[Federal Register Volume 86, Number 73 (Monday, April 19, 2021)]
[Notices]
[Pages 20408-20409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07966]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-567 (Advisory Opinion Proceeding 2)]


Certain Foam Footwear; Notice of the Issuance of an Advisory 
Opinion; Termination of the Advisory Opinion Proceeding

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 issue an advisory opinion in the above-
captioned investigation. The Commission also terminates the advisory 
opinion proceeding.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, 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 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: The Commission instituted the underlying 
investigation on May 11, 2006, based on a complaint, as amended, filed 
by Crocs, Inc. (``Crocs'') of Niwot, Colorado. 71 FR 27514-15 (May 11, 
2006). The complaint alleged, inter alia, violations of section 337 of 
the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation 
into the United States, the sale for importation, and the sale within 
the United States after importation of certain foam footwear, by reason 
of infringement of claims 1-2 of U.S. Patent No. 6,993,858 (``the '858 
patent'') and U.S. Patent No. D517,789 (``the '789 patent''). The 
notice of investigation named several respondents, including Double 
Diamond Distribution Ltd. (``Double Diamond'') of Saskatoon, Canada.
    On July 25, 2008, the Commission issued a final determination 
finding no violation of section 337. 73 FR 45073-74 (Aug. 1, 2008). On 
July 15, 2011, after an appeal to the U.S. Court of Appeals for the 
Federal Circuit and subsequent

[[Page 20409]]

remand vacating the Commission's previous finding of no violation, the 
Commission found a violation of section 337 based on infringement of 
the asserted claims of the patents and issued a general exclusion order 
(``GEO'') and, inter alia, a cease and desist order (``CDO'') directed 
against Double Diamond. 76 FR 43723-24 (July 21, 2011).
    On March 28, 2020, the '789 patent expired. Accordingly, the GEO 
and CDO, by their terms, are only directed to articles that infringe 
one or more of claims 1 and 2 of the '858 patent. On December 8, 2020, 
Double Diamond submitted a request for institution of an expedited 
advisory opinion proceeding to determine whether its new Original Beach 
DAWGSTM shoes with plastic washers are subject to the GEO or 
CDO. On December 18, 2020, Crocs opposed Double Diamond's request for 
an expedited advisory opinion proceeding. On December 22, 2020, Double 
Diamond moved for leave to file a reply to Crocs' opposition, and on 
December 23, 2020, Crocs responded to Double Diamond's motion for leave 
to reply.
    On January 7, 2021, the Commission instituted an advisory opinion 
proceeding to determine whether Double Diamond's new Original Beach 
DAWGSTM shoes with plastic washers fell within the scope of 
the GEO or CDO. 86 FR 2696 (January 13, 2021). Concurrent with the 
notice, the Commission ordered supplemental information and a product 
sample from Double Diamond. Comm'n Order (Jan. 7, 2021). On January 14, 
2021, Double Diamond submitted its response to the Commission Order. On 
January 28, 2021, Crocs submitted its reply to Double Diamond's 
submission.
    Having considered the record evidence including the parties' 
filings, the Commission has determined that Double Diamond's new 
Original Beach DAWGSTM shoes with permanent plastic washers 
that prevent all direct contact between the strap and the base of the 
shoe do not fall within the scope of the GEO or CDO and therefore 
should not be excluded. The reasons for the Commission's determination 
are set forth in the accompanying Advisory Opinion, and the advisory 
opinion proceeding is hereby terminated.
    The Commission vote for this determination took place on April 13, 
2021.
    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: April 13, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-07966 Filed 4-16-21; 8:45 am]
BILLING CODE 7020-02-P