[Federal Register Volume 84, Number 215 (Wednesday, November 6, 2019)]
[Notices]
[Pages 59838-59840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24193]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1121]


Certain Earpiece Devices and Components Thereof; Commission 
Determination To Vacate the Domestic Industry Finding as to One 
Asserted Patent; Remand the Investigation in Part to the Presiding 
Administrative Law Judge for Further Proceedings as to That Asserted 
Patent; and Extend the Target Date; Issuance of a General Exclusion 
Order, a Limited Exclusion Order, and Cease and Desist Orders as to the 
Other Five Asserted Patents

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 vacate the presiding administrative law 
judge's (``ALJ'') domestic industry finding with respect to U.S. Patent 
No. 9,398,364 (``the '364 patent''), remand the investigation in part 
to the ALJ for further proceedings with respect to that patent 
consistent with its concurrently issued opinion and remand order, and 
extend the target date for completion of the investigation. The 
Commission has also determined to issue: (1) A general exclusion order 
prohibiting the unlicensed importation of certain earpiece devices and 
components thereof that infringe one or more of claims 1 and 7 of U.S. 
Patent No. 9,036,852 (``the '852 patent''); claims 1 and 8 of U.S. 
Patent No. 9,036,853 (``the '853 patent''); claims 1 and 6 of U.S. 
Patent No. 9,042,590 (``the '590 patent''); and claims 1, 7, and 8 of 
U.S. Patent No. 8,249,287 (``the '287 patent''); (2) a limited 
exclusion order prohibiting respondent V4ink Inc. (``V4ink'') from 
importing certain earpiece devices and components thereof that infringe 
claim 1 of U.S. Patent No. 8,311,253 (``the '253 patent''); and (3) 
cease and desist orders against certain respondents that were found in 
default or had not participated in the above-captioned investigation. 
The investigation is terminated with respect to these five patents.

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 (``Bose'') of Framingham, Massachusetts. 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

[[Page 59839]]

components thereof by reason of infringement of one or more claims of 
the '852, '853, '590, '253, '287, and '364 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. (``1MORE'') 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 
(``Phaiser'') 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.
    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. 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; 
V4ink; 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, 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.
    On August 14, 2019, the Commission determined to review the ID in 
part and requested briefing on one issue it determined to review, and 
on remedy, the public interest, and bonding. 84 FR 43159-161 (Aug. 20, 
2019). Specifically, the Commission determined to review and reverse 
the ID's finding that Bose has established infringement of claim 7 of 
the '852 patent with respect to Beeebo's Dodocool Earhooks. The 
Commission also determined to review the ID's finding that Bose has 
satisfied the economic prong of the domestic industry requirement under 
subparagraphs 337(a)(3)(A) and (B) with respect to the '364 patent. The 
Commission further determined to review and take no position on the 
ID's finding that Bose has satisfied the economic prong of the domestic 
industry requirement under subparagraph 337(a)(3)(C) with respect to 
the asserted patents. The Commission determined not to review the 
remainder of the ID. The Commission's determination resulted in finding 
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 subparagraphs 337(a)(3)(A) and (B) with respect to 
these patents.
    On August 28, 2019, Bose and OUII filed initial written submissions 
regarding the issue on review, and on remedy, the public interest, and 
bonding. That same day, non-party Anker Innovations Limited (``Anker'') 
filed a written submission concerning remedy. On September 5, 2019, 
Bose filed a response to Anker's submission.
    Having examined the record of this investigation, including the ID 
and the submissions received, the Commission has determined to vacate 
the ID's finding that Bose has demonstrated the existence of a domestic 
industry under subparagraphs 337(a)(3)(A) and (B) with respect to the 
'364 patent. Accordingly, the Commission has determined to remand the 
investigation in part to the ALJ for further proceedings with respect 
to the '364 patent consistent with the Commission's concurrently issued 
opinion and remand order. The target date is extended to December 2, 
2019. Commissioner Schmidtlein does not join the decision to remand the 
investigation. Instead, she would affirm on modified grounds the 
determination that Bose demonstrated the existence of a domestic 
industry under subparagraphs 337(a)(3)(A) and (B) with respect to the 
'364 patent.
    As for the remaining asserted patents, the Commission has 
determined that the appropriate form of relief in this investigation 
is: (a) A general exclusion order prohibiting the unlicensed 
importation of certain earpiece devices and components thereof that 
infringe one or more 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; and claims 1, 
7, and 8 of the '287 patent; (b) a limited exclusion order prohibiting 
respondent V4ink from importing certain earpiece devices and

[[Page 59840]]

components thereof that infringe claim 1 of the '253 patent; and (c) 
cease and desist orders prohibiting respondents 1MORE, Beeebo, Phaiser, 
REVJAMS, V4ink, Misodiko, Phonete, and TomRich from further importing, 
selling, and distributing infringing products in the United States. The 
Commission has also determined that the public interest factors 
enumerated in paragraphs 337(d)(1) and (f)(1) (19 U.S.C. 1337(d)(1), 
(f)(1)) do not preclude the issuance of these remedial orders. Finally, 
the Commission has determined that the bond during the period of 
Presidential review pursuant to 19 U.S.C. 1337(j) shall be in the 
amount of one hundred (100) percent of the entered value of the 
imported articles that are subject to the exclusion orders. The 
Commission's orders were delivered to the President and to the United 
States Trade Representative on the day of their issuance. The 
investigation is hereby terminated with respect to the '852, '853, 
'590, '287, and '253 patents.
    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: October 31, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-24193 Filed 11-5-19; 8:45 am]
 BILLING CODE 7020-02-P