[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Notices]
[Pages 69391-69392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27200]



[[Page 69391]]

=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1082]


Certain Gas Spring Nailer Products and Components Thereof;

Commission Determination To Review in Part a Remand Initial 
Determination Finding No Violation of Section 337; Request for Written 
Submissions on Remedy, Bonding, and the Public Interest

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``the Commission'') has determined to review in part a 
remand initial determination (``RID'') of the presiding administrative 
law judge (``ALJ'') finding no violation of section 337. The Commission 
is also requesting written submissions on remedy, bonding, and the 
public interest.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-2310. 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 November 20, 2017, based on a complaint filed on behalf of Kyocera 
Senco Brands Inc. (``Kyocera'') of Cincinnati, Ohio. 82 FR 55118-19 
(Nov. 20, 2017). The complaint, as amended and supplemented, alleges 
violations of section 337 of the Tariff Act of 1930, as amended, 19 
U.S.C. 1337, based upon the importation into the United States, the 
sale for importation, and the sale within the United States after 
importation of certain gas spring nailer products and components 
thereof by reason of infringement of certain claims of U.S. Patent Nos. 
8,011,547 (``the '547 patent''); 8,267,296 (``the '296 patent''); 
8,27,297 (``the '297 patent''); 8,387,718 (``the '718 patent''); 
8,286,722 (``the '722 patent''); and 8,602,282 (``the '282 patent''). 
The complaint further alleges the existence of a domestic industry. The 
Commission's notice of investigation named as a respondent Hitachi Koki 
U.S.A., Ltd. (``Hitachi'') of Braselton, Georgia. The Office of Unfair 
Import Investigations is not participating in the investigation. The 
'547 patent has been terminated from the investigation and the notice 
of investigation was amended to add claim 30 of the '297 patent to the 
investigation. Order No. 13 (June 4, 2018), unreviewed by Comm'n Notice 
(June 22, 2018); Order No. 15 (June 19, 2018), unreviewed by Comm'n 
Notice (July 9, 2018), 83 FR 32685-66 (July 15, 2018). Prior to the 
evidentiary hearing, the parties stipulated that the '718 patent is the 
only remaining patent at issue since no violation could be shown as to 
the '296, '297, '722, and '282 patents based on an evidentiary ruling 
limiting the scope of testimony of Kyocera's expert. See ID at 1-2.
    On June 7, 2019, the ALJ issued a final ID finding no violation of 
section 337 as to the '718 patent based on non-infringement and the 
failure of Kyocera to establish the existence of a domestic industry 
that practices the '718 patent. Specifically, the ID finds that neither 
Hitachi's accused products nor Kyocera's domestic products satisfy the 
``system controller'' limitation of the asserted claims.
    On August 14, 2019, the Commission determined to review the ID and 
remand in part. See Comm'n Notice (Aug. 14, 2019). Specifically, the 
Commission determined to review the ID's finding that Kyocera did not 
establish: (1) Either direct or induced infringement of the asserted 
claims of the '718 patent; and (2) practice of the asserted claims by 
Kyocera's DI products to satisfy the domestic industry requirement. The 
Commission also determined to review the ID's finding that Kyocera 
demonstrated sufficient activities and investments relating to the 
articles protected by the '718 patent to satisfy the domestic industry 
requirement. Id. Also, the Commission remanded the issues of whether 
Kyocera has established, by a preponderance of the evidence, that: (1) 
The remaining limitations (irrespective of the ``system controller'' 
limitation) of the asserted claims of the '718 patent are met by 
Hitachi's accused products; (2) the remaining limitations of the 
asserted claims are practiced by Kyocera's domestic industry products; 
and (3) Hitachi induced infringement of the asserted claims. Id.
    On October 28, 2019, the ALJ issued the subject RID finding no 
violation of section 337 as to the '718 patent based on non-
infringement and the failure of Kyocera to establish the existence of a 
domestic industry that practices the '718 patent. Specifically, the RID 
finds that: (1) Neither Hitachi's accused products nor Kyocera's 
domestic industry (``DI'') products satisfy the ``displacement volume'' 
limitation (i.e., '' (A) a hollow cylinder comprising a cylindrical 
wall with a movable piston therewith, said hollow cylinder containing a 
displacement volume created by a stroke of said piston'') and the 
``initiating a driving cycle'' limitation (i.e., ``initiating a driving 
cycle by pressing said exit end against a workpiece and actuating said 
trigger, thereby causing said fastener driving mechanism to force the 
driver member to move toward said exit end and drive a fastener into 
said workpiece'') of the asserted claims and (2) Kyocera fails to 
establish that Hitachi possesses the requisite specific intent to 
induce infringement of the claims.
    On November 12, 2019, Kyocera petitioned, and Hitachi contingently 
petitioned, for review of the RID. On November 20, 2019, Kyocera and 
Hitachi each filed a response in opposition to the other party's 
petition for review.
    Having reviewed the record of the investigation, including the 
parties' briefing, the Commission has determined to review the subject 
RID in part. Specifically, the Commission has determined to review the 
RID's finding that Kyocera did not establish: (1) Direct infringement 
of the asserted claims with respect to the ``displacement volume'' and 
``initiating a driving cycle'' limitations; (2) practice of the 
asserted claims by its DI products with respect to these limitations; 
and (3) induced infringement of the asserted claims. The Commission has 
determined not to review the remainder of the RID.

[[Page 69392]]

    The Commission also requests that the parties brief the following 
questions on review:
    1. With respect to the economic prong of the domestic industry 
requirement, did the ID address the contextual analysis required by our 
precedent to determine if Kyocera's investments are significant? See, 
e.g., Certain Carburetors and Products Containing Such Carburetors, 
Inv. No. 337-TA-1123, Comm'n Op. at 17-19 (Oct. 28, 2019). If not, does 
the record evidence support a finding that Kyocera satisfies this 
requirement?
    2. Did Hitachi present any argument(s) concerning contextual 
analysis in its petition for review? If so, please identify the 
argument(s) and the relevant petition pages, evidence, and authorities 
cited on the issue.
    3. Does the RID's interpretation and application of the 
``initiating a driving cycle'' limitation exclude the embodiments 
depicted in Figures 1 and 16 of the '718 patent?
    Responses or replies to the briefing questions should not exceed 30 
pages.
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that results in the exclusion of the 
subject articles from entry into the United States, and/or (2) issue 
one or more cease and desist orders that could result in the respective 
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 (December 1994) 
(Commission Opinion).
    When 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 orders 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.
    When 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 section 337(j), 19 U.S.C. 
1337(j) and the 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. 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 on the issues under review that 
specifically address the Commission's questions set forth in this 
notice. The submissions should be concise and thoroughly referenced to 
the record in this investigation. Parties to the investigation, 
interested government agencies, and any other interested parties are 
encouraged to file written submissions on the issues of remedy, 
bonding, and the public interest. Such submissions should address the 
recommended determination by the ALJ on remedy and bonding.
    Complainant is also requested to submit proposed remedial orders 
for the Commission's consideration. Complainant is also requested to 
state the date that the asserted patent expires, the HTSUS numbers 
under which the accused products are imported, and to supply the names 
of known importers of the products at issue in this investigation. The 
responses to the questions on review, written submissions, and proposed 
remedial orders must be filed no later than close of business on 
January 3, 2020. Reply submissions must be filed no later than the 
close of business on January 10, 2020. 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 eight 
true paper copies to the Office of the Secretary 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-1082'') in a prominent place on the cover page and/or the 
first page. (See Handbook on 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 unless the information 
has already been granted such treatment during the proceedings. All 
such requests should be directed to the Secretary of the Commission and 
must include a full statement of the reasons why the Commission should 
grant such treatment. See 19 CFR 210.6. Documents for which 
confidential treatment by the Commission is 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,\1\ solely for 
cybersecurity purposes. All non-confidential written submissions will 
be available for public inspection at the Office of the Secretary and 
on EDIS.
---------------------------------------------------------------------------

    \1\ 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: December 12, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-27200 Filed 12-17-19; 8:45 am]
 BILLING CODE 7020-02-P