Certain Replacement Automotive Lamps; Notice of Commission Determination To Review a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submission on Remedy, the Public Interest, and Bonding; Extension of the Target Date, 31520-31522 [2023-10477]
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(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 ‘‘digital LiDAR (‘Light
Detection and Ranging’) devices,
components thereof, and systems
containing the same, that utilize LiDAR
technology which remotely senses the
external environment’’;
(3) 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:
Ouster, Inc., 350 Treat Avenue, San
Francisco, CA 94110.
(b) The respondents are the following
entities alleged to be in violation of
section 337, and the parties upon which
the complaint is to be served:
Hesai Group, 9th Floor, Building L2–B,
1588 Zhuguang Road, Qingpu District,
Shanghai 201702, China
Hesai Technology Co., Ltd., 9th Floor,
Building L2–B, 1588 Zhuguang Road,
Qingpu District, Shanghai 201702,
China
Hesai Inc., 3500 W Bayshore Rd., Palo
Alto, CA 94303
(c) The Office of Unfair Import
Investigations, U.S. International Trade
Commission, 500 E Street SW, Suite
401, Washington, DC 20436; and
(4) 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
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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: May 11, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023–10478 Filed 5–16–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1291]
Certain Replacement Automotive
Lamps; Notice of Commission
Determination To Review a Final Initial
Determination Finding a Violation of
Section 337; Schedule for Filing
Written Submission on Remedy, the
Public Interest, and Bonding;
Extension of the Target Date
International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part a final initial determination
(‘‘Final ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’)
finding a violation of section 337 of the
Tariff Act of 1930. The Commission
requests briefing from the parties on the
issues under review and from the
parties, interested government agencies,
and interested persons on remedy, the
public interest, and bonding based on
the schedule set forth below. The
Commission has also determined to
extend the target date for the completion
of the above-captioned investigation to
September 26, 2023.
FOR FURTHER INFORMATION CONTACT:
Robert Needham, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–5468. 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 (https://www.usitc.gov).
Hearing-impaired persons are advised
SUMMARY:
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that information on this matter can be
obtained by contacting the
Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: On
January 24, 2022, 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 on
behalf of complainants Kia Corporation
of Seoul, Korea and Kia America, Inc. of
Irvine, California (collectively, ‘‘Kia’’).
87 FR 3584–85 (Jan. 24, 2022). The
complaint, as supplemented and
amended, alleges a violation of section
337 in the importation into the United
States, the sale for importation, and the
sale after importation within the United
States after importation of certain
replacement automotive lamps by
reason of infringement of U.S. Design
Patent Nos. D592,773; D635,701;
D636,506; D650,931; D695,933;
D705,963; D709,218; D714,975;
D714,976; D720,871; D749,757;
D749,762; D749,764; D774,222;
D774,223; D776,311; D781,471;
D785,833; D785,836; and D792,989. Id.
at 3584. The notice of investigation
names as respondents TYC Brother
Industrial Co., Ltd. of Tainan, Taiwan;
Genera Corporation (dba TYC Genera) of
Brea, California; LKQ Corporation of
Chicago, Illinois; and Keystone
Automotive Industries, Inc. of Exeter,
Pennsylvania (together, ‘‘Respondents’’).
The Office of Unfair Import
Investigations is not participating in this
investigation.
On February 7, 2022, the Chief ALJ
(‘‘CALJ’’) ordered an evidentiary hearing
for both Inv. Nos. 337–TA–1291 and
337–TA–1292 on the economic prong
pursuant to the Commission’s pilot
program for interim initial
determinations (‘‘IID’’). Order No. 6
(Feb. 7, 2022). The combined
evidentiary hearing was held on April
20, 2022. On July 1, 2022, the CALJ
issued an IID finding that Kia has
satisfied the economic prong of the
domestic industry requirement with
respect to all of the asserted design
patents. On August 24, 2022, the
Commission determined to review the
IID. The investigation was reassigned to
the presiding ALJ on July 6, 2022.
On January 24, 2023, the ALJ issued
the Final ID finding a violation of
section 337 by Respondents with
respect to ’773, ’701, ’506, ’931, ’933,
’218, ’975, ’976, ’871, ’762, ’764, ’222,
’223, ’311, ’833, ’836, and ’989 patents.
Final ID at 1. The Final ID finds no
violation with respect to the ’963, ’757,
and ’471 patents based on
noninfringement and failure to satisfy
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the technical prong of the domestic
industry requirement. Id. at 1, 284–86.
The Final ID also finds that no asserted
patent is invalid as anticipated or
obvious. Id. Concerning the economic
prong of the domestic industry
requirement, the Final ID reduced Kia’s
alleged investments due to Kia’s failure
to establish that certain of its alleged
domestic industry products are
representative of other alleged domestic
industry products. Id. at 33–37.
On February 6, 2023, Respondents
filed a petition for review challenging
the Final ID’s findings on the economic
prong of the domestic industry
requirement, infringement, and validity.
Also on February 6, 2023, Kia filed a
petition for review challenging the Final
ID’s findings of noninfringement and
contingently petitioning regarding the
Final ID’s findings concerning nonsatisfaction of the technical prong of the
domestic industry requirement
regarding the ’963, ’757, and ’471
patents. On February 14, 2023, Kia and
Respondents filed responses to each
other’s petitions.
Having examined the record of this
investigation, including the ALJ’s Final
ID, the petitions for review, and the
responses thereto, the Commission has
determined to review the Final ID in its
entirety. The Commission has also
determined to extend the target date for
the completion of the investigation until
September 26, 2023.
In connection with its review, the
Commission requests briefing on the
following issues. The parties are
requested to brief their positions with
reference to the applicable law, the
existing evidentiary record, and the
parties’ submissions during the
investigation.
1. Please identify, with citations to the
record prior to the Final ID, where Kia
satisfied its burden of proof to establish
infringement of each asserted patent by
applying the ordinary observer test. As
a part of your discussion, please
discuss:
a. the impact, if any, of the Final ID’s
determination not to rely upon the
testimony of Kia’s expert in the Final
ID’s infringement analysis because such
testimony is conclusory. Final ID at 33.
b. what evidence and argument
beyond side-by-side images of the
patented designs and accused products,
if anything, is needed to satisfy the
burden of proof, and whether Kia
provided that proof, in this
investigation. For example, was Kia
required to provide a written
explanation in its prehearing and/or
post hearing briefs discussing how the
accused products and each asserted
patent are ‘‘substantially the same’’ from
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the perspective of the ordinary
observer?
2. Please identify, with citation to the
record prior to the Final ID, where Kia
satisfied its burden of proof to establish
the technical prong of the domestic
industry requirement for each asserted
patent. As part of your discussion,
please discuss what evidence and
argument beyond side-by-side images of
the patented designs and asserted
domestic industry products, if anything,
is needed to satisfy the burden of proof,
and whether Kia provided that proof, in
this investigation. For example, was Kia
required to provide a written
explanation in its prehearing and/or
post hearing briefs discussing how the
asserted domestic industry products and
each asserted patent are ‘‘substantially
the same’’ from the perspective of the
ordinary observer?
3. Please discuss whether Kia satisfied
its burden of proof to establish that it
has satisfied the economic prong of the
domestic industry requirement through
significant investments in plant and
equipment based on the revised patentby-patent investments to account for the
non-representative products. Please also
identify, with citations to the record
prior to the Final ID, where Kia satisfied
its burden of proof as to the significance
of the revised investments for each
patent.
4. Please address whether the Final
ID, in finding infringement or
satisfaction of the technical prong as to
the asserted design patents despite
complainants’ failure to provide a
written explanation regarding similarity
between the accused product and
asserted design from the standpoint of
the ordinary observer, is consistent with
relevant legal authority. Please
specifically address whether the Final
ID, by providing such a written
explanation in the first instance,
presents issues under the
Administrative Procedure Act.
In connection with the final
disposition of this investigation, the
Commission may (1) issue an order that
could result in the exclusion of the
subject articles from entry into the
United States, and/or (2) issue a cease
and desist order that could result in the
respondent being required to cease and
desist from engaging in unfair acts in
the importation and sale of such
articles. Accordingly, the Commission is
interested in receiving written
submissions that address the form of
remedy, if any, that should be ordered.
If a party seeks exclusion of an article
from entry into the United States for
purposes other than entry for
consumption, the party should so
indicate and provide information
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31521
establishing that activities involving
other types of entry either are adversely
affecting it or likely to do so. For
background, see Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. at 7–10
(December 1994).
If the Commission contemplates some
form of remedy, it must consider the
effects of that remedy upon the public
interest. The factors the Commission
will consider include the effect that an
exclusion order and/or a cease and
desist order would have on (1) the
public health and welfare, (2)
competitive conditions in the U.S.
economy, (3) U.S. production of articles
that are like or directly competitive with
those that are subject to investigation,
and (4) U.S. consumers. The
Commission is therefore interested in
receiving written submissions that
address the aforementioned public
interest factors in the context of this
investigation.
If the Commission orders some form
of remedy, the U.S. Trade
Representative, as delegated by the
President, has 60 days to approve,
disapprove, or take no position on the
Commission’s action. 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
Commission requests that the parties to
the investigation file written
submissions on the issues identified in
this notice. The Commission encourages
parties to the investigation, interested
government agencies, and any other
interested parties to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
submissions should address the
recommended determination by the ALJ
on remedy and bonding, which issued
on January 24, 2023. The Commission
further requests that Kia submit
proposed remedial orders, state the date
when the asserted patents expire,
provide the HTSUS subheadings under
which the subject articles are imported,
and supply a list of known importers of
the subject article. The written
submissions, exclusive of any exhibits,
must not exceed 50 pages, and must be
filed no later than close of business on
May 25, 2023. Reply submissions must
not exceed 20 pages, and must be filed
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no later than the close of business on
June 1, 2023. 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
(March 19, 2020). Submissions should
refer to the investigation number (Inv.
No. 337–TA–1291) in a prominent place
on the cover page and/or the first page.
(See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.pdf). Persons with questions
regarding filing should contact the
Secretary, (202) 205–2000.
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment by marking each document
with a header indicating that the
document contains confidential
information. This marking will be
deemed to satisfy the request procedure
set forth in Rules 201.6(b) and
210.5(e)(2) (19 CFR 201.6(b) &
210.5(e)(2)). Documents for which
confidential treatment by the
Commission is properly sought will be
treated accordingly. 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 May 11,
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).
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18:34 May 16, 2023
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By order of the Commission.
Issued: May 11, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023–10477 Filed 5–16–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 731–TA–1588–1590
(Final)]
Certain Preserved Mushrooms From
the Netherlands, Poland, and Spain
Determinations
On the basis of the record 1 developed
in the subject investigations, the United
States International Trade Commission
(‘‘Commission’’) determines, pursuant
to the Tariff Act of 1930 (‘‘the Act’’),
that an industry in the United States is
materially injured by reason of imports
of certain preserved mushrooms from
the Netherlands, Poland, and Spain,
provided for in subheading 2003.10.01
of the Harmonized Tariff Schedule of
the United States, that have been found
by the U.S. Department of Commerce
(‘‘Commerce’’) to be sold in the United
States at less than fair value (‘‘LTFV’’).2
Background
The Commission instituted these
investigations effective March 31, 2022,
following receipt of petitions filed with
the Commission and Commerce by
Giorgio Foods, Inc., Blandon,
Pennsylvania. The Commission
established a general schedule for the
conduct of the final phase of its
investigations on certain preserved
mushrooms, following a preliminary
determination by Commerce that
imports of certain preserved mushrooms
from France were being sold at LTFV
within the meaning of section 733(b) of
the Act (19 U.S.C. 1673b(b)). Notice of
the scheduling of the final phase of the
Commission’s investigations and of a
public hearing to be held in connection
therewith was given by posting copies
of the notice in the Office of the
Secretary, U.S. International Trade
Commission, Washington, DC, and by
publishing the notice in the Federal
Register of September 21, 2022 (87 FR
57717). The Commission conducted its
hearing on November 17, 2022. All
persons who requested the opportunity
were permitted to participate.
1 The record is defined in § 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
2 88 FR 18115, 88 FR 18118, and 88 FR 18120
(March 27, 2023).
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The investigations schedules became
staggered when Commerce did not
postpone the final determination for its
antidumping duty investigation of
certain preserved mushrooms from
France, while it did postpone the final
determinations for its antidumping duty
investigations of certain preserved
mushrooms from the Netherlands,
Poland, and Spain. On January 12, 2023,
the Commission issued a final
affirmative determination in its
antidumping duty investigation of
certain preserved mushrooms from
France (88 FR 2971, January 18, 2023).
Following notification of a final
determination by Commerce that
imports of certain preserved mushrooms
from the Netherlands, Poland, and
Spain were being sold at LTFV within
the meaning of section 735(a) of the Act
(19 U.S.C. 1673d(a)), notice of the
supplemental scheduling of the final
phase of the Commission’s antidumping
duty investigations was given by posting
copies of the notice in the Office of the
Secretary, U.S. International Trade
Commission, Washington, DC, and by
publishing the notice in the Federal
Register of April 5, 2023 (88 FR 20187).
The Commission made these
determinations pursuant to § 735(b) of
the Act (19 U.S.C. 1673d(b)). It
completed and filed its determinations
in these investigations on May 11, 2023.
The views of the Commission are
contained in USITC Publication 5419
(May 2023), entitled Certain Preserved
Mushrooms from the Netherlands,
Poland, and Spain: Investigation Nos.
731–TA–1588–1590 (Final).
By order of the Commission.
Issued: May 11, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023–10439 Filed 5–16–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1292]
Certain Replacement Automotive
Lamps II; Notice of Commission
Determination To Review a Final Initial
Determination Finding a Violation of
Section 337; Schedule for Filing
Written Submissions on Remedy, the
Public Interest, and Bonding;
Extension of the Target Date
International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
SUMMARY:
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]]>Agencies
[Federal Register Volume 88, Number 95 (Wednesday, May 17, 2023)]
[Notices]
[Pages 31520-31522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10477]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1291]
Certain Replacement Automotive Lamps; Notice of Commission
Determination To Review a Final Initial Determination Finding a
Violation of Section 337; Schedule for Filing Written Submission on
Remedy, the Public Interest, and Bonding; Extension of the Target Date
AGENCY: International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part a final initial
determination (``Final ID'') issued by the presiding administrative law
judge (``ALJ'') finding a violation of section 337 of the Tariff Act of
1930. The Commission requests briefing from the parties on the issues
under review and from the parties, interested government agencies, and
interested persons on remedy, the public interest, and bonding based on
the schedule set forth below. The Commission has also determined to
extend the target date for the completion of the above-captioned
investigation to September 26, 2023.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. 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 (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 January 24, 2022, 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 on behalf of complainants Kia Corporation of Seoul,
Korea and Kia America, Inc. of Irvine, California (collectively,
``Kia''). 87 FR 3584-85 (Jan. 24, 2022). The complaint, as supplemented
and amended, alleges a violation of section 337 in the importation into
the United States, the sale for importation, and the sale after
importation within the United States after importation of certain
replacement automotive lamps by reason of infringement of U.S. Design
Patent Nos. D592,773; D635,701; D636,506; D650,931; D695,933; D705,963;
D709,218; D714,975; D714,976; D720,871; D749,757; D749,762; D749,764;
D774,222; D774,223; D776,311; D781,471; D785,833; D785,836; and
D792,989. Id. at 3584. The notice of investigation names as respondents
TYC Brother Industrial Co., Ltd. of Tainan, Taiwan; Genera Corporation
(dba TYC Genera) of Brea, California; LKQ Corporation of Chicago,
Illinois; and Keystone Automotive Industries, Inc. of Exeter,
Pennsylvania (together, ``Respondents''). The Office of Unfair Import
Investigations is not participating in this investigation.
On February 7, 2022, the Chief ALJ (``CALJ'') ordered an
evidentiary hearing for both Inv. Nos. 337-TA-1291 and 337-TA-1292 on
the economic prong pursuant to the Commission's pilot program for
interim initial determinations (``IID''). Order No. 6 (Feb. 7, 2022).
The combined evidentiary hearing was held on April 20, 2022. On July 1,
2022, the CALJ issued an IID finding that Kia has satisfied the
economic prong of the domestic industry requirement with respect to all
of the asserted design patents. On August 24, 2022, the Commission
determined to review the IID. The investigation was reassigned to the
presiding ALJ on July 6, 2022.
On January 24, 2023, the ALJ issued the Final ID finding a
violation of section 337 by Respondents with respect to '773, '701,
'506, '931, '933, '218, '975, '976, '871, '762, '764, '222, '223, '311,
'833, '836, and '989 patents. Final ID at 1. The Final ID finds no
violation with respect to the '963, '757, and '471 patents based on
noninfringement and failure to satisfy
[[Page 31521]]
the technical prong of the domestic industry requirement. Id. at 1,
284-86. The Final ID also finds that no asserted patent is invalid as
anticipated or obvious. Id. Concerning the economic prong of the
domestic industry requirement, the Final ID reduced Kia's alleged
investments due to Kia's failure to establish that certain of its
alleged domestic industry products are representative of other alleged
domestic industry products. Id. at 33-37.
On February 6, 2023, Respondents filed a petition for review
challenging the Final ID's findings on the economic prong of the
domestic industry requirement, infringement, and validity. Also on
February 6, 2023, Kia filed a petition for review challenging the Final
ID's findings of noninfringement and contingently petitioning regarding
the Final ID's findings concerning non-satisfaction of the technical
prong of the domestic industry requirement regarding the '963, '757,
and '471 patents. On February 14, 2023, Kia and Respondents filed
responses to each other's petitions.
Having examined the record of this investigation, including the
ALJ's Final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the Final ID in its entirety.
The Commission has also determined to extend the target date for the
completion of the investigation until September 26, 2023.
In connection with its review, the Commission requests briefing on
the following issues. The parties are requested to brief their
positions with reference to the applicable law, the existing
evidentiary record, and the parties' submissions during the
investigation.
1. Please identify, with citations to the record prior to the Final
ID, where Kia satisfied its burden of proof to establish infringement
of each asserted patent by applying the ordinary observer test. As a
part of your discussion, please discuss:
a. the impact, if any, of the Final ID's determination not to rely
upon the testimony of Kia's expert in the Final ID's infringement
analysis because such testimony is conclusory. Final ID at 33.
b. what evidence and argument beyond side-by-side images of the
patented designs and accused products, if anything, is needed to
satisfy the burden of proof, and whether Kia provided that proof, in
this investigation. For example, was Kia required to provide a written
explanation in its prehearing and/or post hearing briefs discussing how
the accused products and each asserted patent are ``substantially the
same'' from the perspective of the ordinary observer?
2. Please identify, with citation to the record prior to the Final
ID, where Kia satisfied its burden of proof to establish the technical
prong of the domestic industry requirement for each asserted patent. As
part of your discussion, please discuss what evidence and argument
beyond side-by-side images of the patented designs and asserted
domestic industry products, if anything, is needed to satisfy the
burden of proof, and whether Kia provided that proof, in this
investigation. For example, was Kia required to provide a written
explanation in its prehearing and/or post hearing briefs discussing how
the asserted domestic industry products and each asserted patent are
``substantially the same'' from the perspective of the ordinary
observer?
3. Please discuss whether Kia satisfied its burden of proof to
establish that it has satisfied the economic prong of the domestic
industry requirement through significant investments in plant and
equipment based on the revised patent-by-patent investments to account
for the non-representative products. Please also identify, with
citations to the record prior to the Final ID, where Kia satisfied its
burden of proof as to the significance of the revised investments for
each patent.
4. Please address whether the Final ID, in finding infringement or
satisfaction of the technical prong as to the asserted design patents
despite complainants' failure to provide a written explanation
regarding similarity between the accused product and asserted design
from the standpoint of the ordinary observer, is consistent with
relevant legal authority. Please specifically address whether the Final
ID, by providing such a written explanation in the first instance,
presents issues under the Administrative Procedure Act.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue a cease and desist order that could result in the respondent
being required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. Accordingly, the Commission is
interested in receiving written submissions that address the form of
remedy, if any, that should be ordered. If a party seeks exclusion of
an article from entry into the United States for purposes other than
entry for consumption, the party should so indicate and provide
information establishing that activities involving other types of entry
either are adversely affecting it or likely to do so. For background,
see Certain Devices for Connecting Computers via Telephone Lines, Inv.
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December
1994).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or a cease and desist order would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no position on the Commission's action. 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 Commission requests that the parties to
the investigation file written submissions on the issues identified in
this notice. The Commission encourages parties to the investigation,
interested government agencies, and any other interested parties to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should address the recommended
determination by the ALJ on remedy and bonding, which issued on January
24, 2023. The Commission further requests that Kia submit proposed
remedial orders, state the date when the asserted patents expire,
provide the HTSUS subheadings under which the subject articles are
imported, and supply a list of known importers of the subject article.
The written submissions, exclusive of any exhibits, must not exceed 50
pages, and must be filed no later than close of business on May 25,
2023. Reply submissions must not exceed 20 pages, and must be filed
[[Page 31522]]
no later than the close of business on June 1, 2023. 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 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1291) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary, (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. 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 May 11,
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: May 11, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-10477 Filed 5-16-23; 8:45 am]
BILLING CODE 7020-02-P
