[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Notices]
[Pages 92852-92853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30580]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-988]


Certain Pumping Bras Commission Determination To Review In-Part 
an Initial Determination Granting Complainant's Motion for Summary 
Determination of Section 337 Violation by Defaulted Respondents

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 an initial determination 
(``ID'') (Order No. 11) of the presiding administrative law judge 
(``ALJ'') granting Complainant's motion for summary determination of 
section 337 violation by Respondents found in default. On review, the 
Commission has determined to modify the ID to set aside the expenses 
relating to Complainant's patent and trademark prosecution and 
maintenance in the ID's domestic industry analysis. The Commission has 
determined not to review the remainder of the ID. The Commission's 
determination results in a determination of a violation of section 337. 
Accordingly, the Commission requests written submissions, under the 
schedule set forth below, on remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-4716. 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 https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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 Investigation No. 
337-TA-988 on March 14, 2016, based on a complaint filed by Complainant 
Simple Wishes, LLC (``Simple Wishes'') of Sacramento, California. See 
81 FR 13419-20 (Mar. 14, 2016). The complaint alleges violations of 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), 
based upon the importation into the United States, the sale for 
importation, and/or the sale within the United States after importation 
of certain pumping bras by reason of infringement of certain claims of 
U.S. Patent No. 8,323,070 (``the '070 patent'') and U.S. Patent No. 
8,192,247 (``the '247 patent''). Id. The notice of investigation 
identified TANZKY of Luohugu, China; BabyPreg of Shenzhen Guangdong, 
China; Deal Perfect of Shenzhen Guangdong, China; and Buywish of 
Nanjing Jiangsu, China, as respondents in this investigation. Id. The 
Office of Unfair Import Investigations is also a party to this 
investigation. Id. Respondent Buywish was subsequently terminated from 
the investigation. See Certain Pumping Bras, USITC Inv. No. 337-TA-988, 
Comm'n Notice (Aug. 9, 2016). As a result, the '247 patent which was 
asserted against Respondent Buywish only, is no longer at issue in this 
investigation. See ID at 4 n.1.
    On May 12, 2016, Complainant Simple Wishes filed a motion for an 
order to show cause and for entry of default against Respondents 
TANZKY, BabyPreg, and Deal Perfect (collectively, ``the Defaulting 
Respondents'') for failure to respond to the complaint and notice of 
investigation. On May 19, 2016, the Commission Investigative Attorney 
(``IA'') filed a response in support of Complainant's motion. On June 
22, 2016, the ALJ issued an initial determination granting 
Complainant's motion and finding TANZKY, BabyPreg, and Deal Perfect in 
default (Order No. 8). On July 8, 2016, the Commission determined not 
to review Order No. 8. See Certain Pumping Bras, USITC Inv. No. 337-TA-
988, Comm'n Notice (July 8, 2016).
    On August 30, 2016, Complainant Simple Wishes filed a motion for 
summary determination on domestic industry and violation of section 337 
by the Defaulting Respondents. In addition, Complainant Simple Wishes 
requested a recommended determination for the Commission to issue a 
general exclusion order and to set a bond at 100 percent. On September 
9, 2016, the IA filed a response in support of Complainant's motion and 
requested remedy.
    On October 31, 2016, the ALJ issued the subject ID (Order No. 11) 
granting Complainant's motion for summary determination on domestic 
industry and violation of section 337 by the Defaulting Respondents and 
recommending that the Commission issue a general exclusion order and 
set a bond at 100 percent. See Certain Pumping Bras, USITC Inv. No. 
337-TA-988, Order No. 11 (Oct. 31, 2016).
    On November 7, 2016, the IA filed a petition for a limited review 
of the ID with respect to the ID's consideration of Complainant's 
expenses relating to patent and trademark prosecution and maintenance 
in its domestic industry analysis under 19 U.S.C. 1337(a)(3)(C). 
Complainant did not file a response to the IA's petition.
    The Commission has determined to review the ID and on review, to 
modify the ID in-part to set aside the expenses relating to 
Complainant's patent and

[[Page 92853]]

trademark prosecution and maintenance in the domestic industry 
analysis. As recognized in Certain Video Game Systems and Controllers, 
patent prosecution activities rarely qualify as investments under 
section 337(a)(3)(C). See Certain Video Game Systems and Controllers, 
Inv. No. 337-TA-743, Comm'n Op., 2011 WL 1523774, *5 (Apr. 14, 2011). 
Rather, such activities are typically a step towards patent ownership 
and are insufficient to constitute exploitation of the patent under 
section 337(a)(3)(C). See id.; 19 U.S.C. 1337(a)(3)(C). Complainant 
made no showing that its patent and trademark prosecution and 
maintenance expenses are related to engineering, research and 
development, or licensing, or that such expenses otherwise qualify 
under 19 U.S.C. 1337(a)(3)(C).
    The Commission has determined not to review the remainder of the 
ID.
    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 the 
respondent(s) 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 (Dec. 1994) 
(Comm'n Op.).
    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 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: 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. Complainant and the Commission investigative attorney are 
also requested to submit proposed remedial orders for the Commission's 
consideration. Complainant is also requested to state the HTSUS numbers 
under which the accused products are imported and the expiration date 
of the '070 patent. The Complainant is also requested to supply the 
names of all known importers of the products at issue in this 
investigation.
    Written submissions must be filed no later than close of business 
on January 4, 2017. Reply submissions must be filed no later than the 
close of business on January 11, 2017. Such submissions should address 
the ALJ's recommended determinations on remedy and bonding which were 
made in Order No. 11. 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 and submit eight 
(8) true paper copies to the Office of the Secretary by noon the next 
day pursuant to section 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-988'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://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. 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,\1\ solely for 
cybersecurity purposes. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary and on 
EDIS.
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    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
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    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: December 14, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-30580 Filed 12-19-16; 8:45 am]
 BILLING CODE 7020-02-P