[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