[Federal Register Volume 74, Number 69 (Monday, April 13, 2009)]
[Notices]
[Pages 16892-16893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8315]


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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 Final Determination of 
Violation of Section 337; Issuance of Limited Exclusion Order and Cease 
and Desist Orders; Termination of Investigation

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 that there is a violation of section 337 of 
the Tariff Act of 1930, as amended (19 U.S.C. 1337) by respondents 
Lucky Litter, LLC of Chicago, Illinois and OurPet's Company of Fairport 
Harbor, Ohio in the above-captioned investigation. The Commission has 
issued a limited exclusion order, issued cease and desist orders 
against the two respondents, and terminated the investigation.

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 presiding administrative law judge 
(``ALJ'') issued his final initial determination (``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.
    The Commission determined to review certain issues of claim 
construction, as well as invalidity due

[[Page 16893]]

to anticipation, invalidity due to obviousness, and direct and 
contributory infringement on February 9, 2009. 74 FR 7263 (Feb. 13, 
2009). Per its notice, the Commission also determined to grant 
Complainants' motion to strike, and set a schedule for the filing of 
written submissions on the issues under review, including certain 
questions posed by the Commission, and on remedy, the public interest, 
and bonding. The parties have briefed, with initial and reply 
submissions, the issues under review and the issues of remedy, the 
public interest, and bonding.
    On review, the Commission has determined to (1) affirm the ALJ's 
construction of ``comb drive'' (asserted claims 8, 13, 31-33), ``comb 
drive means'' (asserted claims 27, 41-42), ``drive means'' (asserted 
claims 24-25), and ``mode selector switch * * * moveable between a 
manual operation position * * * and an automatic operation position'' 
(asserted claim 33); (2) modify the ALJ's construction of ``discharge 
position adjacent the discharge end wall'' (asserted claims 8, 13) to 
``not distant, nearby,'' thereby deleting the synonyms ``adjoining, 
continguous, abutting, and coterminus;'' and (3) construe ``coupled 
to'' in the limitation ``comb * * * coupled to the comb drive'' 
(asserted claims 31-33) as ``coupled or connected, directly or 
indirectly;'' (4) affirm the ALJ's finding of violation of Sec.  337 as 
to Respondent Lucky Litter; (5) affirm the ALJ's finding that the 
accused Lucky Litter products infringe claim 33 of the `847 patent; (6) 
affirm the ALJ's finding of violation of Sec.  337 as to Respondent 
OurPet's; (7) affirm the ALJ's finding that the accused OurPet's 
products infringe claim 33 of the `847 patent; (8) affirm the ALJ's 
finding that infringed claim 33 is not invalid due to anticipation or 
obviousness; and (9) affirm the ID on any other findings under review 
except insofar as they are inconsistent with the opinion of the 
Commission.
    The Commission determined that the appropriate form of relief in 
this investigation is (1) a limited exclusion order prohibiting the 
unlicensed entry of self-cleaning litter boxes and components thereof, 
including cartridges, covered by claim 33 of U.S. Patent No. Re. 36,847 
that are manufactured abroad by or on behalf of, or imported by or on 
behalf of, Lucky Litter and OurPet's; and (2) cease and desist orders 
against Lucky Litter and OurPet's.
    The Commission further determined that the public interest factors 
enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude 
issuance of the limited exclusion order. Finally, the Commission 
determined that the bond under the limited exclusion order during the 
Presidential review period shall be in the amount of 100 percent of the 
entered value of the imported articles. The Commission's orders were 
delivered to the President and the United States Trade Representative 
on the day of their issuance.
    The Commission has therefore terminated this investigation. 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 
sections 210.16(c) and 210.41-.42, 210.50 of the Commission's Rules of 
Practice and Procedure (19 CFR 210.16(c) and 210.41-.42, 210.50).

    Issued: April 8, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-8315 Filed 4-10-09; 8:45 am]
BILLING CODE 7020-02-P