[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Notices]
[Pages 72624-72625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27700]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1206]


Certain Percussive Massage Devices; Issuance of a General 
Exclusion Order and a Cease and Desist Order; Termination of the 
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to issue a general exclusion order (``GEO'') 
and a cease and desist order (``CDO'') directed to respondent Kinghood 
International Logistics Inc. (``Kinghood'') in the above-captioned 
investigation. The investigation is terminated in its entirety.

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, alleged 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 U.S. Design Patent Nos. D855,822 
and D886,317 (collectively, ``Asserted Design Patents'') and claims 1-
9, 14, and 15 of U.S. Patent No. 10,561,574 (``the '574 patent''). The 
complaint further alleged that a domestic industry exists. The 
Commission's notice of investigation named 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 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 of Lorton, Virginia; Massimo Motor 
Sports, LLC (``Massimo'') of Garland, Texas; and Addaday LLC 
(``Addaday'') of Santa Monica, California. The notice of investigation 
also named the Office of Unfair Import Investigations (``OUII'') as a 
party.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 (Sept. 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

[[Page 72625]]

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 Patents for 
lack of standing. Hyperice filed a timely petition for review of Order 
No. 39 and OUII filed a response to the petition.
    On November 22, 2021, the Commission determined to review in part 
Order No. 39 and, on review, affirm with modifications the ALJ's denial 
of limited relief under section 337(g)(1) as to the Defaulting 
Respondents. The Commission adopted Order No. 39's finding that 
Hyperice lacked standing to assert the Asserted Design Patents in this 
investigation. Accordingly, the Commission terminated the Asserted 
Design Patents from the investigation.
    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 recommended the issuance of a 
GEO and a CDO against Kinghood and setting the bond during the period 
of Presidential review in the amount of one hundred percent (100%) of 
the entered value.
    On October 20, 2021, the Commission determined to review the ID in 
part and requested briefing on one issue it determined to review, and 
on remedy, the public interest, and bonding. 86 FR 59187 (Oct. 26, 
2021). Specifically, the Commission determined to review the ID's 
finding that Hyperice satisfied the economic prong of the domestic 
industry requirement with respect to the '574 patent. The Commission 
adopted 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 adopted the ID's finding that there is insufficient 
evidence of importation of Kula's accused products. On November 3, 
2021, Hyperice and OUII filed their initial written submissions 
regarding the issue on review, and on remedy, the public interest, and 
bonding. OUII further filed a response brief on November 10, 2021.
    Having examined the record of this investigation, including the ID 
and the submissions received, the Commission has determined to affirm 
the ID's finding that Hyperice satisfied the economic prong of the 
domestic industry requirement as to the '574 patent.\2\ Accordingly, 
the Commission finds a violation of section 337 as to respondents 
Kinghood, Manybo, Shenzhen Infein, and Hong Kong Yongxu with respect to 
the '574 patent.
---------------------------------------------------------------------------

    \2\ Chair Kearns does not join his colleagues in finding the 
economic prong requirement met under section 337(a)(3)(B), and 
therefore does not find a violation of section 337.
---------------------------------------------------------------------------

    The Commission has determined that the appropriate remedy in this 
investigation is: (1) A GEO prohibiting the unlicensed importation of 
therapeutic handheld percussive massage devices for applying percussive 
massage to a person's body that infringe one or more of claims 1-7, 9, 
14, and 15 of the '574 patent; and (2) a CDO prohibiting respondent 
Kinghood from further importing, selling, and distributing infringing 
products in the United States. The Commission has also determined that 
the public interest factors enumerated in paragraphs 337(d)(1) and 
(f)(1), 19 U.S.C. 1337(d)(1) and (f)(1), do not preclude issuance of 
these remedial orders. Finally, the Commission has determined that the 
bond during the period of Presidential review pursuant to 19 U.S.C. 
1337(j) shall be in the amount of one hundred percent (100%) of the 
entered value of the imported articles. The Commission's order was 
delivered to the President and to the United States Trade 
Representative on the day of its issuance. The investigation is hereby 
terminated.
    Commissioners Karpel and Schmidtlein would issue CDOs directed to 
respondents Kinghood, Manybo, Shenzhen Infein, Kula, and Hong Kong 
Yongxu pursuant to 19 U.S.C. 1337(g)(1).
    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 December 
16, 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: December 16, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-27700 Filed 12-21-21; 8:45 am]
BILLING CODE 7020-02-P