[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Notices]
[Pages 60071-60072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23547]



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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1213]


Certain Light-Emitting Diode Products, Fixtures, and Components 
Thereof; Commission Determination To Review in Part A Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions on Remedy, the Public Interest, and Bonding

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 review in part a 
final initial determination (``ID'') of the presiding administrative 
law judge (``ALJ'') finding a violation of section 337 by the accused 
products of respondent RAB Lighting Inc. (``RAB'') of Northvale, New 
Jersey. The Commission requests written submissions 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: 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 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 this investigation 
on August 17, 2020, based on a complaint filed on behalf of Ideal 
Industries Lighting LLC d/b/a Cree Lighting (``Cree'') of Durham, North 
Carolina. 85 FR 50047-48 (Aug. 17, 2020). The complaint, as 
supplemented, alleges violations of the Tariff Act of 1930, as amended, 
19 U.S.C. 1337 (``section 337''), based upon the importation into the 
United States, the sale for importation, and the sale within the United 
States after importation of certain light-emitting diode products, 
fixtures, and components thereof by reason of infringement of certain 
claims of U.S. Patent Nos. 8,403,531 (``the '531 patent''); 8,596,819 
(``the '819 patent''); 8,777,449 (``the '449 patent''); 9,261,270 
(``the '270 patent''); and 9,476,570 (``the '570 patent''). The 
complaint further alleges the existence of a domestic industry. The 
Commission's notice of investigation named RAB as the sole respondent. 
The Office of Unfair Import Investigations is not participating in the 
investigation. The Commission previously terminated the following 
claims from the investigation: (1) Claims 1-9 and 11-14 of the '449 
patent; (2) claims 3-12 of the '270 patent; and (3) claims 2, 6-9, and 
11-24 of the '570 patent. See Order No. 25 (May 5, 2021), unreviewed by 
Comm'n Notice (May 21, 2021).
    On August 17, 2021, the ALJ issued the final ID finding a violation 
of section 337 based on infringement of the asserted claims of the '270 
and '570 patents. The ID finds no violation of section 337 with respect 
to the '531 and '819 patents based on patent-ineligible subject matter, 
lack of enablement, and lack of written description. The ID also finds 
no violation with respect to the '449 patent. The ALJ recommended, 
should the Commission find a violation, issuing a limited exclusion 
order directed to RAB's infringing products and a cease and desist 
order directed to RAB and requiring a bond in the amount of five 
percent for importation of infringing articles during the Presidential 
review period.
    On September 2, 2021, RAB and Cree petitioned for review of certain 
aspects of the final ID. Specifically, (1) RAB petitions for review of 
the ID's findings regarding claim construction and invalidity with 
respect to the '270 patent and infringement with respect to the '570 
patent; and (2) Cree petitions for review of the ID's findings 
regarding invalidity and patent-ineligible subject matter with respect 
to the '531 and '819 patents. On September 13, 2021, RAB and Cree each 
filed a response in opposition to the other party's petition for 
review.
    The Commission received no public interest comments from the public 
in response to the Commission's Federal Register notice seeking comment 
on the public interest. 86 FR 47146-47 (Aug. 23, 2021). On September 
16, 2021, Cree and RAB submitted public interest comments pursuant to 
Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)).
    Having reviewed the record of the investigation, including the 
parties' briefing, the Commission has determined to review the final ID 
in part. Specifically, the Commission has determined to review the ID's 
finding that: (1) The asserted claims of the '531 and '819 patents are 
invalid due to patent-ineligible subject matter, lack of enablement, 
and lack of written description; and (2) the '819 patent is prior art 
to claims 1, 10-12, and 26 of the '531 patent. The Commission has 
determined not to review the remainder of the ID.
    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 a 
cease and desist order that could result in the 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, 
disapprove, or take no action on the Commission's determination. 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

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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, bonding, and the 
public interest. Such submissions should address the recommended 
determination by the ALJ on remedy and bonding.
    In its initial submission, Complainant is also requested to 
identify the remedy sought and to submit proposed remedial orders for 
the Commission's consideration. Complainant is further requested to 
state the date that the asserted patents expire, to provide the HTSUS 
subheadings under which the accused products are imported, and to 
supply the identification information for all known 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 November 8, 2021. Reply submissions must be filed 
no later than the close of business on November 15, 2021. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission. Opening submissions are limited to 25 pages. Reply 
submissions are limited to 20 pages. No further submissions on any of 
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-1213) 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 
25, 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 25, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-23547 Filed 10-28-21; 8:45 am]
BILLING CODE 7020-02-P