[Federal Register Volume 77, Number 215 (Tuesday, November 6, 2012)]
[Notices]
[Pages 66632-66633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26995]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-780]


Certain Protective Cases and Components Thereof; Notice of the 
Commission's Final Determination; Issuance of a General Exclusion Order 
and Cease and Desist Orders; Termination of the 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 found a violation of section 337 in this investigation 
and has (1) issued a general exclusion order prohibiting importation of 
infringing protective cases and components thereof and (2) issued cease 
and desist orders direct to domestic respondents.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3042. 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 June 30, 2011, based on a complaint filed by Otter Products, LLC of 
Fort Collins, Colorado (``Otter''). 76 FR 38417 (June 30, 2011). The 
complaint alleged 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 protective cases and components thereof by 
reason of infringement of some or all of the claims of United States 
Patent Nos. D600,908 (``the D908 patent''); D617,784 (``the D784 
patent''); D615,536 (``the D536 patent''); D617,785 (``the D785 
patent''); D634,741 (``the D741 patent''); D636,386 (``the D386 
patent''); and claims 1, 5-7, 13, 15, 17, 19-21, 23, 25, 27, 28, 30-32, 
37, 38, 42, and 44 of United States Patent No. 7,933,122 (``the '122 
patent''); and United States Trademark Registration Nos. 3,788,534; 
3,788,535; 3,623,789; and 3,795,187. Id. The notice of investigation 
named the following respondents: A.G. Findings and Mfg. Co., Inc. of 
Sunrise, Florida (``A.G. Findings''); AFC Trident Inc. of Chino, 
California (``AFC Trident''); Alibaba.com Hong Kong Ltd. of Hangzhou, 
China (``Alibaba.com''); Anbess Electronics Co. Ltd. of Schenzhen, 
China (``Anbess''); Cellairis Franchise, Inc. of Alpharetta, Georgia 
(``Cellairis''); Cellet Products of Sante Fe Springs, California 
(``Cellet''); DHgate.com of Beijing, China (``Dhgate.com''); Griffin 
Technology, Inc. of Nashville, Tennessee (``Griffin''); Guangzhou 
Evotech Industry Co., Ltd. of Guangdong, China (``Guangzhou Evotech''); 
Hard Candy Cases LLC of Sacramento, California (``Hard Candy''); Hoffco 
Brands, Inc. of Wheat Ridge, Colorado (``Hoffco''); Hong Kong Better 
Technology Group Ltd. of Shenzhen, China (``Better Technology Group''); 
Hong Kong HJJ Co. Ltd. of Shenzhen, China (``HJJ''); Hypercel 
Corporation of Valencia, California (``Hypercel''); InMotion 
Entertainment of Jacksonville, Florida (``InMotion''); MegaWatts 
Computers, LLC of Tulsa, Oklahoma (``MegaWatts''); National Cellular of 
Brooklyn, New York (``National Cellular''); OEMBargain.com of Wantagh, 
New York (``OEMBargain.com''; One Step Up Ltd. of New York, New York 
(``One Step Up''); Papaya Holdings Ltd. of Central, Hong Kong 
(``Papaya''); Quanyun Electronics Co., Ltd. of Shenzhen, China 
(``Quanyun''); ShenZhen Star & Way Trade Co., Ltd. of Guangzhou City, 
China (``Star & Way''); Sinatech Industries Co., Ltd. of Guangzhou 
City, China (``Sinatech''); SmileCase of Windsor Mill, Maryland 
(``SmileCase''); Suntel Global Investment Ltd. of Guangzhou, China 
(``Suntel''); TheCaseInPoint.com of Titusville, Florida 
(``TheCaseInPoint''); TheCaseSpace of Fort Collins, Colorado 
(``TheCaseSpace''); Topter Technology Co., Ltd. of Guangdong, China 
(``Topter''); and Trait Technology (Shenzhen) Co., Ltd. of Shenzhen, 
China (``Trait Technology''). Id. With respect to accused products by 
Respondent Griffin, Otter asserted only the '122 patent.
    On August 3, 2011, the ALJ issued an ID granting Otter leave to 
amend the complaint and notice of investigation to add Global Cellular, 
Inc. of Alpharetta, Georgia (``Global Cellular'') as a respondent. See 
Order No. 3 (August 3, 2011). The Commission determined not to review 
the order. See Notice of Commission Determination not to Review an 
Initial Determination Granting Complainant's Motion to Amend the 
Complaint and Notice of Investigation to Add a Respondent (August 18, 
2011).
    The following respondents were terminated from the investigation 
based on settlement agreements, consent orders, or withdrawal of 
allegations from the complaint: One Step Up, InMotion, Hard Candy, 
DHGate.com, Alibaba.com, A.G. Findings, Cellairis, Global Cellular, AFC 
Trident, Better Technology Group, and OEMBargain.com. The following 
respondents were found in default: Anbess, Guangzhou Evotech, Hoffco, 
HJJ, Sinatech, Suntel, Trait Technology, Papaya, Quanyun, Topter, 
Cellet, TheCaseSpace, MegaWatts, Hypercel, Star & Way, SmileCase, 
TheCaseInpoint, and National Cellular (collectively ``Defaulting 
Respondents''). Griffin is the only remaining respondent not found in 
default, and the only respondent that appeared before the Commission.
    On June 29, 2012, the ALJ issued his final ID, finding a violation 
of section 337 by Griffin and the Defaulting Respondents. Specifically, 
the ALJ found that the Commission has subject matter jurisdiction: in 
rem jurisdiction over the accused products and in personam jurisdiction 
over the respondents. ID at 45-46. The ALJ also found that the 
importation requirements of section 337 (19 U.S.C. 1337(a)(1)(B), (C)) 
have been satisfied. Id. at 38-45. Regarding infringement, the ALJ 
found that the Defaulting Respondents' accused products infringe the 
asserted claims of the asserted patents and the asserted trademarks. 
Id. at 62-88. The ALJ further found that Griffin's accused products, 
the Griffin survivor for iPad 2 and Griffin Explorer for iPhone 4, 
literally infringe the asserted claims of the '122 patent but that the 
Griffin Survivor for iPhone 4 and Griffin Survivor for iPod Touch do 
not literally infringe the asserted claims of the '122 patent. Id. at 
64-78. The ALJ concluded that an industry exists within the United 
States for the asserted patents

[[Page 66633]]

and trademarks as required by 19 U.S.C. 1337(a)(2). Id. at 89-108.
    On July 16, 2012, Otter filed a petition for review of the ID. That 
same day, the Commission investigative attorney filed a petition for 
review. On July 17, 2012, Griffin filed a petition for review (the 
Commission granted Griffin's motion for leave to file its petition one 
day late). On July 24, 2012, the parties filed responses to the 
petitions for review.
    On August 30, 2012, the Commission determined to review a single 
issue in the final ID and requested briefing on the issue it determined 
to review, and on remedy, the public interest and bonding. 77 FR 54924 
(Sept. 6, 2012). Specifically, the Commission determined to review the 
finding that the accused Griffin Survivor for iPod Touch does not 
literally infringe the asserted claims of the '122 patent.
    On September 14, 2012, the parties filed written submissions on the 
issue under review, remedy, the public interest, and bonding. On 
September 21, 2012, the parties filed reply submissions.
    Having examined the record of this investigation, including the 
ALJ's final ID, the Commission has determined to reverse the ALJ's 
finding that the accused Griffin Survivor for iPod Touch does not 
literally infringe the asserted claims of the '122 patent. The 
Commission adopts the ALJ's findings in all other respects.
    Having found a violation of section 337 in this investigation, the 
Commission has determined that the appropriate form of relief is: (1) A 
general exclusion order prohibiting the unlicensed entry of protective 
cases and components thereof covered by the claim of the D908 patent, 
the D784 patent, the D536 patent, the D785 patent, the D741 patent, or 
the D386 patent, or one or more of claims 1, 5-7, 13, 15, 17, 19-21, 
23, 25, 27, 28, 30-32, 37, 38, 42, and 44 of the '122 patent; or that 
infringe one or more of U.S. Trademark Reg. Nos. 3,788,534, 3,788,535, 
3,623,789, or 3,795,187; (2) cease and desist orders prohibiting 
domestic respondents Cellet, Hoffco, Hypercel, MegaWatts, National 
Cellular, SmileCase, TheCaseInPoint, and TheCaseSpace from conducting 
any of the following activities in the United States, including via 
internet activity: importing, selling, marketing, advertising, 
distributing, offering for sale, transferring (except for exportation), 
and soliciting U.S. agents or distributors for, protective cases and 
components thereof covered by the D908 patent, the D784 patent, the 
D536 patent, the D785 patent, the D741 patent, or the D386 patent, or 
one or more of claims 1, 5-7, 13, 15, 17, 19-21, 23, 25, 27, 28, 30-32, 
37, 38, 42, and 44 of the '122 patent; or that infringe one or more of 
U.S. Trademark Reg. Nos. 3,788,534, 3,788,535, 3,623,789, or 3,795,187; 
and (3) a cease and desist order prohibiting Griffin from conducting 
any of the following activities in the United States, including via 
internet activity: importing, selling, marketing, advertising, 
distributing, offering for sale, transferring (except for exportation), 
and soliciting U.S. agents or distributors for, protective cases and 
components thereof covered by one or more of claims 1, 5-7, 13, 15, 17, 
19-21, 23, 25, 27, 28, 30-32, 37, 38, 42, and 44 of the '122 patent.
    The Commission has also determined that the public interest factors 
enumerated in section 337(d), (f), and (g) (19 U.S.C. 1337(d), (f), and 
(g)) do not preclude issuance of the general exclusion order or cease 
and desist orders. Finally, the Commission has determined that for 
Griffin, a bond in the amount of 12.45 percent of entered value for 
tablet cases and no bond for non-tablet cases is required to permit 
temporary importation during the period of Presidential review (19 
U.S.C. 1337(j)) of its infringing protective cases and components 
thereof. For Defaulting Respondents, the Commission has determined that 
a bond of 331.80 percent of entered value for tablet cases and 245.53 
percent of entered value for non-tablet cases is required to permit 
temporary importation during the period of Presidential review (19 
U.S.C. 1337(j)) of protective cases and components thereof that are 
subject to the orders. For all other infringing products, the 
Commission has determined that a bond of 100 percent of entered value 
is required to permit temporary importation during the period of 
Presidential review (19 U.S.C. 1337(j)) of protective cases and 
components thereof that are subject to the general exclusion order. The 
Commission's orders and opinion were delivered to the President and to 
the United States Trade Representative on the day of their issuance.
    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 and 210.50 of the Commission's Rules of Practice 
and Procedure, 19 CFR 210.42-46, 210.50.

    Issued: October 31, 2012.

    By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-26995 Filed 11-5-12; 8:45 am]
BILLING CODE 7020-02-P