[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Notices]
[Pages 70834-70835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28893]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-929]


Certain Beverage Brewing Capsules, Components Thereof, and 
Products Containing the Same; Commission Determination To Review in 
Part a Final Initial Determination Finding No Violation; Schedule for 
Briefing 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 a final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ''), finding no violation of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-5468. 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 (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 September 9, 2014, based on a complaint filed by Adrian Rivera of 
Whittier, California, and Adrian Rivera Maynez Enterprises, Inc., of 
Santa Fe Springs, California (together, ``ARM''). 79 FR 53445-46. The 
complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 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 beverage brewing capsules, components thereof, 
and products containing the same that infringe claims 5-8 and 18-20 of 
U.S. Patent No. 8,720,320 (``the '320 patent''). Id. at 53445. The 
Commission's notice of investigation named as respondents Solofill LLC 
of Houston, Texas (``Solofill''); DongGuan Hai Rui Precision Mould Co., 
Ltd. of Dong Guan City, China (``DongGuan''); Eko Brands, LLC (``Eko 
Brands''), of Woodinville, Washington; Evermuch Technology Co., Ltd., 
of Hong Kong, China and Ever Much Company Ltd. of Shenzhen, China 
(together, ``Evermuch''); Melitta USA, Inc. (``Melitta''), of North 
Clearwater, Florida; LBP Mfg., Inc. of Cicero, Illinois and LBP 
Packaging (Shenzhen) Co. Ltd. of Shenzhen, China (together, ``LBP''); 
Spark Innovators Corp. (``Spark''), of Fairfield, New Jersey; B. 
Marlboros International Ltd. (HK) (``B. Marlboros'') of Hong Kong, 
China; and Amazon.com, Inc. (``Amazon'') of Seattle, Washington. The 
Office of Unfair Import Investigations was also named as a party to the 
investigation. Id.
    The Commission terminated the investigation with respect to 
Melitta, Spark, LBP, and B. Marlboros based on the entry of consent 
orders and terminated the investigation with respect to Amazon based on 
a settlement agreement. Notice (Dec. 18, 2014); Notice (Jan. 13, 2015); 
Notice (Mar. 27, 2015); Notice (Apr. 10, 2015). The Commission also 
found Eko Brands and Evermuch in default for failing to respond to the 
complaint and notice of investigation. Notice (May 18, 2015). 
Accordingly, Solofill and DongGuan (together, ``Respondents'') were the 
only respondents actively participating in the investigation at the 
time of the issuance of the final ID.
    On September 4, 2015, the ALJ issued his final ID finding no 
violation of section 337. The ID found that ARM had established every 
element for finding a violation of section 337 except for infringement. 
The ID found that Respondents were not liable for direct infringement 
because direct infringement required the combination of Respondents' 
products with a third-party single serve beverage brewer, and that 
Respondents were not liable for induced or contributory infringement 
because they did not have pre-suit knowledge of the '320 patent. The ID 
did find that Respondents' products directly infringed when combined 
with a third-party single serve coffee brewer, that the asserted claims 
have not been shown invalid by clear and convincing evidence, and that 
ARM satisfied both the technical and economic prongs of the domestic 
industry requirement. The ALJ also issued his recommendation on remedy 
and bonding along with his ID.
    On September 21, 2015, Complainants petitioned for review of the 
ID's findings that Respondents were not liable for induced and 
contributory infringement because of a lack of pre-suit knowledge, and 
Respondents petitioned for review of several of the ID's findings. On 
September 29, 2015, the parties opposed each other's petitions, and the 
Commission Investigative Attorney opposed both petitions.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the final ID in part. 
Specifically the Commission has determined to review the following: (1) 
The ID's findings on the construction, infringement, and technical 
prong of the domestic industry requirement for the limitation ``a 
needle-like structure,

[[Page 70835]]

disposed below the base''; (2) the ID's findings on induced and 
contributory infringement; (3) the ID's findings that the asserted 
claims are not invalid for a lack of written description, as 
anticipated by Beaulieu and the APA, or as obvious; and (4) the ID's 
findings on the economic prong of the domestic industry requirement. 
The Commission has determined not to review the remaining findings in 
the ID.
    In connection with its review, the Commission is interested in 
briefing only on the following issue:

    The Commission recently determined that the ``knowledge of the 
patent'' element for contributory infringement can be satisfied 
through service of a section 337 complaint. See Commission Opinion 
in Certain Television Sets, Television Receives, Television Tuners, 
and Components Thereof, Inv. No. 337-TA-910, at 41-43 (public 
version dated Oct. 30, 2015). Please explain how that determination 
impacts the issues of contributory and induced infringement in this 
investigation.

    The parties have been invited to brief only the discrete issue 
described above, with reference to the applicable law and evidentiary 
record. 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 
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 a cease and desist order that could result in the respondent 
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 (December 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 a cease and desist order 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 
or disapprove the Commission's action. 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 issue 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 and bonding. The complainants and the Commission Investigative 
Attorney are also requested to submit proposed remedial orders for the 
Commission's consideration. The complainants are additionally requested 
to state the date that the '320 patent expires, the HTSUS numbers under 
which the accused products are imported, and to supply a list of known 
importers of the products at issue. The entirety of the parties' 
written submissions must not exceed 50 pages, and must be filed no 
later than close of business on November 20, 2015. Reply submissions 
must not exceed 25 pages, and must be filed no later than the close of 
business on December 1, 2015. No further submissions on 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 and submit 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to Sec.  210.4(f) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-929'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.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. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. A 
redacted non-confidential version of the document must also be filed 
simultaneously with any confidential filing. All non-confidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
    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: November 9, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-28893 Filed 11-13-15; 8:45 am]
BILLING CODE 7020-02-P