[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Notices]
[Pages 76599-76601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26277]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1174]
Certain Toner Cartridges, Components Thereof, and Systems
Containing Same Issuance of a General Exclusion Order and Cease and
Desist Orders; Termination of Investigation
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 affirmed a summary determination of violation of section
337 and has determined to issue (1) a general exclusion order (``GEO'')
denying entry of certain toner cartridges, components thereof, and
systems containing same; and (2) cease and desist orders (``CDOs'')
against 20 respondents (listed below). The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3179. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.usitc.gov. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD
terminal, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On September 23, 2019, the Commission
instituted this investigation based on a complaint filed by Brother
Industries, Ltd. of Nagoya Japan; Brother International Corp. (U.S.A.)
of Bridgewater, New Jersey; and Brother Industries (U.S.A.), Inc. of
Bartlett, Tennessee (collectively, ``Brother''). 84 FR 49762-63 (Sept.
23, 2019). The complaint alleged violations of section 337 based on the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain toner
cartridges, components thereof, and systems containing same by reason
of infringement of certain claims of U.S. Patent Nos. 9,568,856 (``the
'856 patent''); 9,575,460 (``the '460 patent''); 9,632,456 (``the '456
patent''); 9,785,093 (``the '093 patent''); and 9,846,387 (``the '387
patent'') (collectively, ``the Asserted Patents''). Id. The
Commission's notice of investigation named the following 32
respondents: AMI Brothers, Inc. of San Bruno, California (``AMI''); An
An Beauty Limited of Kowloon, Hong Kong (``An An Beauty''); Aster
Graphics, Inc. of Riverside, California (``Aster''); Aztech Enterprises
Limited of Kowloon, Hong Kong (``Aztech''); Billiontree Technology USA
Inc. of City of Industry, California (``Billiontree''); Carlos Imaging
Supplies, Inc. of Hacienda Heights, California (``Carlos''); Cartridge
Evolution, Inc. of Brooklyn, New York (``Cartridge Evolution''); Do it
Wiser, LLC of Wilmington, Delaware (``Do it Wiser''); Eco Imaging Inc.
of Irvine, California (``Eco Imaging''); Ecoolsmart Co. of Rowland
Heights, California (``Ecoolsmart''); EPrinter Solution LLC of Pomona,
California (``EPS''); E-Z Ink Inc. of Brooklyn, New York (``E-Z Ink'');
Globest Trading Inc. of Ontario, California (``Globest''); Greencycle
Tech, Inc. of South El Monte, California (``Greencycle''); Hongkong
Boze Co., Ltd. of Kowloon, Hong Kong (``Hongkong Boze''); I8
International, Inc. of City of Industry, California (``I8''); IFree E-
Commerce Co. of Kowloon, Hong Kong (``IFree''); Ikong E-Commerce of
Walnut, California (``Ikong''); Intercon International Corp. of Brea,
California (``Intercon''); IPrint Enterprise Limited of Kowloon, Hong
Kong (``IPrint''); LD Products, Inc. of Long Beach, California (``LD
Products''); Linkyo Corp. of La Puente, California (``Linkyo'');
Mangoket LLC of Alhambra, California (``Mangoket''); New Era Image LLC
of Corona, California (``New Era''); OW Supplies Corp. of Corona,
California (``OW Supplies''); Solong E-Commerce Co., LLC of Wan Chai,
Hong Kong (``Solong''); Smartjet E-Commerce Co., LLC of Wan Chai, Hong
Kong (``Smartjet''); Super Warehouse Inc. of Blaine, Washington
(``Super Warehouse''); Theresa Meng of Brooklyn, New York (``Ms.
Meng''); Triple Best LLC of San Diego, California (``Triple Best'');
V4ink, Inc. of Diamond Bar, California (``V4ink''); and Zhuhai Xiaohui
E-Commerce Co., Ltd. of Zhuhai, China (``Xiaohui''). Id. at 49762-63.
The notice of investigation also named the Office of Unfair Import
Investigations (``OUII'') as a party. Id. at 49763.
Of the 32 respondents, only one, Aster, is participating at this
stage. Aster, however, did not oppose the summary determination motion
of violation as to the accused products, even though Aster's products
are subject to the motion. See Joint Stipulation of Brother and Aster
for Resolution as to Aster in the Investigation (Mar. 4, 2020). EPS and
IFree were terminated from the investigation based upon withdrawal of
the complaint against them. See Order No. 32 (Jan. 28, 2020),
unreviewed by Comm'n Notice (Feb. 25, 2020). Cartridge Evolution, E-Z
Ink, Linkyo, New Era, OW Supplies, Ms. Meng, Triple Best, and V4ink
were terminated from the investigation based upon entry of consent
orders. See Order No. 36 (Mar. 12, 2020), unreviewed by Comm'n Notice
(Mar. 31, 2020); Order No. 38 (Mar. 12, 2020), unreviewed by Comm'n
Notice (Mar. 31, 2020); Order No. 37 (Mar. 12, 2020), unreviewed by
Comm'n Notice (Mar. 31, 2020); Order No. 10 (Oct. 18, 2019), unreviewed
by Comm'n Notice (Nov. 6, 2019); Order No. 17 (Nov. 21, 2019),
unreviewed by Comm'n Notice (Dec. 18, 2019); Order No. 28 (Dec. 30,
2019), unreviewed by Comm'n Notice (Jan. 29, 2020); Order No. 18 (Nov.
27, 2019), unreviewed by Comm'n Notice (Dec. 18, 2019); Order No. 33
(Fe. 3, 2020), unreviewed by Comm'n Notice (Mar. 4, 2020). The
following 21 respondents defaulted: AMI, Globest, An An Beauty, Aztech,
Xiaohui, Ecoolmart, Greencycle, Intercon, Do it Wiser, I8, Solong,
Billiontree, Carlos Imaging, Eco Imaging, Hongkong Boze, Ikong, IPrint,
Mangoket, Smartjet, Super Warehouse, and LD Products (collectively,
``Defaulting Respondents''). See Order No. 35 (Mar. 5, 2020),
unreviewed by Comm'n Notice (Mar. 19, 2020); Order No. 31 (Jan. 22,
[[Page 76600]]
2020), unreviewed by Comm'n Notice (Feb. 21, 2020); Order No. 26 (Dec.
20, 2019), unreviewed by Comm'n Notice (Jan 16, 2020); Order No. 25
(Dec. 18, 2019), unreviewed by Comm'n Notice (Jan. 16, 2020); Order No.
24 (Dec. 18, 2019), unreviewed by Comm'n Notice (Jan. 16, 2020); Order
No. 8 (Oct. 15, 2019), unreviewed by Comm'n Notice (Nov. 7, 2019).
On March 12, 2020, Brother filed a motion for summary determination
of violation of section 337 by Aster and the Defaulting Respondents and
for a recommendation that the Commission issue a GEO and CDOs. See
Complainants' Motion for Summary Determination of Violation and for
Recommended Determination on Remedy and Bonding. On March 23, 2020,
OUII filled a response in support of Brother's motion. See Commission
Investigative Staff's Response to Brother's Motion for Summary
Determination of Violation. No respondent filed a response to Brother's
motion. Id.
On July 23, 2020, the presiding administrative law judge (``ALJ'')
issued an initial determination (``ID'') (Order No. 40) granting
Brother's motion for summary determination on violation of section 337
and issued a recommended determination (``RD'') on remedy and bonding.
The ID found that the Commission has subject matter jurisdiction over
the investigation. ID at 34. The ID further found that none of the
respondents contest the Commission's personal jurisdiction over them or
in rem jurisdiction as to the accused products. ID at 34-35. The ID
found that Brother: (1) Established the importation requirement as to
Aster and Defaulting Respondents, ID at 36-79; (2) demonstrated that
the accused products infringe the asserted claims, id. at 118-133; and
(3) demonstrated that the domestic industry (``DI'') products practice
at least one claim of each Asserted Patent and that a DI exists in the
United States, id. at 84-118. The RD recommended issuance of a general
exclusion order (``GEO'') (or, in the alternative, a limited exclusion
order directed to Aster and each of the Defaulting Respondents). RD at
134-44. The RD further recommended issuance of cease and desist orders
(``CDOs'') directed to Aster and each defaulting respondent that has
domestic operations. Id. at 144-46. The RD also recommended setting
different bond rates for entry of the different products covered by the
GEO during the period of Presidential review. Id. at 146-48
(recommended bond rate table at 147). No one petitioned for review of
the ID.
On August 24, 2020, Aster filed a public interest statement in
response to the Commission's notice soliciting public interest comments
pursuant to 19 CFR 210.50(a)(4)(i). In its submission, Aster argued
that any Commission remedial orders issued in this investigation should
not cover its new products pursuant to its stipulation with Brother.
See Respondent Aster Graphics, Inc.'s Statement of Public Interest. On
August 26, 2020, Brother filed a response. See Complainants' Motion to
Strike Aster Graphics, Inc.'s Statement on the Public Interest for
Failure to Comply with Commission Rule 210.15 Or, in the Alternative,
for Leave to Respond.
On September 8, 2020, the Commission determined not to review the
ID and requested written submissions on remedy, the public interest,
and bonding. 85 FR 56628-31 (Sept. 14, 2020). The Commission rejected
Aster's August 24, 2020 public interest submission as improper under 19
CFR 210.50(a)(4)(i). Id. at 56630. The Commission noted that while 19
CFR 210.50(a)(4)(i) provides that parties may file information with the
Commission relating to the public interest, Aster's submission
concerned the scope of the remedy and thus did not fall within the
ambit of the public interest submissions provided for under 19 CFR
210.50(a)(4)(i). Id. The Commission stated that ``Aster will have an
opportunity to raise its arguments regarding the scope of any remedial
orders in a remedy submission before the Commission in response to the
instant notice, which invites parties to file submissions addressing
remedy, bonding and the public interest as noted below.'' Id.
On September 22, 2020, Brother, Aster, and OUII filed initial
submissions in response to the Commission's request. See Complainants'
Submission on Remedy, the Public Interest, and Bonding; Respondent
Aster Graphics, Inc.'s Submission on Remedy, the Public Interest and
Bonding; Response of the Office of Unfair Import Investigations to the
Commission's Request for Written Submissions Regarding Remedy, the
Public Interest, and Bonding. On September 29, 2020, the parties filed
reply submissions. See Complainants' Reply Submission on Remedy, the
Public Interest, and Bonding; \1\ Respondent Aster Graphics, Inc.'s
Reply to the Submission of the Office of Unfair Import Investigations
and Complainants on Remedy, the Public Interest and Bonding; Reply of
the Office of Unfair Import Investigations to the Private Parties'
Written Submissions Regarding Remedy, the Public Interest, and Bonding.
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\1\ The Chair granted Brother's motion for leave to file one day
late. Brother filed on time but inadvertently omitted to include the
certificate of service. Brother corrected the omission the next day.
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As noted above, the Commission affirmed the ID's finding that there
is a violation of section 337 with respect to Aster and Defaulting
Respondents. The Commission also finds that the statutory requirements
for issuance of a GEO under section 337(d)(2) are met. See 19 U.S.C.
1337(d)(2). The Commission further finds that issuance of CDOs against
Aster and 19 of the defaulting respondents (noted below) is appropriate
under section 337(f)(1). See 19 U.S.C. 1337(f)(1). In addition, the
Commission finds that the public interest factors do not preclude
issuance of the requested relief. See 19 U.S.C. 1337(d)(1), (f)(1).
The Commission therefore has determined that the appropriate remedy
in this investigation is: (1) A GEO prohibiting the unlicensed
importation of certain toner cartridges, components thereof, and
systems containing same that infringe one or more of claims 1-5, 10,
and 12-15 of the '093 patent; claims 1, 7-11, 15, and 16 of the '460
patent; claims 1-7, and 9 of the '856 patent; claims 1, 4, 5, and 9 of
the '456 patent; and claims 1, 3, 5, 7-12, and 18 of the '387 patent;
and (2) CDOs directed to Aster, AMI, Billiontree, Carlos Imaging, Do It
Wiser, Eco Imaging, Ecoolmart, Globest, Greencycle, Hongkong Boze, I8,
Ikong, Intercon, IPrint, LD Products, Mangoket, Smartjet, Solong, Super
Warehouse, and Xiaohui. The Commission has also determined that the
bond during the period of Presidential review shall be in the amount of
the following percentages of the entered value for respondents AMI,
Aster, and Globest:
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AMI Aster Globest
Infringing products (%) (%) (%)
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Accused 221/225 Products....................... 568 1463 900
Accused 223/227 Products....................... 274 336 372
Accused 420/450 Products....................... ...... 623 682
Accused 630/660 Products....................... 575 886 635
Accused 730/760/770 Products................... 589 354 369
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The bond for all other infringing articles shall be in the amount
of one hundred percent (100%) of the entered value.
The Commission's orders were delivered to the President and to the
[[Page 76601]]
United States Trade Representative on the day of their issuance. The
investigation is terminated.
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant complete service for any party
without a method of electronic service noted on the attached
Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
The Commission vote for this determination took place on November
23, 2020.
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 23, 2020.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2020-26277 Filed 11-27-20; 8:45 am]
BILLING CODE 7020-02-P