[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Notices]
[Pages 16280-16282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07741]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1081]
Certain LED Light Devices, LED Power Supplies, and Components
Thereof; Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Schedule for Filing
Written Submissions on the Issues Under Review and on Remedy, the
Public Interest, and Bonding; Extension of the Target Date
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 a final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ''), finding a violation of section 337 of the Tariff Act of
1930. The Commission requests briefing from the parties on certain
issues under review, as indicated in this notice. The Commission also
requests briefing from the parties and interested persons on the issues
of remedy, the public interest, and bonding. The Commission has also
determined to extend the target date for the completion of the above-
captioned investigation to June 18, 2019.
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 (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 November 8, 2017, based on a complaint filed by Philips. 82 FR
51872. 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 after importation
within the United States after importation of certain LED devices, LED
power supplies, and components thereof by reason of infringement of one
or more claims of U.S. Patent Nos. 6,586,890 (``the '890 patent'');
7,038,399 (``the '399 patent''); 7,256,554 (``the '554 patent'');
7,262,559 (``the '559 patent''); and 8,070,328 (``the '328 patent'').
Id. The notice of investigation named the following respondents: Feit
Electric Company, Inc. of Pico Rivera, California, and Feit Electric
Company, Inc. (China) of Xiamen, China (together, ``Feit''); Edgewell
Personal Care Brands, LLC of Shelton, Connecticut (``Edgewell'');
Lowe's Companies, Inc. of Mooresville, North Carolina (``LCI'') and L G
Sourcing, Inc. of North Wilkesboro, North Carolina (``LGS'') (together,
``Lowe's''); MSi Lighting, Inc. of Boca Raton, Florida (``MSi
Lighting''); Satco Products, Inc. of Brentwood, New York (``Satco'');
Topaz Lighting Corp. of Holtsville, New York (``Topaz''); and Wangs
Alliance Corporation d/b/a/WAC Lighting Co. of Port Washington, New
York, and WAC Lighting (Shanghai) Co. Ltd. of Shanghai, China
(together, ``WAC''). Id. The Office of Unfair Import Investigations is
not a party to the investigation. Id.
The Commission subsequently terminated the investigation with
respect to Topaz and WAC based on settlement agreements. Order No. 9
(Jan. 8, 2018), not reviewed Notice (Jan. 16, 2018); Order No. 42 (May
2, 2018), not reviewed Notice (May 18, 2018). The Commission also found
MSi Lighting in default for failing to respond to the complaint and
notice of investigation. Order No. 20 (Jan. 31, 2018), not reviewed
Notice (February 26, 2018). Additionally, the Commission amended the
notice of investigation to remove respondent Edgewell, who was not
named in the complaint but was erroneously included in the notice of
investigation. Notice (Aug. 6, 2018). Accordingly, at the time of the
final ID, the remaining participating respondents were Feit, Lowe's,
and Satco (collectively, ``Respondents'').
The Commission also terminated the investigation based on a partial
withdrawal of the complaint with respect to the entire '328 patent, the
entire '890 patent, certain claims of the '399 patent, and certain
claims of the '554 patent. Order No. 44 (May 22, 2018), not reviewed
Notice (June 11, 2018); Order No. 53 (June 28, 2018), not reviewed
Notice (July 24, 2018). At the time of the final ID, Philips asserted
that Respondents infringed claims 7, 8, 17-19, 34, and 35 of the '399
patent and claims 6 and 12 of the '559 patent, and that Lowe's
infringed claims 1, 2, 5-7, and 12 of the '554 patent. ID at 64, 84.
The ALJ also issued a summary determination that Philips showed
that its eW Cove Powercore device satisfied the technical prong of the
domestic industry requirement with respect to claims 1, 2, 5-7 and 12
of the '554 patent. Order No. 55 (Aug. 1, 2018), not reviewed Notice
(Aug. 17, 2018).
On December 19, 2018, the ALJ issued the final ID finding a
violation of section 337 with respect to the '399 patent, but no
violation of section 337 with respect to the '554 and '559 patents.
Specifically, the ALJ found that Respondents' products infringe claims
7, 8, and 17-19 of the '399 patent; that certain Lowe's products
infringed claims 1, 2, 5, 6, 7, and 12 of the '554 patent but were not
shown to be imported or sold by a named respondent; that no products
were shown to infringe the '559 patent; that no asserted claim was
shown to be invalid; and that Philips showed a domestic industry with
respect to all three remaining asserted patents.
On February 6, 2019, Philips and Respondents each filed a petition
for review of the final ID. On February 14, 2019, Philips and
Respondents responded to each other's petition.
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
[[Page 16281]]
issues: (1) The ID's infringement findings for the ``controller''
limitation of claims 7 and 8 of the '399 patent, and the ID's
infringement findings for the ``adjustment circuit'' limitation of
claims 17-19 of the '399 patent; (2) the ID's findings whether products
are representative of other products with respect to infringement
findings for claims 17-19 of the '399 patent and for claims 6 and 12 of
the '559 patent; and (3) the ID's findings on the economic prong of the
domestic industry requirement. The Commission has determined not to
review any other findings presented in the final ID.
The Commission has also determined to extend the target date for
the completion of the investigation until June 18, 2019.
In connection with its review, the Commission is interested in
briefing on following issues:
1. In order to satisfy a means-plus-function limitation, the
patent owner must show ``that the relevant structure in the accused
device perform[s] the identical function recited in the claim and be
identical or equivalent to the corresponding structure in the
specification.'' Odetics, Inc. v. Storage Tech. Corp., 185 F.3d
1259, 1267 (Fed. Cir. 1999). Here, the ALJ construed ``controller''
in claims 7 and 8 of the '399 patent to be a means-plus-function
term with the functions of (1) ``receiv[ing] a power-related signal
from an alternating current (A.C.) power source that provides
signals other than a standard A.C. line voltage''; (2) ``provid[ing]
power to the at least one LED based on the power-related signal'';
and (3) ``variably control[ing] at least one parameter of light
generated by the at least one LED in response to operation of the
user interface; and (4) ``variably control[ling] the at least one
parameter of the light based at least on the variable duty cycle of
the power-related signal.'' Order No. 49 at 47 (Jun. 6, 2018). The
ALJ also found that the corresponding structure for these functions
is ``controllers 204A and 204B shown in Figures 5 and 7.'' Id.
Please identify the portions of record that show that each of the
accused products contain a structure that performs identical
functions and is identical or equivalent to ``controllers 204A and
204B,'' or explain why the record does not show that the accused
products contain such a structure. The parties are not to identify
evidence or present arguments that were not previously presented to
the ALJ.
2. Please identify the portions of the record that show that
each accused product satisfies the limitation ``an adjustment
circuit to variably control the at least one parameter of light
based on the varying power-related signal'' found in claims 17-19 of
the '399 patent, or explain why the record does not show that the
accused products satisfy this limitation. The parties are not to
identify evidence or present arguments that were not previously
presented to the ALJ.
The parties are invited to brief only the discrete issues 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 Commission requests that the parties to
the investigation file written submissions on the issues identified in
this notice. The Commission encourages parties to the investigation,
interested government agencies, and any other interested parties 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, which issued on
December 19, 2018. The Commission further requests that Philips submit
proposed remedial orders, state the date when the '399 patent expires,
provide the HTSUS numbers under which the subject articles are
imported, and supply a list of known importers of the subject article.
The written submissions, exclusive of any exhibits, must not exceed 50
pages, and must be filed no later than close of business on April 26,
2019. Reply submissions must not exceed 25 pages, and must be filed no
later than the close of business on May 3, 2019. 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 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-1081'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.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
[[Page 16282]]
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.
---------------------------------------------------------------------------
\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: April 12, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-07741 Filed 4-17-19; 8:45 am]
BILLING CODE 7020-02-P