[Federal Register Volume 85, Number 237 (Wednesday, December 9, 2020)]
[Notices]
[Pages 79217-79218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27010]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1118]


Certain Movable Barrier Operator Systems and Components Thereof; 
Final Determination Finding a Violation of Section 337; Issuance of a 
Limited Exclusion Order and Cease and Desist Orders; Termination of the 
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 (the ``Commission'') has determined to: (1) Find that 
respondents Nortek Security & Control, LLC of Carlsbad, California; 
Nortek, Inc. of Providence, Rhode Island; and GTO Access Systems, LLC 
of Tallahassee, Florida (collectively, ``Nortek'') have violated 
Section 337 by way of infringing claims 1 and 21 of U.S. Patent No. 
7,755,223 (``the '223 patent''); and (2) issue a limited exclusion 
order and cease and desist orders against each Nortek respondent, and 
set a bond in the amount of 100 percent of the entered value of the 
covered products during the period of Presidential review. The 
investigation is hereby terminated.

FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2382. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket system (``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: The Commission instituted this investigation 
on June 11, 2018, based on a complaint, as supplemented, filed by The 
Chamberlain Group, Inc. (``CGI'') of Oak Brook, Illinois. 83 FR 27020-
21 (June 11, 2018). The complaint alleges a violation of section 337 
the Tariff Act, as amended, 19 U.S.C. 1337 (``Section 337'') in the 
importation, sale for importation, or sale in the United States after 
importation of certain movable barrier operator (``MBO'') systems that

[[Page 79218]]

purportedly infringe one or more of the asserted claims of the '223 
patent and U.S. Patent Nos. 8,587,404 (``the '404 patent'') and 
6,741,052 (``the '052 patent''). Id. The Commission's notice of 
investigation named Nortek as respondents. Id. The Office of Unfair 
Import Investigations was not named as a party to this investigation. 
See id.
    The Commission subsequently terminated the investigation with 
respect to certain patent claims withdrawn by CGI. See Order No. 16 
(Feb. 5, 2019), unreviewed by Comm'n Notice (March 6, 2019); Order No. 
27 (June 7, 2019), unreviewed by Comm'n Notice (June 27, 2019); Order 
No. 31 (July 30, 2019), unreviewed by Comm'n Notice (Aug. 19, 2019); 
Order No. 32 (Sept. 27, 2019), unreviewed by Comm'n Notice (Oct. 17, 
2019).
    On June 5, 2019, the presiding administrative law judge (``ALJ'') 
issued a Markman order (Order No. 25) construing the claim terms in 
dispute.
    On December 12, 2018, CGI filed a motion for summary determination 
that it satisfied the economic prong of the domestic industry 
requirement. Nortek opposed the motion. On June 6, 2019, the ALJ issued 
a notice advising the parties that the motion would be granted and a 
formal written order would be issued later. Order No. 26 (June 6, 
2019).
    The ALJ held an evidentiary hearing on the issues in dispute on 
June 10-14, 2019.
    On November 25, 2019, the ALJ issued Order No. 38, finding no issue 
of material fact that CGI's investments in labor and capital relating 
to its domestic industry products were ``significant'' and that CGI has 
satisfied the economic prong of the domestic industry requirement 
pursuant to Section 337(a)(3)(B) (19 U.S.C. 1337(a)(3)(B)). Order No. 
38 (Nov. 25, 2019). Order No. 38 also finds that genuine issues of 
material fact precluded entry of summary determination with respect to 
CGI's investments in plant and equipment, under Section 337(a)(3)(A) 
(19 U.S.C. 1337(a)(3)(A)). Id.
    On the same date, the ALJ issued the final Initial Determination on 
Violation of Section 337 (``Final ID'') and Recommended Determination 
on Remedy and Bond (``RD''), finding no violation of Section 337 
because the asserted claims of the '223 and '404 patents, if valid, are 
not infringed and the asserted claim of the '052 patent is invalid, 
even if infringed. The RD sets forth the ALJ's recommendations on 
remedy and bond.
    On February 19, 2020, the Commission issued a notice of its 
determination to review Order No. 38 and to partially review the Final 
ID with respect to certain issues relating to each of the three 
asserted patents. 85 FR 10723-26 (Feb. 25, 2020). The Commission 
directed the parties to brief questions on violation and requested 
briefing from the parties, the public, and any interested government 
entities on remedy, the public interest, and bonding. Id. at 10725. The 
parties submitted initial responses and replies in response to the 
notice. The Commission did not receive any comments from third parties 
in response to its notice.
    On April 22, 2020, the Commission issued a determination finding no 
violation with respect to the '404 and '052 patents. Comm'n Notice at 3 
(April 22, 2020). The Commission also vacated Order No. 38 and remanded 
the economic prong issue to the presiding ALJ for further proceedings 
while the Commission continued to review issues relating to the '223 
patent. Id.; Order Vacating and Remanding Order No. 38 (April 22, 2020) 
(``Remand Order'').
    On May 15, 2020, the ALJ issued Order No. 39, seeking additional 
information from the parties in light of the Commission's Remand Order. 
Order No. 39 (May 15, 2020). On July 10, 2020, the ALJ issued the 
subject Remand Initial Determination (``Remand ID''), finding that CGI 
has made significant investments, both quantitatively and 
qualitatively, in plant and equipment and labor and capital, pursuant 
to Section 337(a)(3)(A) and (B) (19 U.S.C. 1337(a)(3)(A), (B)), 
respectively. Remand ID (July 10, 2020). The Remand ID concludes that 
CGI has satisfied the economic prong of the domestic industry 
requirement in relation to the '223 patent, pursuant to Sections 
337(a)(3)(A) and (B). Id.
    On July 20, 2020, Nortek filed a petition for review of the Remand 
ID. CGI filed its opposition to Nortek's petition for review on July 
27, 2020. On September 9, 2020, the Commission determined to review the 
Remand ID and directed the parties to brief a number of questions with 
respect to the economic prong of the domestic industry requirement. 85 
FR 57249-51 (Sept. 15, 2020). The Commission also allowed the parties 
to update their prior submissions on remedy, the public interest, and 
bonding, if necessary, and invited interested government entities and 
other interested parties to file written submissions on those issues as 
well. Id. at 57251.
    The parties filed their initial responses to the Commission's 
questions on September 23, 2020. The parties filed their respective 
replies on September 30, 2020. The Commission did not receive any 
comments from third parties in response to its notice.
    Having reviewed the Remand ID, the parties' submissions, and the 
evidence of record, the Commission has determined to find that Nortek 
violated Section 337 with respect to the '223 patent. In particular, 
the Commission finds that Nortek infringed claims 1 and 21 of the '223 
patent; CGI practiced at least claim 1 of the patent; and CGI satisfied 
the economic prong of the domestic industry requirement with respect to 
the '223 patent under both Sections 337(a)(3)(A) and (B). The 
Commission has determined to issue a limited exclusion order and cease 
and desist orders against each Nortek respondent and to impose a bond 
in the amount of 100 percent of the entered value of the covered 
products during the period of Presidential review. The Commission has 
further determined that the statutory public interest factors do not 
preclude issuance of a remedy. The investigation is hereby terminated.
    The Commission voted to approve these determinations on December 3, 
2020.
    The authority for the Commission's determinations 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 3, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-27010 Filed 12-8-20; 8:45 am]
BILLING CODE 7020-02-P