Certain Vaporizer Devices, Cartridges Used Therewith, and Components Thereof; [Revised] Notice of Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 89041-89044 [2024-26161]
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Federal Register / Vol. 89, No. 218 / Tuesday, November 12, 2024 / Notices
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Commission did not find any other
circumstances that would warrant
conducting a full review.1 Accordingly,
the Commission determined that it
would conduct an expedited review
pursuant to section 751(c)(3) of the Act
(19 U.S.C. 1675(c)(3)).2
For further information concerning
the conduct of this review and rules of
general application, consult the
Commission’s Rules of Practice and
Procedure, part 201, subparts A and B
(19 CFR part 201), and part 207,
subparts A, D, E, and F (19 CFR part
207).
Staff report.—A staff report
containing information concerning the
subject matter of the review has been
placed in the nonpublic record, and will
be made available to persons on the
Administrative Protective Order service
list for this review on December 23,
2024. A public version will be issued
thereafter, pursuant to § 207.62(d)(4) of
the Commission’s rules.
Written submissions.—As provided in
§ 207.62(d) of the Commission’s rules,
interested parties that are parties to the
review and that have provided
individually adequate responses to the
notice of institution,3 and any party
other than an interested party to the
review may file written comments with
the Secretary on what determination the
Commission should reach in the review.
Comments are due on or before January
2, 2025 and may not contain new factual
information. Any person that is neither
a party to the five-year review nor an
interested party may submit a brief
written statement (which shall not
contain any new factual information)
pertinent to the review by January 2,
2025. However, should the Department
of Commerce (‘‘Commerce’’) extend the
time limit for its completion of the final
results of its review, the deadline for
comments (which may not contain new
factual information) on Commerce’s
final results is three business days after
the issuance of Commerce’s results. If
comments contain business proprietary
information (BPI), they must conform
with the requirements of §§ 201.6,
207.3, and 207.7 of the Commission’s
rules. The Commission’s Handbook on
Filing Procedures, available on the
Commission’s website at https://
1 A record of the Commissioners’ votes, the
Commission’s statement on adequacy, and any
individual Commissioner’s statements will be
available from the Office of the Secretary and at the
Commission’s website.
2 Commissioner David S. Johanson voted to
conduct a full review.
3 The Commission has found the response
submitted on behalf of M&B Metal Products
Company, Inc. to be individually adequate.
Comments from other interested parties will not be
accepted (see 19 CFR 207.62(d)(2)).
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www.usitc.gov/documents/handbook_
on_filing_procedures.pdf, elaborates
upon the Commission’s procedures with
respect to filings.
In accordance with §§ 201.16(c) and
207.3 of the rules, each document filed
by a party to the review must be served
on all other parties to the review (as
identified by either the public or BPI
service list), and a certificate of service
must be timely filed. The Secretary will
not accept a document for filing without
a certificate of service.
Determination.—The Commission has
determined this review is
extraordinarily complicated and
therefore has determined to exercise its
authority to extend the review period by
up to 90 days pursuant to 19 U.S.C.
1675(c)(5)(B).
Authority: This review is being
conducted under authority of title VII of
the Act; this notice is published
pursuant to § 207.62 of the
Commission’s rules.
By order of the Commission.
Issued: November 5, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024–26117 Filed 11–8–24; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1368]
Certain Vaporizer Devices, Cartridges
Used Therewith, and Components
Thereof; [Revised] Notice of
Commission Determination To Review
in Part a Final Initial Determination
Finding a Violation of Section 337;
Request for Written Submissions on
the Issues Under Review and on
Remedy, the Public Interest, and
Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
The Commission has
determined to review in part a final
initial determination (‘‘ID’’) issued by
the presiding administrative law judge
(‘‘ALJ’’) in the above-captioned
investigation finding a violation of
section 337. The Commission requests
written submissions from the parties on
the issues under review and
submissions from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding under the
schedule set forth below.
FOR FURTHER INFORMATION CONTACT:
Richard P. Hadorn, Esq., Office of the
SUMMARY:
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89041
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3179. 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, telephone
(202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on August 7, 2023, based on a complaint
filed by JUUL Labs, Inc. of Washington,
DC and VMR Products LLC of San
Francisco, California (together, ‘‘JLI’’).
88 FR 52207 (Aug. 7, 2023). The
complaint, as supplemented, alleges
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337
(‘‘section 337’’), based on the
importation into the United States, the
sale for importation, and/or the sale
within the United States after
importation of certain vaporizer devices,
cartridges used therewith, and
components thereof by reason of
infringement of certain claims of U.S.
Patent Nos. RE49,114 (‘‘the ’114
patent’’), 10,130,123 (‘‘the ’123 patent’’),
10,709,173 (‘‘the ’173 patent’’),
11,134,722 (‘‘the ’722 patent’’), and
11,606,981 (‘‘the ’981 patent’’). Id. The
complaint further alleges that a
domestic industry (‘‘DI’’) exists. Id. The
notice of investigation names five
respondents: (1) NJOY, LLC of Phoenix,
Arizona; (2) NJOY Holdings, Inc. of
Scottsdale, Arizona; (3) Altria Group,
Inc. of Richmond, Virginia; (4) Altria
Group Distribution Company of
Richmond, Virginia; and (5) Altria
Client Services LLC of Richmond,
Virginia (collectively, ‘‘NJOY’’). Id. The
Office of Unfair Import Investigations
(‘‘OUII’’) is also named as a party. Id.
The Commission also directed the ALJ
to take evidence on and provide factual
findings and a recommended
determination concerning the public
interest. Id.
On April 3, 2024, the Commission
terminated the investigation as to the
following asserted claims based on
partial withdrawal of the complaint: (i)
claims 1, 5–7, 29, 30, 36, 80, 89, and 93
of the ’114 patent; (ii) claims 16, 18, 29,
and 31 of the ’123 patent; (iii) claims 3,
8, 14, and 17 of the ’722 patent; and (iv)
claims 6, 9–11, 17, and 18 of the ’981
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patent. Order No. 18 (Mar. 6, 2024),
unreviewed by Comm’n Notice (Apr. 3,
2024).
On April 26, 2024, the Commission
terminated the investigation as to the
following asserted claims based on
partial withdrawal of the complaint: (i)
claims 43, 44, 76, 77, 81, and 86 (all
remaining claims) of the ’114 patent,
thus terminating the ’114 patent in its
entirety; (ii) claim 14 of the ’123 patent;
(iii) claims 2, 3, 6, 7, 15, 16, 18–25, 28,
and 30 of the ’173 patent; (iv) claims 5,
7, 9–13, 16, and 18–21 of the ’722
patent; and (v) claims 2, 5, and 13–16
of the ’981 patent. Order No. 21 (Apr.
2, 2024), unreviewed by Comm’n Notice
(Apr. 26, 2024).
On June 18, 2024, the Commission
affirmed an initial determination
granting summary determination that
JLI has satisfied the economic prong of
the DI requirement as to the remaining
asserted patents, i.e., the ’123, ’173,
’722, and ’981 patents. Order No. 22
(Apr. 3, 2024), aff’d by Comm’n Notice
(June 20, 2024).
On August 23, 2024, the ALJ issued
the final ID, which finds a violation of
section 337 as to claims 27 and 32 of the
’123 patent, claims 1 and 4 of the ’173
patent, claims 1 and 15 of the ’722
patent, and claims 1 and 8 of the ’981
patent. The ID also includes the ALJ’s
recommended determination (‘‘RD’’) on
remedy, the public interest, and
bonding. The RD recommends that,
should the Commission determine that
a violation of section 337 has occurred,
the Commission should: (i) issue a
limited exclusion order against NJOY’s
infringing products; (ii) issue cease and
desist orders against each of the NJOY
respondents; and (iii) impose no bond (0
percent bond) for importations of
infringing products during the period of
Presidential review. The ALJ also found
that the statutory public interest factors
do not support denying or delaying the
recommended relief set forth in the RD.
On September 6, 2024, NJOY filed a
petition seeking review of certain
findings in the ID, including (i) claim
construction and infringement of the
asserted claims of the ’722 and ’981
patents, (ii) claim construction,
infringement, the technical and
economic prongs of the DI requirement,
and validity of the asserted claims of the
’123 patent, and (iii) claim construction,
infringement, and the technical prong of
the DI requirement of the asserted
claims of the ’173 patent. That same
day, JLI filed a contingent petition
seeking review of certain of the ID’s
findings concerning (i) claim
construction, infringement, and validity
of the ’722 and ’981 patents, (ii) the
technical prong of the DI requirement
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16:35 Nov 08, 2024
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and validity of the ’123 patent, and (iii)
validity of the ’173 patent. On
September 16, 2024, JLI and NJOY each
filed a response opposing the other’s
petition. That same day, OUII filed a
response addressing both petitions.
On September 23, 2024, NJOY filed a
motion for leave to file a reply in
support of its petition for review,
addressing certain positions taken by
OUII in its response to NJOY’s petition.
On September 25 and 27, 2024, OUII
and JLI, respectively, filed a response
opposing NJOY’s motion for leave.
On September 24, 2024, JLI and NJOY
each filed a submission on the public
interest pursuant to Commission Rule
210.50(a)(4) (19 CFR 210.50(a)(4)). The
Commission did not receive any
submissions on the public interest from
members of the public or interested
government agencies in response to the
Commission’s Federal Register notice.
See 89 FR 70668–69 (Aug. 30, 2024).
Having reviewed the record of the
investigation, including the final ID, the
parties’ submissions to the ALJ, the
petitions and the responses thereto, and
NJOY’s motion for leave and the
responses thereto, the Commission has
determined to review the ID in part.
Specifically, the Commission has
determined to review the ID’s
construction of the ‘‘pressure sensor’’
limitations (limitations 27[d] and 27[e])
recited in claim 27 of the ’123 patent.
The Commission has also determined to
review the ID’s findings that the NJOY
ACE accused product, the asserted [ ]
and JAGWAR iterations of the JUUL DI
system, and the asserted JUUL2 DI
system literally practice limitations
27[d] and 27[e] of claim 27 of the ’123
patent under the ID’s construction of
those limitations.
The Commission has further
determined to review certain of the ID’s
findings regarding claim construction
and satisfaction of the technical prong
of the DI requirement with respect to the
’173 patent. In particular, the
Commission has determined to review
the ID’s construction of the claim terms
‘‘mouthpiece’’ and ‘‘disposed within’’
recited in the asserted claims 1 and 4 of
the ’173 patent. The Commission has
further determined to review the ID’s
finding that the JUUL2 DI system
practices claims 1 and 4 of the ’173
patent.
In view of the parties’ submissions
and the issues raised with regard to
satisfaction of the technical prong of the
DI requirement, the Commission has
further determined to reconsider its
previous finding that JLI has satisfied
the economic prong of the DI
requirement with respect to the ’123
patent and the ’173 patent based on
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investments related to both the JUUL DI
system and the JUUL2 DI system. 19
CFR 210.47, .48.
The Commission has determined not
to review the remaining findings in the
ID, including the ID’s findings of a
violation of section 337 as to the ’722
and ’981 patents. The Commission has
further determined to deny NJOY’s
motion for leave to file a reply in
support of its petition for review.
In connection with its review, the
Commission requests responses to the
following questions. The parties are
requested to brief their positions with
reference to the applicable law and the
existing evidentiary record.
(1) Please explain whether the final ID
correctly finds that ‘‘JLI does not rely on the
[ ] iteration as a domestic industry
product.’’ ID at 123 (citing Case Management
Conf. Tr. at 8:16–24 (April 26, 2024) (EDIS
Doc. ID 820002)). To the extent it is argued
that the final ID errs in this finding and JLI
asserted the [ ] iteration of the JUUL system
to satisfy the technical prong of the domestic
industry requirement with respect to the ’123
patent, please identify where in the record
JLI timely preserved this contention so as to
avoid a finding of waiver.
(2) Did JLI explicitly or implicitly waive its
right to rely on the [ ] iteration of the JUUL
system to satisfy the DI requirement with
respect to the ’123 patent?
(3) Can OUII, as a party to the
investigation, assert that the [ ] iteration of
the JUUL system satisfies the DI requirement
with respect to the ’123 patent where the
complainant did not allege that this product
satisfies that requirement? See John
Mezzalingua Assocs., Inc. v. ITC, 660 F.3d
1322, 1331 (Fed. Cir. 2011); but see Certain
Liquid Transfer Devices with an Integral Vial
Adapter, Inv. No. 337–TA–1362, Comm’n
Op. at 16–19 (July 26, 2024) (recognizing that
OUII should have been allowed to raise an
invalidity argument that was waived by
respondents).
(4) Do the asserted JAGWAR iteration of
the JUUL DI system and the asserted JUUL2
DI system practice (literally and/or under the
doctrine of equivalents) limitations 27[d] and
27[e] of claim 27 of the ’123 patent under a
construction of those limitations requiring at
least one ‘‘pressure sensor’’ that has both ‘‘a
first side . . . exposed to a sealed air flow
path’’ and ‘‘a second side . . . exposed to a
device air path open to ambient pressure.’’
(5) Assuming that only the JAGWAR
iteration of the JUUL DI system and the
JUUL2 DI system can be relied upon to
satisfy the technical prong of the DI
requirement, is there any need to further
consider the allocation of investments related
to the economic prong findings as to the ’123
patent in Order 22? In responding to this
question, please address the ALJ’s finding in
Order 26 that JLI ‘‘did not rely on its [ ]
JUUL System for economic domestic industry
for the ’123 patent’’ (Order 26 at 1) and the
statement in NJOY’s petition for review that
it had not opposed the summary
determination that JLI has satisfied the
economic prong of the domestic industry
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requirement ‘‘based on the understanding
that JUUL Jagwar and JUUL 2 were the only
domestic industry products for the ’123
Patent.’’ NJOY Pet. at 29.
(6) Assuming that only the JAGWAR
iteration of the JUUL DI system and the
JUUL2 DI system can be relied upon to
satisfy the technical prong of the DI
requirement, does the record in this
investigation support an allocation of JLI’s
investments to only one or both those DI
products?
(7) Please confirm that the investments
asserted by JLI as to the ‘‘JUUL system’’
regarding the ’123 patent in Order 22 do not
include investments relating to [ ]. If [ ]
investments are included, what are the
amounts specific only to JAGWAR and to
JUUL2? Are these revised investments in
JAGWAR and JUUL2 regarding the ’123
patent significant under section 337(a)(3) (A)
and (B)?
(8) Please comment on whether remand is
necessary to determine whether the domestic
industry requirement is satisfied as to the
’123 patent.
The parties are invited to brief only
the discrete issues requested above. The
parties are not to brief other issues on
review, which are adequately presented
in the parties’ existing filings.
In connection with the final
disposition of this investigation, the
statute authorizes issuance of, inter alia,
(1) an exclusion order that could result
in the exclusion of the subject articles
from entry into the United States; and/
or (2) cease and desist orders that could
result in the respondents being required
to cease and desist from engaging in
unfair acts in the importation and sale
of such articles. Accordingly, the
Commission is interested in receiving
written submissions that address the
form of remedy, if any, that should be
ordered. If a party seeks exclusion of an
article from entry into the United States
for purposes other than entry for
consumption, the party should so
indicate and provide information
establishing that activities involving
other types of entry either are adversely
affecting it or 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
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16:35 Nov 08, 2024
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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 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: The parties to
the investigation are requested to file
written submissions on the issues
identified in this notice. Parties to the
investigation, interested government
agencies, and any other interested
parties are encouraged to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
submissions should address the
recommended determination by the ALJ
on remedy, the public interest, and
bonding.
In its initial written submission, JLI is
also requested to identify the remedy
sought and to submit proposed remedial
orders for the Commission’s
consideration. JLI 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. In its written
submission, OUII is also requested to
submit proposed remedial orders for the
Commission’s consideration.
The initial written submissions and
proposed remedial orders from the
parties must be filed no later than the
close of business on November 7, 2024.
Reply submissions from the parties
must be filed no later than the close of
business on November 14, 2024. Initial
written submissions from interested
government agencies, and any other
interested parties must be filed no later
than the close of business on November
20, 2024. Reply submissions from the
interested government agencies, and any
other interested parties must be filed no
later than the close of business on
November 27, 2024. Opening
submissions are limited to 60 pages.
Reply submissions are limited to 40
pages. No further submissions on any of
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89043
these issues will be permitted unless
otherwise ordered by the Commission.
Persons filing written submissions
must file the original document
electronically on or before the deadlines
stated above. The Commission’s paper
filing requirements in 19 CFR 210.4(f)
are currently waived. 85 FR 15798 (Mar.
19, 2020). Submissions should refer to
the investigation number (Inv. No. 337–
TA–1368) 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. 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 October 24,
2024.
The authority for the Commission’s
determination is contained in section
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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: November 6, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024–26161 Filed 11–8–24; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
[OMB Number 1123–0NEW]
Agency Information Collection
Activities; Proposed eCollection
eComments Requested; New
Collection; Title—COP Community
Policing Advancement Performance
Report
Office of Community Oriented
Policing Services, Department of Justice.
ACTION: 60-Day notice.
AGENCY:
The Office of Community
Oriented Policing Services, Department
of Justice (DOJ), will be submitting the
following information collection request
to the Office of Management and Budget
(OMB) for review and approval in
accordance with the Paperwork
Reduction Act of 1995.
DATES: Comments are encouraged and
will be accepted for 60 days until
January 13, 2025.
FOR FURTHER INFORMATION CONTACT: If
you have additional comments
especially on the estimated public
SUMMARY:
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Dave Neely, Department of Justice
Office of Community Oriented Policing
Services, 145 N St. NW, Washington, DC
20530, -1584 -avid.neely2@usdoj.gov
(202) 514–8553.
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
are encouraged. Your comments should
address one or more of the following
four points:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the Bureau of Justice
Statistics, including whether the
information will have practical utility;
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
—Evaluate whether and if so how the
quality, utility, and clarity of the
information to be collected can be
enhanced; and
—Minimize the burden of the collection
of information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
permitting electronic submission of
responses.
Abstract: Under the Gambling Devices
Act of 1962 (15 U.S.C. 1171–1178)
mandates that the Department of Justice
register all entities that participate in
the interstate commerce of gambling
devices. Registration involves the
collection of certain information from
the respondent, as specified in the Act.
Overview of This Information
Collection
1. Type of Information Collection:
New collection.
2. The Title of the Form/Collection:
COPS Community Policing
Advancement Performance Report.
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
None. U.S. Department of Justice Office
of Community Oriented Policing
Services.
4. Affected public who will be asked
or required to respond, as well as the
obligation to respond: Affected Public
Primary: Law enforcement agencies and
other public and private entities that
respond to a bi-annual performance
report.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: It is estimated that 430
respondents will complete the form on
a bi-annual basis taking an estimated 20
minutes per report twice a year.
6. An estimate of the total annual
burden (in hours) associated with the
collection: There are an estimated 287
total annual burden hours associated
with this collection.
TOTAL BURDEN HOURS
Number of
respondents
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Activity
Frequency
(biannual)
Total
annual
responses
Time per
response
(mins)
Total
annual
burden
(hours)
Form .......................................................................................................
430
2
430
20
287
Unduplicated Totals ........................................................................
430
2
430
20
287
If additional information is required
contact: Darwin Arceo, Department
Clearance Officer, United States
Department of Justice, Justice
Management Division, Policy and
Planning Staff, Two Constitution
Square, 145 N Street NE, 4W–218,
Washington, DC.
Dated: November 6, 2024.
Darwin Arceo,
Department Clearance Officer for PRA, U.S.
Department of Justice.
[FR Doc. 2024–26133 Filed 11–8–24; 8:45 am]
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[Federal Register Volume 89, Number 218 (Tuesday, November 12, 2024)]
[Notices]
[Pages 89041-89044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26161]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1368]
Certain Vaporizer Devices, Cartridges Used Therewith, and
Components Thereof; [Revised] Notice of Commission Determination To
Review in Part a Final Initial Determination Finding a Violation of
Section 337; Request for Written Submissions on the Issues Under Review
and on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: The Commission has determined to review in part a final
initial determination (``ID'') issued by the presiding administrative
law judge (``ALJ'') in the above-captioned investigation finding a
violation of section 337. The Commission requests written submissions
from the parties on the issues under review and submissions from the
parties, interested government agencies, and interested persons on the
issues of remedy, the public interest, and bonding under the schedule
set forth below.
FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3179. 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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on August 7, 2023, based on a complaint filed by JUUL Labs, Inc. of
Washington, DC and VMR Products LLC of San Francisco, California
(together, ``JLI''). 88 FR 52207 (Aug. 7, 2023). The complaint, as
supplemented, alleges violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on the
importation into the United States, the sale for importation, and/or
the sale within the United States after importation of certain
vaporizer devices, cartridges used therewith, and components thereof by
reason of infringement of certain claims of U.S. Patent Nos. RE49,114
(``the '114 patent''), 10,130,123 (``the '123 patent''), 10,709,173
(``the '173 patent''), 11,134,722 (``the '722 patent''), and 11,606,981
(``the '981 patent''). Id. The complaint further alleges that a
domestic industry (``DI'') exists. Id. The notice of investigation
names five respondents: (1) NJOY, LLC of Phoenix, Arizona; (2) NJOY
Holdings, Inc. of Scottsdale, Arizona; (3) Altria Group, Inc. of
Richmond, Virginia; (4) Altria Group Distribution Company of Richmond,
Virginia; and (5) Altria Client Services LLC of Richmond, Virginia
(collectively, ``NJOY''). Id. The Office of Unfair Import
Investigations (``OUII'') is also named as a party. Id. The Commission
also directed the ALJ to take evidence on and provide factual findings
and a recommended determination concerning the public interest. Id.
On April 3, 2024, the Commission terminated the investigation as to
the following asserted claims based on partial withdrawal of the
complaint: (i) claims 1, 5-7, 29, 30, 36, 80, 89, and 93 of the '114
patent; (ii) claims 16, 18, 29, and 31 of the '123 patent; (iii) claims
3, 8, 14, and 17 of the '722 patent; and (iv) claims 6, 9-11, 17, and
18 of the '981
[[Page 89042]]
patent. Order No. 18 (Mar. 6, 2024), unreviewed by Comm'n Notice (Apr.
3, 2024).
On April 26, 2024, the Commission terminated the investigation as
to the following asserted claims based on partial withdrawal of the
complaint: (i) claims 43, 44, 76, 77, 81, and 86 (all remaining claims)
of the '114 patent, thus terminating the '114 patent in its entirety;
(ii) claim 14 of the '123 patent; (iii) claims 2, 3, 6, 7, 15, 16, 18-
25, 28, and 30 of the '173 patent; (iv) claims 5, 7, 9-13, 16, and 18-
21 of the '722 patent; and (v) claims 2, 5, and 13-16 of the '981
patent. Order No. 21 (Apr. 2, 2024), unreviewed by Comm'n Notice (Apr.
26, 2024).
On June 18, 2024, the Commission affirmed an initial determination
granting summary determination that JLI has satisfied the economic
prong of the DI requirement as to the remaining asserted patents, i.e.,
the '123, '173, '722, and '981 patents. Order No. 22 (Apr. 3, 2024),
aff'd by Comm'n Notice (June 20, 2024).
On August 23, 2024, the ALJ issued the final ID, which finds a
violation of section 337 as to claims 27 and 32 of the '123 patent,
claims 1 and 4 of the '173 patent, claims 1 and 15 of the '722 patent,
and claims 1 and 8 of the '981 patent. The ID also includes the ALJ's
recommended determination (``RD'') on remedy, the public interest, and
bonding. The RD recommends that, should the Commission determine that a
violation of section 337 has occurred, the Commission should: (i) issue
a limited exclusion order against NJOY's infringing products; (ii)
issue cease and desist orders against each of the NJOY respondents; and
(iii) impose no bond (0 percent bond) for importations of infringing
products during the period of Presidential review. The ALJ also found
that the statutory public interest factors do not support denying or
delaying the recommended relief set forth in the RD.
On September 6, 2024, NJOY filed a petition seeking review of
certain findings in the ID, including (i) claim construction and
infringement of the asserted claims of the '722 and '981 patents, (ii)
claim construction, infringement, the technical and economic prongs of
the DI requirement, and validity of the asserted claims of the '123
patent, and (iii) claim construction, infringement, and the technical
prong of the DI requirement of the asserted claims of the '173 patent.
That same day, JLI filed a contingent petition seeking review of
certain of the ID's findings concerning (i) claim construction,
infringement, and validity of the '722 and '981 patents, (ii) the
technical prong of the DI requirement and validity of the '123 patent,
and (iii) validity of the '173 patent. On September 16, 2024, JLI and
NJOY each filed a response opposing the other's petition. That same
day, OUII filed a response addressing both petitions.
On September 23, 2024, NJOY filed a motion for leave to file a
reply in support of its petition for review, addressing certain
positions taken by OUII in its response to NJOY's petition. On
September 25 and 27, 2024, OUII and JLI, respectively, filed a response
opposing NJOY's motion for leave.
On September 24, 2024, JLI and NJOY each filed a submission on the
public interest pursuant to Commission Rule 210.50(a)(4) (19 CFR
210.50(a)(4)). The Commission did not receive any submissions on the
public interest from members of the public or interested government
agencies in response to the Commission's Federal Register notice. See
89 FR 70668-69 (Aug. 30, 2024).
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, the petitions and the
responses thereto, and NJOY's motion for leave and the responses
thereto, the Commission has determined to review the ID in part.
Specifically, the Commission has determined to review the ID's
construction of the ``pressure sensor'' limitations (limitations 27[d]
and 27[e]) recited in claim 27 of the '123 patent. The Commission has
also determined to review the ID's findings that the NJOY ACE accused
product, the asserted [ ] and JAGWAR iterations of the JUUL DI system,
and the asserted JUUL2 DI system literally practice limitations 27[d]
and 27[e] of claim 27 of the '123 patent under the ID's construction of
those limitations.
The Commission has further determined to review certain of the ID's
findings regarding claim construction and satisfaction of the technical
prong of the DI requirement with respect to the '173 patent. In
particular, the Commission has determined to review the ID's
construction of the claim terms ``mouthpiece'' and ``disposed within''
recited in the asserted claims 1 and 4 of the '173 patent. The
Commission has further determined to review the ID's finding that the
JUUL2 DI system practices claims 1 and 4 of the '173 patent.
In view of the parties' submissions and the issues raised with
regard to satisfaction of the technical prong of the DI requirement,
the Commission has further determined to reconsider its previous
finding that JLI has satisfied the economic prong of the DI requirement
with respect to the '123 patent and the '173 patent based on
investments related to both the JUUL DI system and the JUUL2 DI system.
19 CFR 210.47, .48.
The Commission has determined not to review the remaining findings
in the ID, including the ID's findings of a violation of section 337 as
to the '722 and '981 patents. The Commission has further determined to
deny NJOY's motion for leave to file a reply in support of its petition
for review.
In connection with its review, the Commission requests responses to
the following questions. The parties are requested to brief their
positions with reference to the applicable law and the existing
evidentiary record.
(1) Please explain whether the final ID correctly finds that
``JLI does not rely on the [ ] iteration as a domestic industry
product.'' ID at 123 (citing Case Management Conf. Tr. at 8:16-24
(April 26, 2024) (EDIS Doc. ID 820002)). To the extent it is argued
that the final ID errs in this finding and JLI asserted the [ ]
iteration of the JUUL system to satisfy the technical prong of the
domestic industry requirement with respect to the '123 patent,
please identify where in the record JLI timely preserved this
contention so as to avoid a finding of waiver.
(2) Did JLI explicitly or implicitly waive its right to rely on
the [ ] iteration of the JUUL system to satisfy the DI requirement
with respect to the '123 patent?
(3) Can OUII, as a party to the investigation, assert that the [
] iteration of the JUUL system satisfies the DI requirement with
respect to the '123 patent where the complainant did not allege that
this product satisfies that requirement? See John Mezzalingua
Assocs., Inc. v. ITC, 660 F.3d 1322, 1331 (Fed. Cir. 2011); but see
Certain Liquid Transfer Devices with an Integral Vial Adapter, Inv.
No. 337-TA-1362, Comm'n Op. at 16-19 (July 26, 2024) (recognizing
that OUII should have been allowed to raise an invalidity argument
that was waived by respondents).
(4) Do the asserted JAGWAR iteration of the JUUL DI system and
the asserted JUUL2 DI system practice (literally and/or under the
doctrine of equivalents) limitations 27[d] and 27[e] of claim 27 of
the '123 patent under a construction of those limitations requiring
at least one ``pressure sensor'' that has both ``a first side . . .
exposed to a sealed air flow path'' and ``a second side . . .
exposed to a device air path open to ambient pressure.''
(5) Assuming that only the JAGWAR iteration of the JUUL DI
system and the JUUL2 DI system can be relied upon to satisfy the
technical prong of the DI requirement, is there any need to further
consider the allocation of investments related to the economic prong
findings as to the '123 patent in Order 22? In responding to this
question, please address the ALJ's finding in Order 26 that JLI
``did not rely on its [ ] JUUL System for economic domestic industry
for the '123 patent'' (Order 26 at 1) and the statement in NJOY's
petition for review that it had not opposed the summary
determination that JLI has satisfied the economic prong of the
domestic industry
[[Page 89043]]
requirement ``based on the understanding that JUUL Jagwar and JUUL 2
were the only domestic industry products for the '123 Patent.'' NJOY
Pet. at 29.
(6) Assuming that only the JAGWAR iteration of the JUUL DI
system and the JUUL2 DI system can be relied upon to satisfy the
technical prong of the DI requirement, does the record in this
investigation support an allocation of JLI's investments to only one
or both those DI products?
(7) Please confirm that the investments asserted by JLI as to
the ``JUUL system'' regarding the '123 patent in Order 22 do not
include investments relating to [ ]. If [ ] investments are
included, what are the amounts specific only to JAGWAR and to JUUL2?
Are these revised investments in JAGWAR and JUUL2 regarding the '123
patent significant under section 337(a)(3) (A) and (B)?
(8) Please comment on whether remand is necessary to determine
whether the domestic industry requirement is satisfied as to the
'123 patent.
The parties are invited to brief only the discrete issues requested
above. The parties are not to brief other issues on review, which are
adequately presented in the parties' existing filings.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States; and/or (2) cease and desist orders that could result
in the respondents being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or 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 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: The parties to the investigation are requested
to file written submissions on the issues identified in this notice.
Parties to the investigation, interested government agencies, and any
other interested parties are encouraged to file written submissions on
the issues of remedy, the public interest, and bonding. Such
submissions should address the recommended determination by the ALJ on
remedy, the public interest, and bonding.
In its initial written submission, JLI is also requested to
identify the remedy sought and to submit proposed remedial orders for
the Commission's consideration. JLI 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. In its written submission,
OUII is also requested to submit proposed remedial orders for the
Commission's consideration.
The initial written submissions and proposed remedial orders from
the parties must be filed no later than the close of business on
November 7, 2024. Reply submissions from the parties must be filed no
later than the close of business on November 14, 2024. Initial written
submissions from interested government agencies, and any other
interested parties must be filed no later than the close of business on
November 20, 2024. Reply submissions from the interested government
agencies, and any other interested parties must be filed no later than
the close of business on November 27, 2024. Opening submissions are
limited to 60 pages. Reply submissions are limited to 40 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 (Mar. 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1368) 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. 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 October
24, 2024.
The authority for the Commission's determination is contained in
section
[[Page 89044]]
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: November 6, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-26161 Filed 11-8-24; 8:45 am]
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