This investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the
[[Page 15737]]
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. 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''); 10,951,680 (``the '680
patent''); the '554 patent; the '555 patent; and the '156 patent. Id.
at 27106. The notice of investigation named as respondents iFit,
MIRROR, and Peloton (collectively, ``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 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 Chief Administrative Law Judge (``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 an LEO and a CDO 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)).
On November 18, 2022, the Commission determined to review the Final
ID in part. 87 FR 72510, 72510-12 (Nov. 25, 2022). In particular, the
Commission reviewed 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.
Id. The Commission requested briefing on certain issues under
review and on remedy, the public interest, and bonding. See id.
On December 2, 2022, the parties filed their written submissions on
the issues under review and on remedy, public interest, and bonding,
and on December 9, 2022, the parties filed their reply submissions. The
Commission did not receive comments on the public interest from non-
parties.
On February 13, 2023, MIRROR and DISH filed a joint, unopposed
motion to partially terminate the investigation as to MIRROR based on a
settlement agreement between DISH and MIRROR. The Commission has
determined to grant the motion.
On review, and consistent with the simultaneously-issued Commission
opinion, the Commission affirms-in-part and reverses-in-part, on other
grounds, the Final ID's finding that DISH's domestic industry products
practice the asserted claims of the Asserted Patents. The Commission
also resolves in the first instance the claim construction dispute
amongst the parties regarding whether the asserted claims require a
display. The Commission concludes that the asserted claims of the '156,
'554, and '555 patents do not require a display, but the asserted
claims of the '564 patent do require a display. Accordingly, the
Commission further finds that DISH has satisfied the technical prong of
the domestic industry requirement as to the '156, '554, and '555
patents, but not as to '564 patent. The Commission also affirms with
modifications the Final ID's findings that the asserted claims of the
'554 and '555 patents can properly claim priority to U.S. App. No. 60/
566,831 and affirms the Final ID's findings that those claims are not
invalid over the prior public use of the Move Media Player. The
Commission additionally finds that the respondents did not show that
the asserted claims of the '555 patent are invalid for misjoinder of
inventorship.
The Commission has determined that the appropriate form of relief
is an LEO prohibiting (1) the unlicensed entry of infringing fitness
devices, streaming components thereof, and systems containing same
manufactured by or on behalf of iFit, Peloton, or any of their
affiliated companies, parents, subsidiaries, or other related business
entities, or their successors or assigns. The Commission has also
determined to issue CDOs against iFit and Peloton. The Commission has
determined to include an exemption to the remedial orders for repair
or, under warranty terms, replacement of products purchased by
consumers prior to the date of the remedial orders.
[[Page 15738]]
The Commission has further determined that the public interest
factors enumerated in subsections (d)(l) and (f)(1) (19 U.S.C.
1337(d)(l), (f)(1)) do not preclude issuance of the above-referenced
remedial orders. Additionally, the Commission has determined to impose
a bond of zero (0%) (i.e., no bond) of entered value of the covered
products during the period of Presidential review (19 U.S.C. 1337(j)).
This investigation is terminated.
The Commission vote for this determination took place on March 8,
2023.
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: March 8, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-05144 Filed 3-13-23; 8:45 am]
BILLING CODE 7020-02-P
