[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]


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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.

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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 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

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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: 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