Certain Soft Projectile Launching Devices, Components Thereof, Ammunition, and Products Containing Same; Notice of Commission Determination To Review in Part a Final Initial Determination of Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding; Extension of the Target Date, 47605-47607 [2024-12118]
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Federal Register / Vol. 89, No. 107 / Monday, June 3, 2024 / Notices
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2007c42c71b531; Meeting Number:
2827 908 6068, Password: AMP22.
FOR FURTHER INFORMATION CONTACT: Mr.
William Stewart, Bureau of
Reclamation, telephone (385) 622–2179,
email at wstewart@usbr.gov. Individuals
who are deaf, deafblind, hard of hearing,
or have a speech disability may dial 711
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as a result of the Record of Decision on
the Operation of Glen Canyon Dam
Final Environmental Impact Statement
to comply with consultation
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Authority: 5 U.S.C. ch. 10.
William Stewart,
Adaptive Management Group Chief, Upper
Colorado Basin—Interior Region 7.
[FR Doc. 2024–12082 Filed 5–31–24; 8:45 am]
BILLING CODE 4332–90–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1325]
Certain Soft Projectile Launching
Devices, Components Thereof,
Ammunition, and Products Containing
Same; Notice of Commission
Determination To Review in Part a
Final Initial Determination of Violation
of Section 337; Schedule for Filing
Written Submissions on Remedy, the
Public Interest, and Bonding;
Extension of the Target Date
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission 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,
SUMMARY:
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47605
and interested persons on remedy, the
public interest, and bonding based on
the schedule set forth below. The target
date is extended to April 15, 2024.
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 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
on August 26, 2022, based on a
complaint filed by complainants
Hasbro, Inc. of Pawtucket, Rhode Island
(‘‘Hasbro’’), and Spin Master, Inc. of Los
Angeles, California (‘‘Spin Master’’)
(together, ‘‘Complainants’’). 87 FR
52595–96 (Aug. 26, 2022). The
complaint, as supplemented, alleges a
violation of section 337 of the Tariff Act
of 1930, as amended,19 U.S.C. 1337
(‘‘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 soft projectile launching devices,
components thereof, ammunition, and
products containing same by reason of
the infringement of one or more of
claims 1–15 and 17–21 of U.S. Patent
No. 8,371,282 (‘‘the ’282 patent’’) and
claims 1–6 and 10–15 of U.S. Patent No.
8,640,683 (‘‘the ’683 patent’’). Id. at
52595. The complaint further alleges
that an industry in the United States
exists or is in the process of being
established. Id. The notice of
investigation names as respondents
Shenzhen Yi Jin Electronics Science of
Shenzhen City, China, Guangdong Yu
Lee Technology Corp. of Dongguan City,
China, Yu Lee Company Ltd. of Tsuen
Wan, Hong Kong, and Gel Blaster Inc. f/
k/a Gel Blaster, LLC of Austin, Texas
(together, ‘‘the Gel Blaster
Respondents’’); S-Beam Precision
Products Ltd. of Zhongshan City, China,
Splat-R-Ball, LLC of Rogers, Arkansas,
and Daisy Manufacturing Company of
Rogers, Arkansas (together, ‘‘the SplatR-Ball Respondents’’); and Prime Time
Toys Ltd. of Kwun Tong, Hong Kong,
Prime Time Toys LLC of Pompton
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Lakes, New Jersey, and Easebon
Services Ltd. of Kwun Tong, Hong Kong
(together, ‘‘PTT’’) (collectively,
‘‘Respondents’’). Id. The Office of Unfair
Import Investigations (‘‘OUII’’) is a party
to the investigation. Id. at 52595–96.
Complainants originally asserted that
Respondents violated section 337 based
on infringement of claims 1–15 and 17–
21 of the ’282 patent and claims 1–6 and
10–15 of the ’683 patent. Id. at 52595.
The Commission previously terminated
the investigation with respect to claims
1–7, 9–15, 17, 18, and 21 of the ’282
patent and claims 1–4, 6, 10–12, 13 and
15 of the ’683 patent based on
Complainants’ partial withdrawal of the
complaint. Order No. 10 (Oct. 25, 2022),
unreviewed by Comm’n Notice (Nov. 16,
2022); Order No. 21 (Jan. 18, 2023),
unreviewed by Comm’n Notice (Feb. 14,
2023); Order No. 44 (May 17, 2023),
unreviewed by Comm’n Notice (May 30,
2023). Accordingly, at the time of the
evidentiary hearing, claims 8, 19, and 20
of the ’282 patent and claims 5 and 14
of the ’683 patent remained at issue.
On November 10, 2022, Complainants
and Respondents stipulated that the
’282 and ’683 patents share a common
specification and describe projectile
launchers, soft projectiles made with
‘‘super absorbent polymers,’’ and
systems comprised of projectile
launchers and soft projectiles.
Technology Stipulation (Nov. 10, 2022).
On November 21, 2022, Respondents
stipulated that the importation
requirement is satisfied. On May 16,
2023, Complainants and Respondents
stipulated that the technical prong of
the domestic industry requirement is
satisfied under the ALJ’s construction of
‘‘super absorbent polymer.’’ On May 18,
2023, the parties stipulated regarding
the disclosure of prior art.
On March 27, 2023, the ALJ issued a
claim construction order. Order No. 28
(Mar. 27, 2023). The ALJ held an
evidentiary hearing on May 19, and 22–
23, 2023.
On April 27, 2023, the ALJ granted a
motion for a summary determination
that Respondents infringed claims 6, 8,
19, and 20 of the ’282 patent and claims
1, 5, and 11 of the ’683 patent. Order
No. 37 (Apr. 27, 2023). Shortly
thereafter, the Commission terminated
the Gel Blaster Respondents and SplatR-Ball Respondents based on settlement.
Order No. 42 (May 17, 2023),
unreviewed by Comm’n Notice (May 30,
2023); Order No. 45 (May 19, 2023),
unreviewed by Comm’n Notice (May 30,
2023). Also, as noted above, the
Commission subsequently terminated
the investigation with respect to claim
6 of the ’282 patent and claims 1, and
11 of the ’683 patent. The Commission
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affirmed the finding of infringement
against PTT regarding claims 8, 19, and
20 of the ’282 patent and claims 5 of the
’683 patent but determined to review
and vacate as moot the findings with
respect to the Gel Blaster Respondents,
Splat-R-Ball Respondents, and the
withdrawn claims. Comm’n Notice (May
30, 2023).
On October 25, 2023, the ALJ issued
the Final ID finding a violation of
section 337 with respect to claims 8, 19,
and 20 of the ’282 patent and claims 5
and 14 of the ’683 patent. Final ID at ii–
iii. Specifically, the Final ID notes that
the Commission already found that ‘‘the
Accused Blasters (i.e., blaster kits with
blasters and ammunition)’’ directly
infringe claims 8, 19, and 20 of the ’282
patent and claim 5 of the ’683 patent,
and that PTT stipulated that the accused
products directly infringe claim 14. Id.
at 21–22, 38–39. The Final ID finds that
PTT also induces and contributes to
infringement with respect to those
claims. Id. at 25–30, 39–41. The Final ID
further finds that Complainants have
satisfied the technical prong of the
domestic industry requirement with
respect to claims 8, 19, and 20 of the
’282 patent and claims 5 and 14 of the
’683 patent. Id. at 31–36, 41–44.
Additionally, the Final ID finds that the
asserted claims are not invalid as
obvious under 35 U.S.C. 103 due to
PTT’s failure to provide a motivation to
combine the references at issue and
Complainants’ showing on secondary
considerations. Id. at 44–91. Finally, the
Final ID finds that Complainants failed
to show that a domestic industry exists,
but that Complainants did show that a
domestic industry is in the process of
being established. Id. at 91–117.
On October 26, 2023, the Commission
requested comments from the public
and interested government agencies
regarding any public interest issues
raised by the ALJ’s RD. See 88 FR
74510–11 (Oct. 31, 2023). The
Commission received no comments
from the public or government agencies
and received no comments from the
parties on the public interest pursuant
to Commission Rule 210.50(a)(4). 19
CFR 210.50(a)(4).
On November 6, 2023, PTT filed a
petition for review challenging the Final
ID’s findings that: (1) PTT failed to
provide motivations to combine prior
art to support a finding of obviousness;
(2) secondary considerations support a
finding of nonobviousness; and (3)
Complainants showed an industry in
the process of being established. Also on
November 6, 2023, Complainants filed a
contingent petition for review of the
Final ID’s finding that Complainants
failed to show that a domestic industry
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exists. On November 14. 2023, the
Complainants and PTT filed responses
opposing each other’s petitions, and
OUII filed a response opposing both
petitions.
Having examined the record of 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.
Specifically, the Commission has
determined to review the Final ID’s
findings on obviousness and the
economic prong of the domestic
industry requirement. The Commission
has determined not to review the
remainder of the Final ID. The
Commission has also determined to
extend the target date to April 15, 2024.
In connection with its review, the
Commission requests briefing on the
following issue. 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.
Please identify and discuss with citations
to the record whether any argument or
evidence was presented to the ALJ that a
significant and unusual development(s)
existed after the complaint was filed in this
matter that may justify consideration of postcomplaint evidence to support Complainants’
domestic industry claim. See, e.g., Certain
Televisions, Remote Controls, and
Components Thereof, Inv. No. 337–TA–1263,
Comm’n Op. at 20–21 (Nov. 30, 2022) (Public
Vers.).
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 cease and
desist order(s) 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 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
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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 October 25, 2023. The Commission
further requests that Complainants and
OUII 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 20 pages, and
must be filed no later than close of
business on February 13, 2024. Reply
submissions must not exceed 10 pages
and must be filed no later than the close
of business on February 20, 2024. 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
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18:00 May 31, 2024
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(March 19, 2020). Submissions should
refer to the investigation number (Inv.
No. 337–TA–1325) 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 January 30,
2024.
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.
Original Issued Date: January 30, 2024.
Issued: May 29, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024–12118 Filed 5–31–24; 8:45 am]
BILLING CODE 7020–02–P
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47607
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 701–TA–452 and 731–
TA–1129–1130 (Third Review)]
Raw Flexible Magnets From China and
Taiwan; Institution of Five-Year
Reviews
International Trade
Commission.
ACTION: Notice.
AGENCY:
The Commission hereby gives
notice that it has instituted reviews
pursuant to the Tariff Act of 1930 (‘‘the
Act’’), as amended, to determine
whether revocation of the antidumping
and countervailing duty orders on raw
flexible magnets from China and Taiwan
would be likely to lead to continuation
or recurrence of material injury.
Pursuant to the Act, interested parties
are requested to respond to this notice
by submitting the information specified
below to the Commission.
DATES: Instituted June 3, 2024. To be
assured of consideration, the deadline
for responses is July 3, 2024. Comments
on the adequacy of responses may be
filed with the Commission by August 9,
2024.
FOR FURTHER INFORMATION CONTACT:
Alexis Yim (202–708–1446), Office of
Investigations, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436. Hearingimpaired persons can obtain
information on this matter by contacting
the Commission’s TDD terminal on 202–
205–1810. Persons with mobility
impairments who will need special
assistance in gaining access to the
Commission should contact the Office
of the Secretary at 202–205–2000.
General information concerning the
Commission may also be obtained by
accessing its internet server (https://
www.usitc.gov). The public record for
this proceeding may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION:
Background.—On September 17,
2008, the Department of Commerce
(‘‘Commerce’’) published antidumping
and countervailing duty orders on
imports of raw flexible magnets from
China and an antidumping duty order
on raw flexible magnets from Taiwan
(73 FR 53847–53850). Commerce issued
a continuation of the antidumping and
countervailing duty orders on imports of
raw flexible magnets from China and
Taiwan following Commerce’s and the
Commission’s first five-year reviews,
effective February 5, 2014 (79 FR 6886),
and second five-year reviews, effective
SUMMARY:
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]]>Agencies
[Federal Register Volume 89, Number 107 (Monday, June 3, 2024)]
[Notices]
[Pages 47605-47607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12118]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1325]
Certain Soft Projectile Launching Devices, Components Thereof,
Ammunition, and Products Containing Same; Notice of Commission
Determination To Review in Part a Final Initial Determination of
Violation of Section 337; Schedule for Filing Written Submissions on
Remedy, the Public Interest, and Bonding; Extension of the Target Date
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission 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 target date is extended to April 15,
2024.
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 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
on August 26, 2022, based on a complaint filed by complainants Hasbro,
Inc. of Pawtucket, Rhode Island (``Hasbro''), and Spin Master, Inc. of
Los Angeles, California (``Spin Master'') (together, ``Complainants'').
87 FR 52595-96 (Aug. 26, 2022). The complaint, as supplemented, alleges
a violation of section 337 of the Tariff Act of 1930, as amended,19
U.S.C. 1337 (``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 soft projectile launching devices,
components thereof, ammunition, and products containing same by reason
of the infringement of one or more of claims 1-15 and 17-21 of U.S.
Patent No. 8,371,282 (``the '282 patent'') and claims 1-6 and 10-15 of
U.S. Patent No. 8,640,683 (``the '683 patent''). Id. at 52595. The
complaint further alleges that an industry in the United States exists
or is in the process of being established. Id. The notice of
investigation names as respondents Shenzhen Yi Jin Electronics Science
of Shenzhen City, China, Guangdong Yu Lee Technology Corp. of Dongguan
City, China, Yu Lee Company Ltd. of Tsuen Wan, Hong Kong, and Gel
Blaster Inc. f/k/a Gel Blaster, LLC of Austin, Texas (together, ``the
Gel Blaster Respondents''); S-Beam Precision Products Ltd. of Zhongshan
City, China, Splat-R-Ball, LLC of Rogers, Arkansas, and Daisy
Manufacturing Company of Rogers, Arkansas (together, ``the Splat-R-Ball
Respondents''); and Prime Time Toys Ltd. of Kwun Tong, Hong Kong, Prime
Time Toys LLC of Pompton
[[Page 47606]]
Lakes, New Jersey, and Easebon Services Ltd. of Kwun Tong, Hong Kong
(together, ``PTT'') (collectively, ``Respondents''). Id. The Office of
Unfair Import Investigations (``OUII'') is a party to the
investigation. Id. at 52595-96.
Complainants originally asserted that Respondents violated section
337 based on infringement of claims 1-15 and 17-21 of the '282 patent
and claims 1-6 and 10-15 of the '683 patent. Id. at 52595. The
Commission previously terminated the investigation with respect to
claims 1-7, 9-15, 17, 18, and 21 of the '282 patent and claims 1-4, 6,
10-12, 13 and 15 of the '683 patent based on Complainants' partial
withdrawal of the complaint. Order No. 10 (Oct. 25, 2022), unreviewed
by Comm'n Notice (Nov. 16, 2022); Order No. 21 (Jan. 18, 2023),
unreviewed by Comm'n Notice (Feb. 14, 2023); Order No. 44 (May 17,
2023), unreviewed by Comm'n Notice (May 30, 2023). Accordingly, at the
time of the evidentiary hearing, claims 8, 19, and 20 of the '282
patent and claims 5 and 14 of the '683 patent remained at issue.
On November 10, 2022, Complainants and Respondents stipulated that
the '282 and '683 patents share a common specification and describe
projectile launchers, soft projectiles made with ``super absorbent
polymers,'' and systems comprised of projectile launchers and soft
projectiles. Technology Stipulation (Nov. 10, 2022).
On November 21, 2022, Respondents stipulated that the importation
requirement is satisfied. On May 16, 2023, Complainants and Respondents
stipulated that the technical prong of the domestic industry
requirement is satisfied under the ALJ's construction of ``super
absorbent polymer.'' On May 18, 2023, the parties stipulated regarding
the disclosure of prior art.
On March 27, 2023, the ALJ issued a claim construction order. Order
No. 28 (Mar. 27, 2023). The ALJ held an evidentiary hearing on May 19,
and 22-23, 2023.
On April 27, 2023, the ALJ granted a motion for a summary
determination that Respondents infringed claims 6, 8, 19, and 20 of the
'282 patent and claims 1, 5, and 11 of the '683 patent. Order No. 37
(Apr. 27, 2023). Shortly thereafter, the Commission terminated the Gel
Blaster Respondents and Splat-R-Ball Respondents based on settlement.
Order No. 42 (May 17, 2023), unreviewed by Comm'n Notice (May 30,
2023); Order No. 45 (May 19, 2023), unreviewed by Comm'n Notice (May
30, 2023). Also, as noted above, the Commission subsequently terminated
the investigation with respect to claim 6 of the '282 patent and claims
1, and 11 of the '683 patent. The Commission affirmed the finding of
infringement against PTT regarding claims 8, 19, and 20 of the '282
patent and claims 5 of the '683 patent but determined to review and
vacate as moot the findings with respect to the Gel Blaster
Respondents, Splat-R-Ball Respondents, and the withdrawn claims. Comm'n
Notice (May 30, 2023).
On October 25, 2023, the ALJ issued the Final ID finding a
violation of section 337 with respect to claims 8, 19, and 20 of the
'282 patent and claims 5 and 14 of the '683 patent. Final ID at ii-iii.
Specifically, the Final ID notes that the Commission already found that
``the Accused Blasters (i.e., blaster kits with blasters and
ammunition)'' directly infringe claims 8, 19, and 20 of the '282 patent
and claim 5 of the '683 patent, and that PTT stipulated that the
accused products directly infringe claim 14. Id. at 21-22, 38-39. The
Final ID finds that PTT also induces and contributes to infringement
with respect to those claims. Id. at 25-30, 39-41. The Final ID further
finds that Complainants have satisfied the technical prong of the
domestic industry requirement with respect to claims 8, 19, and 20 of
the '282 patent and claims 5 and 14 of the '683 patent. Id. at 31-36,
41-44. Additionally, the Final ID finds that the asserted claims are
not invalid as obvious under 35 U.S.C. 103 due to PTT's failure to
provide a motivation to combine the references at issue and
Complainants' showing on secondary considerations. Id. at 44-91.
Finally, the Final ID finds that Complainants failed to show that a
domestic industry exists, but that Complainants did show that a
domestic industry is in the process of being established. Id. at 91-
117.
On October 26, 2023, the Commission requested comments from the
public and interested government agencies regarding any public interest
issues raised by the ALJ's RD. See 88 FR 74510-11 (Oct. 31, 2023). The
Commission received no comments from the public or government agencies
and received no comments from the parties on the public interest
pursuant to Commission Rule 210.50(a)(4). 19 CFR 210.50(a)(4).
On November 6, 2023, PTT filed a petition for review challenging
the Final ID's findings that: (1) PTT failed to provide motivations to
combine prior art to support a finding of obviousness; (2) secondary
considerations support a finding of nonobviousness; and (3)
Complainants showed an industry in the process of being established.
Also on November 6, 2023, Complainants filed a contingent petition for
review of the Final ID's finding that Complainants failed to show that
a domestic industry exists. On November 14. 2023, the Complainants and
PTT filed responses opposing each other's petitions, and OUII filed a
response opposing both petitions.
Having examined the record of 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. Specifically,
the Commission has determined to review the Final ID's findings on
obviousness and the economic prong of the domestic industry
requirement. The Commission has determined not to review the remainder
of the Final ID. The Commission has also determined to extend the
target date to April 15, 2024.
In connection with its review, the Commission requests briefing on
the following issue. 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.
Please identify and discuss with citations to the record whether
any argument or evidence was presented to the ALJ that a significant
and unusual development(s) existed after the complaint was filed in
this matter that may justify consideration of post-complaint
evidence to support Complainants' domestic industry claim. See,
e.g., Certain Televisions, Remote Controls, and Components Thereof,
Inv. No. 337-TA-1263, Comm'n Op. at 20-21 (Nov. 30, 2022) (Public
Vers.).
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 cease and desist order(s) 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 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
[[Page 47607]]
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 October
25, 2023. The Commission further requests that Complainants and OUII
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 20 pages, and must be filed no later than close of
business on February 13, 2024. Reply submissions must not exceed 10
pages and must be filed no later than the close of business on February
20, 2024. 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-1325) 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 January
30, 2024.
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.
Original Issued Date: January 30, 2024.
Issued: May 29, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-12118 Filed 5-31-24; 8:45 am]
BILLING CODE 7020-02-P
