[Federal Register Volume 86, Number 204 (Tuesday, October 26, 2021)]
[Notices]
[Pages 59187-59189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23267]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1206]


Certain Percussive Massage Devices; Commission Determination To 
Review in Part an Initial Determination Granting in Part a Motion for 
Summary Determination and Finding a Violation of Section 337; Schedule 
for Filing Written Submissions

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 review in part an initial determination 
(``ID'') (Order No. 40) of the presiding administrative law judge 
(``ALJ'') granting in part complainant's motion for summary 
determination and finding a violation of section 337. The Commission 
requests written submissions from the parties on an issue under review, 
and requests briefing from the parties, interested government agencies, 
and other interested persons on the issues of remedy, the public 
interest, and bonding, under the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Cathy Chen, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2392. 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 
on (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on July 22, 2020, based on a complaint filed on behalf of Hyper Ice, 
Inc. (``Hyperice'') of Irvine, California. 85 FR 44322 (July 22, 2020). 
The complaint, as supplemented, alleges 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, or the sale within 
the United States after importation of certain percussive massage 
devices by reason of infringement of certain claims of U.S. Patent No. 
10,561,574 (``the '574 patent''); U.S. Design Patent No. D855,822; and 
U.S. Design Patent No. D886,317 (collectively, ``Asserted Design 
Patents''). The complaint further alleges that a domestic industry 
exists. The Commission's notice of investigation names the following 
nineteen respondents: Laiwushiyu Xinuan Trading Company of Shandong 
District, China; Shenzhen Let Us Win-Win Technology Co., Ltd. of 
Guangdong, China; Shenzhen Qifeng Technology Co., Ltd. of Guangdong, 
China; Shenzhen QingYueTang E-commerce Co., Ltd. of Guangdong, China; 
and Shenzhen Shiluo Trading Co., Ltd. of Guangdong, China 
(collectively, the ``Unserved Respondents''); Kinghood International 
Logistics Inc. (``Kinghood'') of La Mirada, California; Manybo 
Ecommerce Ltd. (``Manybo'') of Hong Kong, China; Shenzhen Infein 
Technology Co., Ltd. (``Shenzhen Infein'') of Guangdong, China; Hong 
Kong Yongxu Capital Management Co., Ltd. (``Hong Kong Yongxu'') of Hong 
Kong, China; Kula eCommerce Co., Ltd. (``Kula'') of Guangdong, China; 
Performance Health Systems, LLC (``Performance Health'') of Northbrook, 
Illinois; Rechar, Inc. (``Rechar'') of Strasburg, Colorado; Ning Chen 
of Yancheng, Jiangsu China; Opove, Ltd. (``Opove'') of Azusa, 
California; Shenzhen Shufang E-Commerce Co., Ltd. (``Shufang E-
Commerce'') of Shenzhen, China; Fu Si (``Shenzhen Fusi Technology'') of 
Guangdong, China; \1\ WODFitters (``WODFitters'') Lorton, Virginia; 
Massimo Motor Sports, LLC (``Massimo'') of Garland, Texas; and Addaday 
LLC (``Addaday'') of Santa Monica, California. The notice of 
investigation also names the Office of Unfair Import Investigations 
(``OUII'') as a party.
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    \1\ Respondent Fu Si's full name is Shenzhen Fusi Technology 
Co., Ltd. See Response of Opove Ltd., Shenzhen Shufang E-Commerce 
Co., Ltd., and Fu Si to the Complaint and Notice of Investigation at 
] 40, EDIS Doc ID 716966 (Aug. 11, 2020). The principal place of 
business of Shenzhen Fusi Technology Co., Ltd. was changed to 14E, 
Building A, Guanghao International Center, No. 441 Meilong Road, 
Minzhi Street, Longhua District, Shenzhen, China, 518131 effective 
September 15, 2020. Id.
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    On October 16, 2020, the Commission determined not to review Order 
No. 11 granting motions to intervene by third parties Shenzhen Xinde 
Technology Co., Ltd. (``Xinde'') and Yongkang Aijiu Industrial & Trade 
Co., Ltd. (``Aijiu'') in the investigation. See Order No. 11 (Sept. 25, 
2020), unreviewed by Comm'n Notice (Oct. 16, 2020).
    Respondents Addaday, WODFitters, Massimo, Performance Health, 
Rechar, Ning Chen, Opove, Shufang E-Commerce, Xinde, Aijiu, and 
Shenzhen Fusi Technology were terminated from the investigation based 
upon settlement agreements. See Order No. 10 (Sep. 16, 2020), 
unreviewed by Comm'n Notice (Oct. 15, 2020); Order No. 12 (Nov. 4, 
2020), unreviewed by Comm'n Notice (Nov. 20, 2020); Order No. 30 (Apr. 
8, 2021), unreviewed by Comm'n Notice (Apr. 22, 2021).
    The Unserved Respondents were terminated from the investigation 
based upon withdrawal of the Complaint. See Order No. 36 at 2 (Aug. 3, 
2021) unreviewed by Comm'n Notice (Aug. 19, 2021).
    Respondents Kinghood, Manybo, Shenzhen Infein, Hong Kong Yongxu, 
and Kula (collectively, ``the Defaulting Respondents'') were found in 
default. See Order No. 17 (Dec. 17. 2020), unreviewed by Comm'n Notice 
(Jan. 5, 2021).
    On May 6, 2021, OUII filed a motion to terminate the Asserted 
Design Patents from this investigation on the ground that Hyperice did 
not have sufficient rights to the design patents at the time the 
investigation was instituted. On May 17, 2021, Hyperice filed its 
response in opposition to OUII's motion to terminate, which included a 
cross-motion to amend the Complaint to reflect proper inventorship.
    On May 7, 2021, Hyperice filed a motion for summary determination 
that the Defaulting Respondents have violated section 337 for 
infringing its three asserted patents. On May 14, 2021, Hyperice 
supplemented its motion with additional declarations. On May 20, 2021, 
Hyperice again supplemented its motion with claim charts and exhibits. 
OUII filed a response in support of the motion with respect to the '574 
patent but not with respect to the asserted design patents.
    On August 17, 2021, the ALJ issued Order No. 38 denying Hyperice's 
motion to amend the complaint and the notice of investigation to 
reflect proper inventorship. That same day, the ALJ issued Order No. 39 
granting OUII's motion to terminate the Asserted Design

[[Page 59188]]

Patents for lack of standing. Hyperice filed a timely petition for 
review of Order No. 39 and OUII filed a response to the petition. 
November 12, 2021 is the date by which the Commission must determine 
whether to review Order No. 39.
    On August 20, 2021, the ALJ issued the subject ID (Order No. 40) 
granting in part Hyperice's motion for summary determination of 
violation of section 337. Specifically, the ID found: (1) That Hyperice 
established the importation requirement as to Defaulting Respondents 
Kinghood, Manybo, Shenzhen Infein, and Hong Kong Yongxu, but not Kula; 
(2) that Defaulting Respondents Kinghood, Manybo, Shenzhen Infein, and 
Hong Kong Yongxu infringe one or more of claims 1-7, 9, 14, and 15 of 
the '574 patent; (3) that Hyperice's domestic industry products 
practice at least one claim of the '574 patent; and (4) that Hyperice 
has proven that a domestic industry exists within the United States 
related to articles protected by that patent. Accordingly, the ALJ 
found that four of the five Defaulting Respondents have infringed one 
or more of claims 1-7, 9, 14, and 15 of the '574 patent in violation of 
section 337. No petitions for review of the ID were filed.
    The ALJ concurrently issued a Recommended Determination (``RD'') on 
the issues of remedy and bonding. The RD recommends the issuance of a 
general exclusion order and a cease and desist order and setting the 
bond during the period of Presidential review in the amount of one 
hundred percent (100%) of the entered value.
    Having reviewed the record of the investigation, including the 
subject ID and the parties' submissions to the ALJ, the Commission has 
determined to review in part the ID. Specifically, the Commission has 
determined to review the ID's finding that Hyperice has satisfied the 
economic prong of the domestic industry requirement with respect to the 
'574 patent. The Commission adopts the ID's findings that Hyperice 
provided undisputed evidence that Kinghood's, Manybo's, and Shenzhen 
Infein's accused products infringe claims 1-7, 9, 14 and 15 of the 574 
patent and that Hong Kong Yongxu's accused products infringe claims 1-
7, 14 and 15 of the 574 patent. Although Hyperice provided undisputed 
evidence that Kula's accused products infringe claims 1-7, 9, 14 and 15 
of the 574 patent, the Commission adopts the ID's finding that there is 
insufficient evidence of importation of Kula's accused products.
    The parties are requested to brief their positions on only the 
following issue under review.
    (1) Please explain whether Complainant's asserted domestic industry 
differs from that of a mere importer, including by discussing the 
claimed expenditures and how the Commission and the Federal Circuit 
have considered such expenditures in prior investigations. In answering 
this question, please address the extent to which the activities relied 
upon to show satisfaction of the economic prong need to take place in 
the United States either as a legal or a practical matter.
    (2) Please explain the nature and significance of Complainant's 
employment of labor or capital in the United States with respect to 
articles protected by the '574 patent.
    (3) Please provide, to the extent permitted by the record, a 
breakout of the claimed allocated expenditures by type of activities, 
in particular (but not limited to) research and development, design, 
product engineering, supply chain and operation management, customer 
service, sales, marketing, and repair and warranty work.
    (4) Please discuss whether Complainant's asserted domestic industry 
investments are significant under section 337(a)(3)(B) in light of 
Commission and Federal Circuit precedents. Please include in your 
response a contextual, quantitative discussion, including a discussion 
of Complainants' foreign investments and expenditures relative to its 
domestic industry expenditures in these statutory categories, and/or a 
discussion of the value added to the product from Complainant's 
activities in the United States. Please also include in your response a 
discussion of any other quantitative and qualitative analysis of the 
significance of the domestic industry's employment of labor or capital 
under section 337(a)(3)(B).
    (5) Please explain how Complainant's domestic workforce contributes 
to establishing an industry in the United States.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of, inter alia, (1) an exclusion order that 
could result in the exclusion of the subject articles from entry into 
the United States; and/or (2) cease and desist orders that could result 
in the respondents 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).
    The statute requires the Commission to consider the effects of that 
remedy upon the public interest. The public interest factors the 
Commission will consider include the effect that an exclusion order 
and/or a 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, 
disapprove, or take no action on the Commission's determination. 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: 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.
    In their initial submissions, Complainant is also requested to 
identify the remedy sought and Complainant and OUII are requested to 
submit proposed remedial orders for the Commission's consideration. 
Complainant is further requested to state the date that the Asserted 
Patent expires, to provide the HTSUS subheadings under which the 
accused products are imported and to supply the identification 
information for all known

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importers of the products at issue in this investigation. The initial 
written submissions and proposed remedial orders must be filed no later 
than close of business on Wednesday, November 3, 2021. Reply 
submissions must be filed no later than the close of business on 
Wednesday, November 10, 2021. 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. The 
Commission's paper filing requirements in 19 CFR 210.4(f) are currently 
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1206) 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, (202) 205-2000.
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment by marking each document 
with a header indicating that the document contains confidential 
information. This marking will be deemed to satisfy the request 
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) 
& 210.5(e)(2)). Documents for which confidential treatment by the 
Commission is properly 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, solely for cybersecurity purposes. 
All contract personnel will sign appropriate nondisclosure agreements. 
All nonconfidential written submissions will be available for public 
inspection on EDIS.
    The Commission vote for this determination took place on October 
20, 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: October 20, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-23267 Filed 10-25-21; 8:45 am]
BILLING CODE 7020-02-P