[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Notices]
[Pages 32472-32474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14406]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1081]


Certain LED Lighting Devices, LED Power Supplies, and Components 
Thereof; Commission's Final Determination of No Violation of Section 
337 by the Participating Respondents, and Final Determination of a 
Violation of Section 337 by a Defaulted Respondent; Issuance of a 
Limited Exclusion Order and a Cease and Desist Order; Termination of 
the Investigation

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 found no violation of section 337 of the Tariff Act of 
1930, as amended, by participating respondents Feit Electric Company, 
Inc. of Pico Rivera, California and Feit Electric Company, Inc. (China) 
of Xiamen, China (together, ``Feit''); Lowe's Companies, Inc. of 
Mooresville, North Carolina and L G Sourcing, Inc. of North Wilkesboro, 
North Carolina (together, ``Lowe's''); and Satco Products, Inc. of 
Brentwood, New York (``Satco''). The Commission has found a violation 
of section 337 by defaulting respondent MSi Lighting, Inc. of Boca 
Raton, Florida (``MSi Lighting''), and has determined to issue a 
limited exclusion order and a cease and desist order against that 
respondent. The investigation is terminated.

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).

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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 complainants Philips 
Lighting North America Corp. and Philips Lighting Holding B.V. 
(together, ``Complainants''). 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: Edgewell Personal Care 
Brands, LLC of Shelton, Connecticut (``Edgewell''); Feit; Lowe's; MSi 
Lighting; 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 (Feb. 26, 2018). Additionally, the Commission amended 
the notice of investigation to remove respondent Edgewell, which 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, Complainants 
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 Complainants 
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. The 
ID found, inter alia, 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 Complainants showed a domestic industry with respect 
to all three remaining asserted patents.
    On April 12, 2019, the Commission determined to review the 
following issues:

    1. The ID's infringement findings for the ``controller'' 
limitation of recited in claims 7 and 8 of the '399 patent, and the 
ID's infringement findings for the ``adjustment circuit'' limitation 
recited in claims 17-19 of the '399 patent;
    2. the ID's findings regarding whether products are 
representative of other products with respect to its 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.

    Notice, 84 FR 16280-82 (Apr. 18, 2019). The Commission also sought 
briefing on whether the record shows that the accused products satisfy 
the ``controller'' and ``adjustment circuit'' limitations of the '399 
patent, as well as briefing on remedy, the public interest, and 
bonding. Id. at 16282. The Commission received written submissions from 
Complainants and Respondents on April 26, 2019, and reply written 
submissions from Complainants and Respondent on May 3, 2019. The 
Commission also received submissions on remedy and the public interest 
from Good Earth Lighting, Inc.; Evolution Lighting, LLC; American 
Lighting, Inc.; Jiawei Technology (USA) Ltd.; Blue Sky Wireless, LLC; 
GE Lighting; and Litex Industries, Ltd.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions, responses, and other submissions from 
the parties and the public, the Commission has determined that 
Complainants have not proven a violation of section 337 by Respondents. 
Specifically, the Commission has determined that Complainants failed to 
show that any accused product satisfies the ``controller'' limitation 
of claims 7 and 8 of the '399 patent and failed to show that any 
accused product satisfies the ``adjustment circuit'' limitation of the 
claims 17-19 of the '399 patent. Consequently, the Commission finds 
that Complainants failed to establish that any of Respondents' accused 
products infringes any claim of the '399 patent. The Commission further 
finds that Complainants failed to show that any of Respondents' accused 
products is representative of any other accused product. Finally, the 
Commission has determined to take no position on the ID's findings that 
Complainants satisfied the economic prong of the domestic industry 
requirement through investments under section 337(a)(3)(A) and (B) with 
respect to the '399 patent, and the ID's findings that Complainants 
satisfied the economic prong of the domestic industry requirement 
through investments under section 337(a)(3)(C) with respect to the '554 
patent.
    With respect to defaulted respondent MSi Lighting, Complainants 
request a remedy only with respect to the '399 patent. Under section 
337(g)(1) (19 U.S.C. 1337(g)(1)), the Commission presumes that the 
allegations in the complaint are true, including the allegations that 
MSi Lighting infringes claims 1, 2, 4, and 5 of the '399 patent and 
that Complainants satisfied the domestic industry requirement with 
respect to the '399 patent. The Commission has determined that the 
appropriate form of relief in this investigation is a limited exclusion 
order and a cease and desist order prohibiting MSi Lighting from 
importing, selling, offering for sale, marketing, advertising, 
distributing, offering for sale, transferring (except for exportation), 
or soliciting U.S. agents or distributors of imported LED devices, LED 
power supplies, and components that infringe claims 1, 2, 4, and 5 of 
the '399 patent. Id. The Commission has further determined that the 
public interest factors enumerated in section 337(g)(1) (19 U.S.C. 
1337(g)(1)) do not

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preclude the issuance of the limited exclusion order and cease and 
desist order. Finally, the Commission has determined that the bond for 
importation during the period of Presidential review shall be in the 
amount of three percent of the entered value of the imported subject 
articles of MSi Lighting.
    The parties also have several pending motions and requests. On 
February 6, 2019, Complainants moved to amend the complaint and notice 
of investigation to reflect a corporate name change, as Philips 
Lighting North American Corporation changed its name to Signify North 
America Corporation and Philips Lighting Holding B.V. changed its name 
to Signify Holding B.V. No party opposed the motion. The Commission 
grants Complainants' motion for good cause shown. The term 
``Complainants'' refers to both Signify North America Corporation and 
Signify Holding B.V., as well as their previous names, Philips Lighting 
North American Corporation and Philips Lighting Holding B.V.
    On May 7, 2019, Respondents filed a letter stating that 
Complainants inappropriately attached a version of an expert witness 
statement that contains stricken material and that was not admitted 
into evidence. The Commission clarifies that it has relied upon only 
the version of the expert witness statement that was admitted into 
evidence.
    On May 23, 2019, Respondents filed a letter requesting to conduct 
post-hearing discovery concerning alleged perjury based on statements 
that occurred nine months earlier during the evidentiary hearing on 
August 20, 2018. On May 31, 2019, Complainants filed a letter in 
response. The Commission denies Respondents' tardy request for post-
hearing discovery for failure to establish an adequate basis for their 
requested relief.
    Accordingly, the Commission has determined that Complainants have 
failed to show a violation of section 337 by Respondents with respect 
to the '399, '559, and '554 patents. The Commission has also determined 
to issue a limited exclusion order and a cease and desist order against 
MSi Lighting pursuant to section 337(g)(1) (19 U.S.C. 1337(g)(1)). The 
Commission's determinations are explained more fully in the 
accompanying Opinion. All other findings in the ID under review that 
are consistent with the Commission's determinations are affirmed.
    The Commission's notice, orders, and opinion were delivered to the 
President and to the United States Trade Representative on the day of 
their issuance. The Commission has also notified the Secretary of the 
Treasury and Customs and Border Protection of the order. The 
investigation is hereby terminated.
    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: July 1, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-14406 Filed 7-5-19; 8:45 am]
 BILLING CODE 7020-02-P