[Federal Register Volume 83, Number 198 (Friday, October 12, 2018)]
[Notices]
[Pages 51703-51705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22189]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1092]
Certain Self-Anchoring Beverage Containers; Commission
Determination To Review in Part an Initial Determination Granting
Summary Determination of a Section 337 Violation; Schedule for Filing
Written Submissions
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 presiding
administrative law judge's initial determination (Order No. 15)
granting summary determination that the defaulting respondents have
violated section 337 in the above-captioned investigation. The
Commission requests briefing from the parties, interested government
agencies, and interested persons on the issues of remedy, the public
interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Clara Kuehn, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
[[Page 51704]]
Washington, DC 20436, telephone (202) 205-3012. 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 this investigation
on January 8, 2018, based on a complaint, as amended, filed by
Complainants Alfay Designs, Inc., of Rahway, New Jersey; Mighty Mug,
Inc., of Rahway, New Jersey; and Harry Zimmerman of Los Angeles,
California (collectively, ``Complainants''). 83 FR 835-36 (Jan. 8,
2018). The amended complaint alleged violations of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in
the importation into the United States, the sale for importation, and
the sale within the United States after importation of certain self-
anchoring beverage containers by reason of infringement of certain
claims of U.S. Patent Nos. 8,028,850 (``the '850 patent'') and
8,757,418 (``the '418 patent''), as well as U.S. Trademark Registration
No. 4,191,803 (``the '803 trademark''). Id. The amended complaint
further alleged that a domestic industry in the United States exists or
is in the process of being established.
The notice of investigation named eight respondents: Telebrands,
Corp. of Fairfield, New Jersey (``Telebrands''); HIRALIY of Guangzhou,
Chin; Chekue, Shenzen Chekue Trading Co. Ltd. of Shenzhen, China;
Tapcet, Guangzhou Tinghui Trade Co., Ltd. of Guangzhou, China; OTELAS,
MB of Klaipeda, Lithuania; and Artiart Limited of Taipei, Taiwan
(collectively, the ``Unserved Respondents''); and OUOH, Zhejiang OUOH
Houseware Co., Ltd., of Wenzhou, China (``OUOH''), and DevBattles of
Ternopil, Ukraine (``DevBattles''). Id. The notice of investigation
also named the Office of Unfair Import Investigations (``OUII'') as a
party to the investigation. Id. The Commission subsequently terminated
the investigation with respect to Telebrands and the Unserved
Respondents. See Order No. 8 (Feb. 16, 2018) (unreviewed Notice (Mar.
15, 2018)); Order No. 10 (Apr. 10, 2018) (unreviewed Notice (May 8,
2018)).
On May 3, 2018, the ALJ issued an ID (Order No. 11) finding in
default the last two remaining respondents, OUOH and DevBattles
(collectively, ``the defaulting respondents''). The Commission
determined not to review the ID. Comm'n Notice (June 1, 2018).
On May 25, 2018, Complainants filed a motion for summary
determination that the defaulting respondents have sold for importation
into the United States, imported into the United States, or sold after
importation certain self-anchoring beverage containers that infringe
certain claims of the '850 patent in violation of section 337. The
motion also requested a recommendation for entry of a general exclusion
order; the motion did not request cease and desist orders directed
against either defaulting respondent.
On June 6, 2018, the ALJ issued an ID (Order No. 12), granting
Complainants' motion to withdraw all allegations based on the '803
trademark and the '418 patent. The Commission determined not to review
the ID. Comm'n Notice (June 25, 2018).
On June 14, 2018, Complainants filed a supplement (``Supplement'')
to their May 25, 2018, motion for summary determination. On the same
day, OUII filed a response in support of Complainants' motion.
On August 27, 2018, the ALJ issued the subject ID granting
Complainants' motion for summary determination. The ALJ found that the
importation requirement is satisfied as to each defaulting respondent,
that the accused products of each defaulting respondent infringe claim
1 of the `850 patent, and that Complainants satisfied the domestic
industry requirement. No petitions for review of the ID were filed. The
ALJ recommended issuance of a general exclusion order and the
imposition of a bond in the amount of 100% of the entered value of
subject products during the period of Presidential review.
Having examined the record of this investigation, including the ID,
the Commission has determined to review in part the ALJ's ID granting
summary determination of a section 337 violation. Specifically, the
Commission has determined to review the following findings: (1) The
ID's findings on infringement to correct typographical errors, namely
to modify a cross-reference ``[f]or the foregoing reasons'' at page 11
of the ID to ``[f]or the following reasons'' and to modify a citation
to ``Mot. Ex. 3 at Attachments 1 (OUOH) and 6 (DevBattles)'' at page 11
of the ID to ``Mot. Ex. 3 at Attachments 3 (OUOH) and 6 (DevBattles)'',
and to strike the sentence at page 11 of the ID that refers to claim
charts attached to the Amended Complaint (``Complainants also attached
claim charts to the Amended Complaint . . . of the patent. (Compl Exh.
38 at 13-15 (OUOH), 16-18 (DevBattles).)''); (2) the ID's findings on
importation, and on review, (a) affirm the ID's finding on importation
as to defaulting respondent OUOH on the modified ground that
Complainants have established by substantial, reliable, and probative
evidence that the importation requirement of section 337 is satisfied
with respect to defaulting respondent OUOH and (b) take no position on
whether Complainants have established by substantial, reliable, and
probative evidence the importation requirement as to defaulting
respondent DevBattles; and (3) the ID's findings on the economic prong
of the domestic industry, and on review, affirm the ID's finding of the
existence of a domestic industry under subsection 337(a)(3)(B), and to
take no position on whether a domestic industry exists under
subsections 337(a)(3)(A) or (C).
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, Comm'n Op. at 7-10 (December
1994). In addition, if a party seeks issuance of any cease and desist
orders, the written submissions should address that request in the
context of recent Commission opinions, including those in Certain
Arrowheads with Deploying Blades and Components Thereof and Packaging
Therefor, Inv. No. 337-TA-977, Comm'n Op. (Apr. 28,
[[Page 51705]]
2017) and Certain Electric Skin Care Devices, Brushes and Chargers
Therefor, and Kits Containing the Same, Inv. No. 337-TA-959, Comm'n Op.
(Feb. 13, 2017). Specifically, if Complainants seek a cease and desist
order against a defaulting respondent, the written submissions should
respond to the following requests:
1. Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainants also rely on other significant domestic operations that
could undercut the remedy provided by an exclusion order, please
identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
2. In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
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. Such submissions should address the recommended
determination by the ALJ on remedy and bonding.
Complainants and OUII are also requested to submit proposed
remedial orders for the Commission's consideration. Complainants are
also requested to state the date that the asserted patent expires, the
HTSUS numbers under which the accused products are imported, and to
supply the identification information for all known importers of the
products at issue in this investigation. The written submissions and
proposed remedial orders must be filed no later than close of business
on October 22, 2018. Reply submissions must be filed no later than the
close of business on October 29, 2018. 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 eight
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-1092) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary at (202) 205-2000.
Any person desiring to submit a document 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 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 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 non-confidential
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: October 5, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-22189 Filed 10-11-18; 8:45 am]
BILLING CODE 7020-02-P