[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]
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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.
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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.
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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 (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.
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\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.
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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