[Federal Register Volume 84, Number 161 (Tuesday, August 20, 2019)]
[Notices]
[Pages 43159-43161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17851]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1121]


Certain Earpiece Devices and Components Thereof; Commission 
Determination To Review In Part an Initial Determination Granting In 
Part a Motion for 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 (``ALJ'') initial determination (``ID'') 
(Order No. 16) granting in part a summary determination on violation of 
section 337 by certain defaulting and non-participating respondents in 
the above-captioned investigation. The Commission is requesting written 
submissions from the parties on an issue under review, and 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: Cathy Chen, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2392. 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 June 29, 2018, based on a complaint filed on behalf of Bose 
Corporation of Framingham, Massachusetts (``Bose''). 83 FR 30,776 (Jun. 
29, 2018). The complaint alleges violations of section 337 of the 
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337'') based 
upon the importation into the United States, the sale for importation, 
and the sale within the United States after importation of certain 
earpiece devices and components thereof by reason of infringement of 
one or more claims of U.S. Patent Nos. 9,036,852 (``the '852 patent''); 
9,036,853 (``the '853 patent''); 9,042,590 (``the '590 patent''); 
8,311,253 (``the '253 patent''); 8,249,287 (``the '287 patent''); and 
9,398,364 (``the '364 patent''). The '852, '853, '590, '253, and '287 
patents are herein referred to as the StayHear[supreg] Patents. The 
complaint further alleges that an industry in the United States exists 
as required by section 337.
    The notice of investigation named fourteen respondents: (1) 1MORE 
USA, Inc. of San Diego, California; (2) APSkins of Seattle, Washington; 
(3) Beeebo Online Limited (``Beeebo'') of North Las Vegas, Nevada; (4) 
iHip of Edison, New Jersey; (5) LMZT LLC of Brooklyn, New York; (6) 
Misodiko of ShenZhen, GuangDong, China; (7) Phaiser LLC of Houston, 
Texas; (8) Phonete of Shenzhen, China; (9) REVJAMS of New York, New 
York; (10) SMARTOMI Products, Inc. of Ontario, California; (11) Spigen, 
Inc. of Irvine, California; (12) Sudio AB of Stockholm, Sweden; (13) 
Sunvalley Tek International, Inc. of Fremont, California; and (14) 
TomRich of Shenzhen, China. The Office of Unfair Import Investigations 
(``OUII'') was also named as a party in this investigation.

[[Page 43160]]

    On October 4, 2018, Bose moved to amend the notice of investigation 
and for leave to file an amended complaint in order, among other 
things, (i) to correct the name of respondent iHip to Zeikos, Inc.; and 
(ii) to correct the name and address of respondent SMARTOMI Products, 
Inc. to V4ink, Inc. On October 29, 2018, the ALJ granted the motion. 
See Order No. 10 (Oct. 29, 2018), not rev'd by Comm'n Notice (Nov. 23, 
2018); 83 FR 61168 (Nov. 28, 2018); 83 FR 62900 (Dec. 6, 2018). Bose 
filed and served its amended complaint on February 21, 2019.
    During the course of the investigation, Bose settled with the 
following respondents: APSkins; Zeikos, Inc.; LMZT LLC; Spigen, Inc.; 
Sudio AB; and Sunvalley Tek International, Inc. See Order Nos. 8 and 9 
(Oct. 19, 2018), not rev'd by Comm'n Notice (Nov. 9, 2018); Order No. 
11 (Oct. 29, 2018), not rev'd by Comm'n Notice (Nov. 27, 2018); Order 
No. 12 (Nov. 26, 2018), not rev'd by Comm'n Notice (Dec. 19, 2018); 
Order Nos. 14 and 15 (Feb. 21, 2019), not rev'd by Comm'n Notice (Mar. 
11, 2019). In addition, with the exception of Spigen, Inc., consent 
orders were issued against all of these respondents. Id. Thus, the 
investigation has been terminated with respect to these six 
respondents.
    Five other respondents have been found in default pursuant to 
Commission Rule 210.16, 19 CFR 210.16: Beeebo; Misodiko; Phaiser LLC; 
V4ink, Inc.; and TomRich (collectively, ``the Defaulting 
Respondents''). See Order No. 7 (Sep. 20, 2018); Order No. 13 (Dec. 11, 
2018), not rev'd by Comm'n Notice (Dec. 21, 2018).
    On February 8, 2019, Bose moved for summary determination of a 
violation of section 337. Bose filed a corrected motion on March 1, 
2019. Thereafter, Bose filed several replacement exhibits and a 
supplemental index.
    The remaining three respondents, 1MORE USA, Inc., Phonete, and 
REVJAMS (collectively ``the Non-Participating Respondents''), have not 
submitted any response, appeared, or otherwise participated in the 
investigation despite being served with the complaint or amended 
complaint, and the motion for summary determination of violation. The 
three Non-Participating Respondents and the five Defaulting Respondents 
were the subject of Bose's motion for summary determination of a 
violation of section 337. On March 22, 2019, OUII filed a response 
supporting Bose's motion in substantial part and supporting the 
requested remedy of a general exclusion order.
    On June 28, 2019, the ALJ issued the subject ID and his Recommended 
Determination (``RD'') on remedy and bonding. The ID grants in part 
Bose's motion for summary determination of a violation of section 337. 
Specifically, the ALJ found, inter alia, that Bose established that the 
importation requirement is satisfied as to each Defaulting Respondent 
and Non-Participating Respondent and each accused product; that other 
than infringement of claim 7 of the '852 patent with respect to the 
Misodiko, Phonete, and TomRich products, Bose established infringement 
of claims 1 and 7 of the '852 patent; claims 1 and 8 of the '853 
patent; claims 1 and 6 of the '590 patent; claim 1 of the '253 patent; 
claims 1, 7, and 8 of the '287 patent; and claims 1 and 11 of the '364 
patent; and that Bose satisfied the domestic industry requirement for 
each asserted patent. In addition, the ALJ recommended that the 
Commission issue a general exclusion order, cease and desist orders, 
and impose a 100 percent bond during the period of Presidential review.
    No petitions for review were filed.
    Having reviewed the record of this investigation, including the ID, 
the Commission has determined to review the ID in part. Specifically, 
the Commission has determined to review the following findings, which 
were based on the substantial, reliable, and probative evidence 
standard: (1) The ID's finding that Bose has established infringement 
of claim 7 of the '852 patent with respect to Beeebo's Dodocool 
Earhooks, and, on review, reverse that finding; (2) the ID's finding 
that Bose has satisfied the economic prong of the domestic industry 
requirement under sections 337(a)(3)(A) and (B) with respect to the 
'364 patent; and (3) the ID's finding that Bose has satisfied the 
economic prong of the domestic industry requirement under section 
337(a)(3)(C) with respect to the asserted patents, and, on review, take 
no position on that finding. The Commission has determined not to 
review the remainder of the ID. Accordingly, the Commission finds a 
violation of section 337 by reason of infringement of claims 1 and 7 of 
the '852 patent; claims 1 and 8 of the '853 patent; claims 1 and 6 of 
the '590 patent; claim 1 of the '253 patent; and claims 1, 7, and 8 of 
the '287 patent; and the satisfaction of the domestic industry 
requirement under sections 337(a)(3)(A) and (B) with respect to the 
StayHear[supreg] Patents.
    The parties are requested to brief their positions on only the 
following issue under review.
    1. The record evidence shows that Bose aggregated its domestic 
investments in Fiscal Year 2018 for domestic industry products that 
practice the StayHear[supreg] Patents and the '364 patent to establish 
a domestic industry under sections 337(a)(3)(A) and (B). Bose, however, 
relies on a subset of its domestic industry products to satisfy the 
domestic industry requirement with respect to the '364 patent. Please 
provide an appropriate allocation of the domestic investments and 
discuss whether such allocated investments establish a domestic 
industry under sections 337(a)(3)(A) and (B) with respect to the '364 
patent.
    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 cease and desist order(s) that could result in the respondent(s) 
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 (Dec. 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, lnv. 
No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and Certain Electric Skin 
Care Devices, Brushes and Chargers Therefor, and Kits Containing the 
Same, lnv. No. 337-TA-959, Comm'n Op. (Feb. 13, 2017). Specifically, if 
Complainant seeks a cease and desist order against a 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 
Complainant also relies on other significant domestic operations that 
could undercut the remedy

[[Page 43161]]

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. ln 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.
    3. Please explain with citation to the record whether respondents 
1MORE USA, Inc., Phonete, and REVJAMS satisfy the requirements of 
subsections (A)-(E) of section 337(g)(1). See SD at 4.
    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 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.
    Complainant and OUII are also requested to submit proposed remedial 
orders for the Commission's consideration. Complainant is further 
requested to state the dates that the asserted patents expire, 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 August 28, 2019. Reply submissions must be filed no later than the 
close of business on September 5, 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 Commission Rule 210.4(f), 19 CFR 210.4(f). Submissions 
should refer to the investigation number (Inv. No. 337-TA-1121) 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, (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. 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, solely for cybersecurity purposes. 
All contract personnel will sign appropriate nondisclosure agreements. 
All nonconfidential written submissions will be available for public 
inspection at the Office of the Secretary and on EDIS.
    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: August 14, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-17851 Filed 8-19-19; 8:45 am]
BILLING CODE 7020-02-P