Certain Movable Barrier Operator Systems and Components Thereof; Notice of a Commission Determination To Review a Remand Initial Determination on Second Remand Order; Request for Written Submissions on Remedy, the Public Interest, and Bond, 54038-54040 [2024-14291]
Download as PDF
<![CDATA[
khammond on DSKJM1Z7X2PROD with NOTICES
54038
Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices
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.
Abstract: Big Thicket National
Preserve (BITH) enabling legislation
states that ‘‘The Secretary shall permit
hunting, fishing, and trapping on lands
and waters under their jurisdiction
within the preserve following the
applicable laws of the United States and
the State of Texas.’’ Special Use
Regulations for hunting and trapping in
the Preserve was published in the
Federal Register (48 FR 30296) on June
30, 1983, effective October 3, 1983.
These regulations, found at 36 CFR 7.85,
provide for proper use, management,
government, public safety, and visitor
enjoyment of hunting and trapping on
Preserve lands. One of the goals in the
draft Hunting and Trapping plan for Big
Thicket is to ‘‘Provide the Preserve with
a mechanism for tracking population
trends using harvest records and to
establish trigger points when additional
survey methods should be used to
document major shifts of game species
populations.’’ This information will be
collected using harvest cards.
Title of Collection: Big Thicket
National Preserve Hunting and Trapping
Harvest Cards.
OMB Control Number: 1024–NEW.
Form Number: None.
Type of Review: New.
Respondents/Affected Public:
Individuals and Households.
Total Estimated Number of Annual
Responses: 18,456.
Estimated Completion Time per
Response: 5 mins.
Total Estimated Number of Annual
Burden Hours: 1,538 hrs.
Respondent’s Obligation: Required to
obtain or retain benefits.
Frequency of Collection: One-time.
Total Estimated Annual Nonhour
Burden Cost: None.
An agency may not conduct or
sponsor nor is a person required to
respond to a collection of information
unless it displays a currently valid OMB
control number.
The authority for this action is the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Phadrea Ponds,
Information Collection Clearance Officer,
National Park Service.
[FR Doc. 2024–14161 Filed 6–27–24; 8:45 am]
BILLING CODE 4312–52–P
VerDate Sep<11>2014
19:25 Jun 27, 2024
Jkt 262001
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1118 (Remand)]
Certain Movable Barrier Operator
Systems and Components Thereof;
Notice of a Commission Determination
To Review a Remand Initial
Determination on Second Remand
Order; Request for Written
Submissions on Remedy, the Public
Interest, and Bond
International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (the ‘‘Commission’’) has
determined to review a Remand Initial
Determination on Second Remand
Order (‘‘Second RID’’) finding that
complainant The Chamberlain Group,
Inc. (‘‘Chamberlain’’) has satisfied the
economic prong of the domestic
industry requirement with respect to
U.S. Patent No. 8,587,404 (‘‘the ’404
patent’’). The Commission requests
written submissions from the parties,
interested government agencies, and
other interested persons on the issues of
remedy, the public interest, and bond,
under the schedule set forth below.
FOR FURTHER INFORMATION CONTACT: Carl
P. Bretscher, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–2382. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket system
(‘‘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, telephone
(202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on June 11, 2018, based on a complaint,
as supplemented, filed by Chamberlain
of Oak Brook, Illinois. 83 FR 27020–21
(June 11, 2018). The complaint alleges a
violation of section 337 of the Tariff Act
of 1930, as amended, 19 U.S.C. 1337
(‘‘section 337’’) by way of importing,
selling for importation, or selling in the
United States after importation certain
movable barrier operator systems that
allegedly infringe one or more of the
asserted claims of the ’404 patent, U.S.
SUMMARY:
PO 00000
Frm 00101
Fmt 4703
Sfmt 4703
Patent Nos. 7,755,223 (‘‘the ’223
patent’’), and 6,741,052 (‘‘the ’052
patent’’). Id. The Commission’s notice of
investigation named Nortek Security &
Control, LLC of Carlsbad, California
(presently doing business as Nice North
America LLC); Nortek, Inc. of
Providence, Rhode Island; and GTO
Access Systems, LLC of Tallahassee,
Florida (collectively, ‘‘Nortek’’) as
respondents. Id. The complaint further
alleged the existence of a domestic
industry. The Office of Unfair Import
Investigations was not named as a party
to this investigation. See id.
On November 25, 2019, the presiding
administrative law judge (‘‘ALJ’’) issued
two initial determinations (‘‘IDs’’). First,
the ALJ issued Order No. 38, granting
Chamberlain’s motion for summary
determination that it satisfied the
economic prong of the domestic
industry requirement (‘‘DI economic
prong’’). Order No. 38 (Nov. 25, 2019).
Second, the ALJ issued a final ID
(‘‘FID’’) on violation, as well as a
recommended determination (‘‘RD’’) on
remedy and bond. The FID finds no
violation of section 337 because: (i)
Nortek did not infringe claim 11 of the
’404 patent; (ii) Nortek did not infringe
the ’223 patent and Chamberlain did not
satisfy the technical prong of the
domestic industry requirement (‘‘DI
technical prong’’) for that patent; and
(iii) asserted claim 1 of the ’052 patent
is invalid as obvious. FID at 1, 286–87.
The RD recommends issuing a limited
exclusion order (‘‘LEO’’) and cease-anddesist orders (‘‘CDO’’) against Nortek
and setting the bond at 100 percent
during the period of Presidential review,
if the Commission finds that Nortek
violated section 337. Id. at 280, 282,
286.
The parties did not file any
submissions pursuant to Commission
Rule 210.50(a)(4), 19 CFR 210.50(a)(4).
The Commission also received no
submissions in response to its notice
soliciting comments from the public on
impacts on the public interest should
the recommended relief be granted. 84
FR 70998–999 (Dec. 26, 2019). On April
22, 2020, the Commission determined to
review and, on review, to adopt the
FID’s no-violation finding for the ’404
patent, which was based on a narrow
construction of ‘‘movable barrier
operator’’ that excluded the wall station
from its scope. Comm’n Notice at 3
(Apr. 22, 2020). The Commission
determined to review and ultimately
took no position on the FID’s finding
that Nortek failed to prove by clear and
convincing evidence that claim 11 of the
’404 patent is abstract and thus patentineligible under 35 U.S.C. 101. At the
same time, the Commission vacated
E:\FR\FM\28JNN1.SGM
28JNN1
khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices
Order No. 38 and remanded the
economic prong issue to the ALJ for
further proceedings with respect to the
’223 patent, which was still under
review at that time. Id.; Order Vacating
and Remanding Order No. 38 (Apr. 22,
2020) (‘‘First Remand Order’’).
On July 10, 2020, the ALJ, after reanalyzing the domestic industry per the
Commission’s instructions, issued a
Remand Initial Determination (‘‘First
RID’’ or ‘‘RID1’’). The First RID finds
that Chamberlain made significant
investments in plant and equipment as
well as labor and capital, and thus
satisfied the DI economic prong for the
’223 patent under 19 U.S.C.
1337(a)(3)(A) and (B), respectively.
On September 9, 2020, the
Commission determined to review the
First RID and requested additional
briefing by the parties on issues relating
to the DI economic prong with respect
to the ’223 patent and remedy, bond,
and the public interest. 85 FR 57249–50
(Sept. 14, 2020).
On December 3, 2020, the
Commission determined to adopt the
First RID’s findings that Chamberlain
satisfied the DI economic prong under
subsections 337(a)(3)(A) and (B). 85 FR
79217–18 (Dec. 9, 2020). The
Commission also reversed the FID’s
non-infringement finding for the ’223
patent and found instead that Nortek
violated section 337 by way of
infringing the ’223 patent. Id. Finding
no public interest factors that precluded
relief, the Commission proceeded to
issue an LEO and CDOs against Nortek.
Id.
On June 16, 2020, Chamberlain
appealed the Commission’s no-violation
determinations with respect to the ’404
and ’052 patents. On April 1, 2021,
Nortek cross-appealed the Commission’s
violation determination for the ’223
patent. While the appeals were pending,
the ’052 patent expired.
On April 27, 2023, the Federal Circuit
issued its decision, in which it: (i)
affirmed the Commission’s violation
determination for the ’223 patent; (ii) for
the ’404 patent, reversed the
Commission’s construction of the
limitation ‘‘movable barrier operator,’’
vacated its non-infringement, waiver,
and no-violation determinations, and
remanded to the Commission with
instructions to re-evaluate infringement
using a proper claim construction; and
(iii) vacated the Commission’s
determinations for the expired ’052
patent and remanded with instructions
to dismiss the infringement claim as
moot. The Chamberlain Group, Inc. v.
ITC, Appeal Nos. 20–1965, 21–1829,
2023 WL 3115579 (Fed. Cir. Apr. 27,
2023). The mandate issued on July 19,
VerDate Sep<11>2014
19:25 Jun 27, 2024
Jkt 262001
2023, returning jurisdiction to the
Commission for the remanded issues.
On August 4, 2023, the Commission
issued a notice asking the parties
whether additional proceedings were
necessary on remand. Comm’n Notice
(Aug. 4, 2023). The parties agreed there
was no need to reopen the evidentiary
record, as it has already been fully
developed.
On October 4, 2023, the Commission
issued a second notice directing the
parties to brief: (i) which, if any, of the
accused products infringe claim 11 of
the ’404 patent under the Court’s new
construction of ‘‘movable barrier
operator’’; and (ii) whether the FID
properly finds that claim 11 is not
patent-ineligible under 35 U.S.C. 101.
Comm’n Notice at 3 (Oct. 4, 2023). The
Commission determined not to reopen
the evidentiary record. See id. The
Commission also remanded the
investigation to the presiding ALJ for
the sole purpose of determining whether
Chamberlain satisfied the DI economic
prong for the ’404 patent. In the original
investigation, the Commission found no
infringement of the ’404 patent and thus
DI economic prong as to this patent was
not at issue when the ALJ issued the
First RID. Id.; Remand Order (Oct. 4,
2023) (‘‘Second Remand Order’’). The
Commission also determined to dismiss
the infringement claim against the
expired ’052 patent and vacate all
findings regarding that expired patent as
moot.
Chamberlain and Nortek filed their
initial responses to the Commission’s
second notice on October 27, 2023, and
their replies on November 13, 2023.
On January 11, 2024, the presiding
ALJ issued Order No. 46 directing the
parties to provide additional or
supplemental information regarding the
covered products allegedly protected by
the ’404 patent, the extent to which the
domestic investments relating to
products covered by the ’223 patent
were equally applicable to products
covered by the ’404 patent, the domestic
inventories of products covered by the
’404 patent, and other issues relating to
the DI economic prong analysis. Order
No. 46 (Jan. 11, 2024). The parties filed
their initial responses to Order No. 46
on January 29, 2024, and their
respective replies on February 5, 2024.
On May 8, 2024, the ALJ issued the
Second RID. Order No. 50 (May 8,
2024). The Second RID finds that
Chamberlain has satisfied the DI
economic prong for the ’404 patent
under subsections 337(a)(3)(A), (B), and
(C). The Second RID notes that the
Commission previously determined that
Chamberlain’s domestic industry
products (the ‘‘ ’404 DI Products’’)
PO 00000
Frm 00102
Fmt 4703
Sfmt 4703
54039
practice the ’404 patent, and thus finds
that Chamberlain has satisfied the DI
technical prong for that patent.
Although the Commission did not ask
the ALJ to make findings regarding
infringement or the DI technical prong,
the Second RID finds that Nortek
infringes the ’404 patent, and the same
Nortek products that infringe the ’404
patent also infringe the ’223 patent.
On May 20, 2024, Nortek filed a
petition for review of the Second RID.
On May 28, 2024, Chamberlain filed its
opposition to Nortek’s petition for
review.
Upon review of the evidence of
record, the parties’ submissions, the
final ID, the Second RID, and the
Federal Circuit’s decision on appeal, the
Commission has determined to review
the Second RID.
In connection with the final
disposition of this investigation, the
statute authorizes issuance of, inter alia,
(1) an exclusion order that could result
in the exclusion of the subject articles
from entry into the United States;
and/or (2) cease and desist orders that
could result in the respondent(s) 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
(Dec. 1994).
The statute requires the Commission
to consider the effects of that remedy
upon the public interest. The public
interest factors the Commission will
consider include the effect that an
exclusion order and cease and desist
orders would have on: (1) the public
health and welfare, (2) competitive
conditions in the U.S. economy, (3) U.S.
production of articles that are like or
directly competitive with those that are
subject to investigation, and (4) U.S.
consumers. The Commission is
therefore interested in receiving written
submissions that address the
aforementioned public interest factors
in the context of this investigation.
If the Commission orders some form
of remedy, the U.S. Trade
Representative, as delegated by the
E:\FR\FM\28JNN1.SGM
28JNN1
khammond on DSKJM1Z7X2PROD with NOTICES
54040
Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices
President, has 60 days to approve,
disapprove, or take no action on the
Commission’s determination. See
Presidential Memorandum of July 21,
2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles
would be entitled to enter the United
States under bond, in an amount
determined by the Commission and
prescribed by the Secretary of the
Treasury. The Commission is therefore
interested in receiving submissions
concerning the amount of the bond that
should be imposed if a remedy is
ordered.
Written Submissions: Parties to the
investigation, interested government
agencies, and any other interested
parties are encouraged to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
submissions should take into
consideration the remedy and bond
previously issued in this investigation,
the Commission’s Opinion of December
3, 2020, with respect to remedy, the
public interest, and bond, and the
recommended determination on remedy
and bond issued by the presiding ALJ
on November 25, 2019.
In its initial submission, Complainant
is also requested to identify the remedy
sought and to submit proposed remedial
orders for the Commission’s
consideration. Complainant is further
requested to state the dates that the
asserted patents expire, to provide the
HTSUS subheadings under which the
accused products are imported, and to
supply the identification information for
all known importers of the products at
issue in this investigation. The initial
written submissions and proposed
remedial orders must be filed no later
than close of business on July 8, 2024.
Reply submissions must be filed no later
than the close of business on July 15,
2024. No further submissions on these
issues will be permitted unless
otherwise ordered by the Commission.
Opening submissions are limited to 15
pages. Reply submissions are limited to
10 pages. No further submissions on any
of 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–1118 (remand)) 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
VerDate Sep<11>2014
19:25 Jun 27, 2024
Jkt 262001
questions regarding filing should
contact the Secretary at (202) 205–2000.
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment by marking each document
with a header indicating that the
document contains confidential
information. This marking will be
deemed to satisfy the request procedure
set forth in Rules 201.6(b) and
210.5(e)(2) (19 CFR 201.6(b) &
210.5(e)(2)). Documents for which
confidential treatment by the
Commission is properly sought will be
treated accordingly. Any non-party
wishing to submit comments containing
confidential information must serve
those comments on the parties to the
investigation pursuant to the applicable
Administrative Protective Order. A
redacted non-confidential version of the
document must also be filed with the
Commission and served on any parties
to the investigation within two business
days of 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 June 24,
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.
Issued: June 25, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024–14291 Filed 6–27–24; 8:45 am]
BILLING CODE 7020–02–P
PO 00000
Frm 00103
Fmt 4703
Sfmt 4703
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 731–TA–1696
(Preliminary)]
Large Top Mount Combination
Refrigerator-Freezers From Thailand;
Revised Schedule for the Subject
Investigation
United States International
Trade Commission.
ACTION: Notice.
AGENCY:
DATES:
June 24, 2024.
FOR FURTHER INFORMATION CONTACT:
Stamen Borisson ((202) 205–3125),
Office of Investigations, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436.
Hearing-impaired 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
these investigations may be viewed on
the Commission’s electronic docket
(EDIS) at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION: On May
30, 2024, the Commission established a
schedule for the conduct of the
preliminary phase of the subject
investigation (89 FR 48190, June 5,
2024). Subsequently, the Department of
Commerce (‘‘Commerce’’) extended the
deadline for its initiation determination
from June 19, 2024 to July 9, 2024 (89
FR 52024, June 21, 2024). The
Commission, therefore, is revising its
schedule to conform with Commerce’s
new schedule.
The Commission must reach a
preliminary determination within 25
days after the date on which the
Commission receives notice from
Commerce of initiation of the
investigation, and the Commission’s
views must be transmitted to Commerce
within five business days thereafter.
For further information concerning
this proceeding, see the Commission’s
notice cited above and consult the
Commission’s Rules of Practice and
Procedure, part 201, subparts A and B
(19 CFR part 201), and part 207,
subparts A and B (19 CFR part 207).
Authority: This investigation is being
conducted under authority of title VII of
the Tariff Act of 1930; this notice is
published pursuant to § 207.12 of the
Commission’s rules.
E:\FR\FM\28JNN1.SGM
28JNN1
]]>Agencies
[Federal Register Volume 89, Number 125 (Friday, June 28, 2024)]
[Notices]
[Pages 54038-54040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14291]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1118 (Remand)]
Certain Movable Barrier Operator Systems and Components Thereof;
Notice of a Commission Determination To Review a Remand Initial
Determination on Second Remand Order; Request for Written Submissions
on Remedy, the Public Interest, and Bond
AGENCY: International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (the ``Commission'') has determined to review a Remand
Initial Determination on Second Remand Order (``Second RID'') finding
that complainant The Chamberlain Group, Inc. (``Chamberlain'') has
satisfied the economic prong of the domestic industry requirement with
respect to U.S. Patent No. 8,587,404 (``the '404 patent''). The
Commission requests written submissions from the parties, interested
government agencies, and other interested persons on the issues of
remedy, the public interest, and bond, under the schedule set forth
below.
FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2382. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket system (``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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on June 11, 2018, based on a complaint, as supplemented, filed by
Chamberlain of Oak Brook, Illinois. 83 FR 27020-21 (June 11, 2018). The
complaint alleges a violation of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337 (``section 337'') by way of importing,
selling for importation, or selling in the United States after
importation certain movable barrier operator systems that allegedly
infringe one or more of the asserted claims of the '404 patent, U.S.
Patent Nos. 7,755,223 (``the '223 patent''), and 6,741,052 (``the '052
patent''). Id. The Commission's notice of investigation named Nortek
Security & Control, LLC of Carlsbad, California (presently doing
business as Nice North America LLC); Nortek, Inc. of Providence, Rhode
Island; and GTO Access Systems, LLC of Tallahassee, Florida
(collectively, ``Nortek'') as respondents. Id. The complaint further
alleged the existence of a domestic industry. The Office of Unfair
Import Investigations was not named as a party to this investigation.
See id.
On November 25, 2019, the presiding administrative law judge
(``ALJ'') issued two initial determinations (``IDs''). First, the ALJ
issued Order No. 38, granting Chamberlain's motion for summary
determination that it satisfied the economic prong of the domestic
industry requirement (``DI economic prong''). Order No. 38 (Nov. 25,
2019). Second, the ALJ issued a final ID (``FID'') on violation, as
well as a recommended determination (``RD'') on remedy and bond. The
FID finds no violation of section 337 because: (i) Nortek did not
infringe claim 11 of the '404 patent; (ii) Nortek did not infringe the
'223 patent and Chamberlain did not satisfy the technical prong of the
domestic industry requirement (``DI technical prong'') for that patent;
and (iii) asserted claim 1 of the '052 patent is invalid as obvious.
FID at 1, 286-87. The RD recommends issuing a limited exclusion order
(``LEO'') and cease-and-desist orders (``CDO'') against Nortek and
setting the bond at 100 percent during the period of Presidential
review, if the Commission finds that Nortek violated section 337. Id.
at 280, 282, 286.
The parties did not file any submissions pursuant to Commission
Rule 210.50(a)(4), 19 CFR 210.50(a)(4). The Commission also received no
submissions in response to its notice soliciting comments from the
public on impacts on the public interest should the recommended relief
be granted. 84 FR 70998-999 (Dec. 26, 2019). On April 22, 2020, the
Commission determined to review and, on review, to adopt the FID's no-
violation finding for the '404 patent, which was based on a narrow
construction of ``movable barrier operator'' that excluded the wall
station from its scope. Comm'n Notice at 3 (Apr. 22, 2020). The
Commission determined to review and ultimately took no position on the
FID's finding that Nortek failed to prove by clear and convincing
evidence that claim 11 of the '404 patent is abstract and thus patent-
ineligible under 35 U.S.C. 101. At the same time, the Commission
vacated
[[Page 54039]]
Order No. 38 and remanded the economic prong issue to the ALJ for
further proceedings with respect to the '223 patent, which was still
under review at that time. Id.; Order Vacating and Remanding Order No.
38 (Apr. 22, 2020) (``First Remand Order'').
On July 10, 2020, the ALJ, after re-analyzing the domestic industry
per the Commission's instructions, issued a Remand Initial
Determination (``First RID'' or ``RID1''). The First RID finds that
Chamberlain made significant investments in plant and equipment as well
as labor and capital, and thus satisfied the DI economic prong for the
'223 patent under 19 U.S.C. 1337(a)(3)(A) and (B), respectively.
On September 9, 2020, the Commission determined to review the First
RID and requested additional briefing by the parties on issues relating
to the DI economic prong with respect to the '223 patent and remedy,
bond, and the public interest. 85 FR 57249-50 (Sept. 14, 2020).
On December 3, 2020, the Commission determined to adopt the First
RID's findings that Chamberlain satisfied the DI economic prong under
subsections 337(a)(3)(A) and (B). 85 FR 79217-18 (Dec. 9, 2020). The
Commission also reversed the FID's non-infringement finding for the
'223 patent and found instead that Nortek violated section 337 by way
of infringing the '223 patent. Id. Finding no public interest factors
that precluded relief, the Commission proceeded to issue an LEO and
CDOs against Nortek. Id.
On June 16, 2020, Chamberlain appealed the Commission's no-
violation determinations with respect to the '404 and '052 patents. On
April 1, 2021, Nortek cross-appealed the Commission's violation
determination for the '223 patent. While the appeals were pending, the
'052 patent expired.
On April 27, 2023, the Federal Circuit issued its decision, in
which it: (i) affirmed the Commission's violation determination for the
'223 patent; (ii) for the '404 patent, reversed the Commission's
construction of the limitation ``movable barrier operator,'' vacated
its non-infringement, waiver, and no-violation determinations, and
remanded to the Commission with instructions to re-evaluate
infringement using a proper claim construction; and (iii) vacated the
Commission's determinations for the expired '052 patent and remanded
with instructions to dismiss the infringement claim as moot. The
Chamberlain Group, Inc. v. ITC, Appeal Nos. 20-1965, 21-1829, 2023 WL
3115579 (Fed. Cir. Apr. 27, 2023). The mandate issued on July 19, 2023,
returning jurisdiction to the Commission for the remanded issues.
On August 4, 2023, the Commission issued a notice asking the
parties whether additional proceedings were necessary on remand. Comm'n
Notice (Aug. 4, 2023). The parties agreed there was no need to reopen
the evidentiary record, as it has already been fully developed.
On October 4, 2023, the Commission issued a second notice directing
the parties to brief: (i) which, if any, of the accused products
infringe claim 11 of the '404 patent under the Court's new construction
of ``movable barrier operator''; and (ii) whether the FID properly
finds that claim 11 is not patent-ineligible under 35 U.S.C. 101.
Comm'n Notice at 3 (Oct. 4, 2023). The Commission determined not to
reopen the evidentiary record. See id. The Commission also remanded the
investigation to the presiding ALJ for the sole purpose of determining
whether Chamberlain satisfied the DI economic prong for the '404
patent. In the original investigation, the Commission found no
infringement of the '404 patent and thus DI economic prong as to this
patent was not at issue when the ALJ issued the First RID. Id.; Remand
Order (Oct. 4, 2023) (``Second Remand Order''). The Commission also
determined to dismiss the infringement claim against the expired '052
patent and vacate all findings regarding that expired patent as moot.
Chamberlain and Nortek filed their initial responses to the
Commission's second notice on October 27, 2023, and their replies on
November 13, 2023.
On January 11, 2024, the presiding ALJ issued Order No. 46
directing the parties to provide additional or supplemental information
regarding the covered products allegedly protected by the '404 patent,
the extent to which the domestic investments relating to products
covered by the '223 patent were equally applicable to products covered
by the '404 patent, the domestic inventories of products covered by the
'404 patent, and other issues relating to the DI economic prong
analysis. Order No. 46 (Jan. 11, 2024). The parties filed their initial
responses to Order No. 46 on January 29, 2024, and their respective
replies on February 5, 2024.
On May 8, 2024, the ALJ issued the Second RID. Order No. 50 (May 8,
2024). The Second RID finds that Chamberlain has satisfied the DI
economic prong for the '404 patent under subsections 337(a)(3)(A), (B),
and (C). The Second RID notes that the Commission previously determined
that Chamberlain's domestic industry products (the `` '404 DI
Products'') practice the '404 patent, and thus finds that Chamberlain
has satisfied the DI technical prong for that patent. Although the
Commission did not ask the ALJ to make findings regarding infringement
or the DI technical prong, the Second RID finds that Nortek infringes
the '404 patent, and the same Nortek products that infringe the '404
patent also infringe the '223 patent.
On May 20, 2024, Nortek filed a petition for review of the Second
RID. On May 28, 2024, Chamberlain filed its opposition to Nortek's
petition for review.
Upon review of the evidence of record, the parties' submissions,
the final ID, the Second RID, and the Federal Circuit's decision on
appeal, the Commission has determined to review the Second RID.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States; and/or (2) cease and desist orders that could result
in the respondent(s) 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 (Dec. 1994).
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order and
cease and desist orders would have on: (1) the public health and
welfare, (2) competitive conditions in the U.S. economy, (3) U.S.
production of articles that are like or directly competitive with those
that are subject to investigation, and (4) U.S. consumers. The
Commission is therefore interested in receiving written submissions
that address the aforementioned public interest factors in the context
of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the
[[Page 54040]]
President, has 60 days to approve, disapprove, or take no action on the
Commission's determination. See Presidential Memorandum of July 21,
2005, 70 FR 43251 (July 26, 2005). During this period, the subject
articles would be entitled to enter the United States under bond, in an
amount determined by the Commission and prescribed by the Secretary of
the Treasury. The Commission is therefore interested in receiving
submissions concerning the amount of the bond that should be imposed if
a remedy is ordered.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should take into consideration the remedy
and bond previously issued in this investigation, the Commission's
Opinion of December 3, 2020, with respect to remedy, the public
interest, and bond, and the recommended determination on remedy and
bond issued by the presiding ALJ on November 25, 2019.
In its initial submission, Complainant is also requested to
identify the remedy sought and to submit proposed remedial orders for
the Commission's consideration. Complainant is further requested to
state the dates that the asserted patents expire, to provide the HTSUS
subheadings under which the accused products are imported, and to
supply the identification information for all known importers of the
products at issue in this investigation. The initial written
submissions and proposed remedial orders must be filed no later than
close of business on July 8, 2024. Reply submissions must be filed no
later than the close of business on July 15, 2024. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission. Opening submissions are limited to 15 pages. Reply
submissions are limited to 10 pages. No further submissions on any of
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-1118 (remand)) in a prominent
place on the cover page and/or the first page. (See Handbook for
Electronic Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary at (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. Any non-
party wishing to submit comments containing confidential information
must serve those comments on the parties to the investigation pursuant
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the
Commission and served on any parties to the investigation within two
business days of 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 June 24,
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.
Issued: June 25, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-14291 Filed 6-27-24; 8:45 am]
BILLING CODE 7020-02-P
