[Federal Register Volume 74, Number 29 (Friday, February 13, 2009)]
[Notices]
[Pages 7263-7264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3080]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-625]


 In the Matter of Certain Self-Cleaning Litter Boxes and 
Components Thereof; Notice of Commission Determination To Review a 
Final Initial Determination In Part; Grant a Motion To Strike; and Set 
a Schedule for Filing 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: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on December 1, 2008, in the above-captioned investigation, 
and has granted Complainants' motion to strike.

FOR FURTHER INFORMATION CONTACT: Mark B. Rees, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street, SW., 
Washington, DC 20436, telephone (202) 205-3116. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server at 
http://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.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 December 28, 2007, based on the complaint of Applica Consumer 
Products, Inc. of Miramar, Florida (``Applica'') and Waters Research 
Company of West Dundee, Illinois (``Waters''). 72 FR 73884 (Dec. 28, 
2007); 73 FR 13566 (Mar. 13, 2008). The complaint alleges violations of 
section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain self-
cleaning litter boxes and components thereof by reason of infringement 
of U.S. Patent No. RE36,847 (``the `847 patent''). The respondents are 
Lucky Litter, LLC of Chicago, Illinois (``Lucky Litter'') and OurPet's 
Company of Fairport Harbor, Ohio (``OurPet's'').
    On December 1, 2008, the ALJ issued his final ID, finding that a 
violation of section 337 has occurred in the importation, sale for 
importation, or sale after importation of certain self-cleaning litter 
boxes and components thereof by reason of infringement of claim 33 of 
the `847 patent. His final ID also included his recommendation on 
remedy and bonding. Respondents Lucky Litter and OurPet's, complainants 
Applica and Waters, and the Commission investigative attorney (``IA'') 
filed petitions (or contingent petitions) for review on December 16, 
2008. All parties filed responses to the petitions on December 24, 
2008. Complainants also filed a motion to strike on December 23, 2008, 
to which Lucky Litter and the IA filed oppositions on January 5, 2009.
    Having examined the record in this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the following issues: the 
construction of ``comb drive'' (asserted claims 8, 13, 31-33), ``comb 
drive means'' (asserted claims 27, 41-42), ``drive means'' (asserted 
claims 24-25), ``discharge position adjacent the discharge end wall'' 
(asserted claims 8, 13), ``comb * * * coupled to the comb drive'' 
(asserted claims 31-33), and ``mode selector switch * * * moveable 
between a manual operation position * * * and an automatic operation 
position'' (asserted claim 33); invalidity due to anticipation; 
invalidity due to obviousness; and direct and contributory 
infringement.
    On review, the Commission requests briefing on the above-listed 
issues based on the evidentiary record. The Commission is particularly 
interested in responses to the following questions:
    (1) Did the ALJ err in finding that the specification of the `847 
patent contains no disavowal that limits the claimed comb drive? If the 
patentee disavowed certain drives, what is the correct scope of the 
disavowal? Does it include, for example, worm drives of any 
configuration, or only the drive disclosed in the Carlisi prior art 
reference, which has a ``worm'' along the side of the litter box that 
turns and thereby drives the rake or comb on its path in the litter 
box?
    (2) What are the differences or similarities in the patent's use of 
``comb drive'' in asserted claim 8, ``comb drive means'' in asserted 
claim 27, and ``comb drive'' in asserted claim 33?
    (3) Is there a difference in function between the ``guide'' wheels 
and ``guide'' pins referenced in the specification in connection with 
figures 1-3 of the `847 patent and the ``drive'' wheels and ``drive'' 
pins referenced in claim 10?
    (4) What result should the Commission reach on infringement if it 
were to find that the `847 patent disavows all worm drives or that it 
disavows only the Carlisi drive?
    (5) What result should the Commission reach on infringement if it 
were to find that the synonyms for ``adjacent'' cited in the ID at 143-
44 incorrectly narrow the limitation ``discharge position adjacent the 
discharge end wall'' in asserted claim 8?
    (6) Is the limitation ``comb * * * coupled to the comb drive'' in 
asserted claims 31-33 met in OurPet's SmartScoop under a broader 
construction that includes, as Complainants argue, an ``indirect'' 
connection? Should the infringement analysis that follows from the 
correct construction of this limitation be different in claim 31 than 
it is in claim 33? Did the ID err in finding claim 33 infringed on the 
one hand and, on the other, that the same limitation is not met for 
purposes of claim 31?
    (7) How does a finding of disavowal of all worm drives, or the 
Carlisi drive, impact the consideration of obviousness under section 
103 and anticipation under section 102? Do the broader constructions of 
``discharge position adjacent the discharge end wall'' and ``comb * * * 
coupled to the comb

[[Page 7264]]

drive'' advocated by Complainants impact either validity analysis?
    (8) Did the ID err in finding that the Strickland prior art 
reference does not disclose a ``mode selector switch'' to one of 
ordinary skill in the art?
    (9) Please describe and analyze the intrinsic evidence of record 
that is pertinent to the construction of ``mode selector switch * * * 
moveable between a manual operation position * * * and an automatic 
operation position'' of claim 33. Please identify record evidence of 
whether each accused device contains a ``mode selector switch'' which 
is ``moveable between a manual operation position * * * and an 
automatic operation position.'' In addition, please address the 
relevance of Overhead Door Corp. v. Chamberlain Group, Inc., 194 F.3d 
1261 (Fed. Cir. 1999), to the claim construction, infringement and 
invalidity analyses of the ``mode selector switch'' limitation.
    The Commission has also granted Complainants' motion to strike the 
Declaration of Alan J. Cook that was submitted by Lucky Litter along 
with its petition for review. The declaration and its exhibits are not 
part of the record on violation in this investigation. References to 
such information in Lucky Litter's petition for review are also 
therefore stricken. This action is taken without prejudice to Lucky 
Litter submitting any information contained in the declaration and 
exhibits that is relevant to the remedy and bonding issues in this 
investigation at the appropriate time.
    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 one or more cease and desist orders that could result in 
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 are likely to do so. For 
background, see In the Matter of Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 
(Dec. 1994) (Commission Opinion).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or 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 President has 60 
days to approve or disapprove the Commission's action. 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.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review. The submissions 
should be concise and thoroughly referenced to the record in this 
investigation. 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 and bonding. Complainants and the Commission 
investigative attorney are also requested to submit proposed remedial 
orders for the Commission's consideration. Complainant is further 
requested to provide the expiration date of the `847 patent and state 
the HTSUS number under which the accused articles are imported. The 
written submissions and proposed remedial orders must be filed no later 
than the close of business on February 20, 2009. Reply submissions must 
be filed no later than the close of business on February 27, 2009. No 
further submissions on these issues will be permitted unless otherwise 
ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
(or portion thereof) to the Commission in confidence must request 
confidential treatment unless the information has already been granted 
such treatment during the proceedings. All such requests should be 
directed to the Secretary of the Commission and must include a full 
statement of the reasons why the Commission should grant such 
treatment. See section 201.6 of the Commission's Rules of Practice and 
Procedure, 19 CFR 201.6. Documents for which confidential treatment by 
the Commission is sought will be treated accordingly. All 
nonconfidential written submissions will be available for public 
inspection at the Office of the Secretary.
    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 sections 210.42-.46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-.46).

    Issued: February 9, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E9-3080 Filed 2-12-09; 8:45 am]
BILLING CODE 7020-02-P