[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
---------------------------------------------------------------------------

    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