[Federal Register Volume 84, Number 217 (Friday, November 8, 2019)]
[Notices]
[Pages 60452-60454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24369]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1130]


Certain Beverage Dispensing Systems and Components Thereof; 
Commission Decision To Review a Final Initial Determination in Its 
Entirety; Schedule for Filing Written Submissions on the Issues Under 
Review and on Remedy, the Public Interest, and Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the Commission has determined to 
review the presiding administrative law judge's (``ALJ's'') final 
initial determination (``ID'' or ``final ID'') finding a violation of 
section 337 of the Tariff Act of 1930, as amended, with respect to U.S. 
Patent No. 7,188,751 (``the '751 patent''). The Commission requests 
briefing from the parties on certain issues under review, as set forth 
in this notice. The Commission also requests briefing from the parties, 
interested persons, and government agencies on the issues of remedy, 
the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street 
SW, Washington, DC 20436, telephone (202) 708-2532. The public version 
of the complaint can be accessed on the Commission's electronic docket 
(EDIS) at https://edis.usitc.gov, and 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 September 5, 2018, based on a complaint filed by Heineken 
International B.V. and Heineken Supply Chain B.V., both of Amsterdam, 
The Netherlands; and Heineken USA Inc. of White Plains, New York 
(collectively, ``Heineken''). 83 FR 45141, 45141-42 (Sept. 5, 2019). 
The complaint alleges a violation of 19 U.S.C. 1337 in the importation 
into the United States, sale for importation, or sale in the United 
States after importation of certain beverage dispensing systems and 
components thereof that allegedly infringe claims 1-11 of the '751 
patent. Id. The notice of investigation names as respondents Anheuser-
Busch InBev SA, and InBev Belgium NV, both of Leuven, Belgium; and 
Anheuser-Busch, LLC of St. Louis, Missouri (collectively, ``ABI''). Id. 
The Office of Unfair Import Investigations was not named as a party to 
this investigation. Id.
    On February 6, 2019, the ALJ granted Heineken's motion to partially 
terminate the investigation as to claims 2, 4-6, 8-9, and 11 of the 
'751 patent. Order No. 6 (Feb. 6, 2019), not reviewed, Notice (Mar. 7, 
2019). Remaining within the investigation are claims 1, 3, 7, and 10 of 
the '751 patent. On March 26, 2019, the ALJ issued Order No. 14, the 
Markman Order, construing certain claim terms. The ALJ conducted the 
evidentiary hearing from April 16-18 and 23, 2019.
    On September 5, 2019, the ALJ issued the subject final ID, finding 
claims 1, 3, 7, and 10 infringed and not invalid, and thereby finding a 
violation of section 337. On September 19, 2019, the ALJ issued a 
Recommended Determination on Remedy and Bond (``RD''). The RD 
recommends that should the Commission find a violation of section 337, 
that the Commission issue a limited exclusion order, cease and desist 
orders, and impose a bond rate during the period of Presidential review 
in the amount of 5% of the entered value of infringing articles.
    On September 18, 2019, ABI filed a petition for Commission review 
of the ID. That same day, Heineken filed a contingent petition for 
review. On September 26, 2019, the parties responded to each other's 
petitions.
    Having reviewed the record of the investigation, including Order 
No. 14, the final ID, and the parties' submissions to the ALJ and to 
the Commission, the Commission has determined to review the ID in its 
entirety.
    In connection with its review, the Commission requests responses to 
the following questions. The parties are

[[Page 60453]]

requested to brief their positions with reference to the applicable law 
and the existing evidentiary record.\1\
---------------------------------------------------------------------------

    \1\ In reviewing the ID, and in seeking briefing on these 
issues, the Commission has not determined to excuse any party's 
noncompliance with Commission rules and the ALJ's procedural 
requirements, including requirements to present issues in pre-
hearing and post-hearing submissions. See, e.g., Order No. 3 (Sept. 
11, 2018) (ground rules). The Commission may, for example, decline 
to disturb certain findings in the final ID upon finding that issue 
was not presented in a timely manner to the ALJ.
---------------------------------------------------------------------------

    (1) If the Commission were to find that the ``operating element'' 
limitation of claims 1 and 7 should be construed as a means-plus-
function claim limitation, and if the Commission were to adopt 
Heineken's recited function and corresponding structure as set forth on 
pages 12-13 of Claim Chart No. 1 in Order No. 14:
    Whether the accused products and domestic industry products 
practice that limitation.
    The parties are not to provide further briefing as to the propriety 
of such a construction, or to advocate alternative claim constructions. 
The existing record is adequate as to the parties' positions on these 
issues.
    (2) Whether, for purposes of contributory infringement under 35 
U.S.C. 271(c), the accused NOVA couplers or the NOVA appliances are 
especially made or especially adapted for use in an infringement of 
such patent, and not a staple article or commodity of commerce suitable 
for substantial noninfringing use.
    (3) Whether claims 1 and 7 of the '751 patent are obvious in view 
of Figures 17-20 and the associated written description in Jeans (RX-
658) (see ABI Pet. for Comm'n Rev. at 50-54) when combined with 
Timmermans (RX-838), van der Meer (RX-837) or Grill (RX-312).
    (4) Whether Heineken demonstrated significant investment in plant 
and equipment or significant employment of labor or capital, see 19 
U.S.C. 1337(a)(3)(A), (B), in an appropriate context, in view of 
Federal Circuit and Commission precedent concerning such context 
(including but not limited to Certain Carburetors and Products 
Containing Such Carburetors, Inv. No. 337-1123, Comm'n Op. (Oct. 28, 
2019) (public version)). For any context you argue is appropriate, 
please address the evidence in the record that permits an analysis 
within that context.
    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, Comm'n Op. at 7-10 (Dec. 1994).
    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 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 parties to the investigation are requested 
to file written submissions limited to the enumerated questions above. 
The parties' opening submissions should not exceed 50 pages, and their 
reply submissions should not exceed 40 pages. 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. 
Complainants are requested to submit proposed remedial orders for the 
Commission's consideration. Complainants are also requested to state 
the date that the asserted patents expire and the HTSUS numbers under 
which the accused products are imported, and provide identification 
information for all known importers of the subject articles. Initial 
written submissions and proposed remedial orders must be filed no later 
than close of business on Monday, November 18, 2019. Reply submissions 
must be filed no later than the close of business on Tuesday, November 
26, 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-
1130) 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 at (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 programs, personnel, and operations of 
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. 
government employees and contract

[[Page 60454]]

personnel,\2\ solely for cybersecurity purposes. All nonconfidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
---------------------------------------------------------------------------

    \2\ All contract personnel will sign appropriate nondisclosure 
agreements.
---------------------------------------------------------------------------

    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: November 4, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-24369 Filed 11-7-19; 8:45 am]
BILLING CODE 7020-02-P