[Federal Register Volume 87, Number 51 (Wednesday, March 16, 2022)]
[Notices]
[Pages 14906-14907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05504]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1228]


Certain Automated Storage and Retrieval Systems, Robots, and 
Components Thereof; Notice of a Commission Determination To Review in 
Part a Final Initial Determination and Order No. 33; and, on Review, To 
Find No Violation of Section 337 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 review in part the presiding 
administrative law judge's (``ALJ'') final initial determination 
(``ID'') issued on December 13, 2021, finding no violation of section 
337, and Order No. 33 (``Markman Order''), issued on July 22, 2021, in 
the above-referenced investigation. On review, the Commission has 
determined to find no violation of section 337. 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 November 6, 2020, based on a complaint filed on behalf of AutoStore 
Technology AS of Norway; AutoStore AS of Norway; and AutoStore System 
Inc. of Derry, New Hampshire (collectively, ``Complainants''). 85 FR 
71096 (Nov. 6, 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, and the sale within the United States after importation of 
certain automated storage and retrieval systems, robots, and components 
thereof by reason of infringement of claims 1-6 of U.S. Patent No. 
10,093,525 (``the '525 patent''); claims 1 and 18-20 of U.S. Patent No. 
10,294,025 (``the '025 patent''); claims 1-4 and 11-15 of U.S. Patent 
No. 10,474,140 (``the '140 patent''); claims 1, 2, and 5-15 of U.S. 
Patent No. 10,494,239 (``the '239 patent''); and claim 19 of U.S. 
Patent No. 10,696,478 (``the '478 patent''). Id. The complaint further 
alleged that a domestic industry exists. Id. The Commission's notice of 
investigation named eight respondents: Ocado Group Plc; Ocado Central 
Services Ltd.; Ocado Innovation Ltd.; Ocado Operating Ltd.; Ocado 
Solutions, Ltd.; Tharsus Group Ltd.; and Printed Motor Works Ltd., all 
of the United Kingdom; and Ocado Solutions USA Inc. of Tysons Corner, 
Virginia (collectively, ``Respondents''). Id. at 71097. The Office of 
Unfair Import Investigations did not participate as a party in this 
investigation. Id.
    Respondent Printed Motor Works Ltd. was terminated from the 
investigation based on withdrawal of allegations in the complaint. See 
Order No. 19, at 1 (June 2, 2021), unreviewed by Comm'n Notice (June 
22, 2021).
    The asserted claims of the '140 patent and claims 1 and 18 of the 
'025 patent were terminated from the investigation. See Order No. 59 
(August 9, 2021), unreviewed by Comm'n Notice (Aug. 20, 2021). 
Complainants' allegations that Respondents' 500 series robot and 
redesigned 500 series robot infringe claims 19 and 20 of the '025 
patent were also terminated from the investigation. Id.
    The Markman Order, issued on July 22, 2021, construed claim terms 
from all five asserted patents. See Order No. 33 (July 22, 2021). The 
Markman Order found claims 2 and 3 of the '525 patent and claims 5, 6, 
14, and 15 of the '239 patent to be indefinite. Id. at 35-39.
    An evidentiary hearing was held on August 2-6, 2021.
    On December 13, 2021, the ALJ issued the final ID finding no 
violation of section 337 and his recommended determination (``RD''). 
Specifically, the ID found the accused products infringe claims 1 and 6 
of the '525 patent; claims

[[Page 14907]]

1, 2, and 7-13 of the '239 patent; and claim 19 of the '478 patent; but 
those claims are invalid for failure to comply with the written 
description requirement and the enablement requirement of 35 U.S.C. 
112, para. 1. The ID also found claims 4 and 5 of the '525 patent 
invalid as indefinite under 35 U.S.C. 112, para. 2, because they depend 
from claims 2 and 3 of the '525 patent, which the ALJ found indefinite 
in the Markman Order. As for the '025 patent, the ID found the accused 
products do not infringe claims 19 and 20 and the claims have not been 
shown to be invalid. The ID further found that Complainants have shown 
that the domestic industry requirement has been satisfied with respect 
to the asserted patents under section 337(a)(3)(B).
    The parties filed a joint motion to extend the time for them to 
file petitions for review from December 27, 2021 (with responses due 
January 4, 2022) to December 30, 2021 (with responses due January 10, 
2022). On December 14, 2021, the Chair granted the motion.
    On December 30, 2021, Complainants and Respondents filed separate 
petitions for review of the ID. On January 10, 2022, they filed 
separate replies to the petitions for review.
    The Commission solicited submissions from the public on public 
interest issues raised by the recommended determination. On January 14, 
2022, the Kroger Co. submitted comments on the public interest for the 
Commission to consider should the Commission find a violation.
    Having reviewed the record of the investigation, including the 
final ID, the Markman Order, and the parties' submissions, the 
Commission has determined to review in part the final ID and the 
Markman Order. Specifically, the Commission has determined to review: 
(1) The ALJ's construction of the terms ``vehicle body'' and ``a 
plurality of [rolling members/wheels] attached to the vehicle body'' in 
the asserted claims of the '525, '239, and '478 patents; (2) the ID's 
finding that claims 2-5 of the '525 patent and claims 5, 6, 14, and 15 
of the '239 patent are invalid as indefinite; (3) the ID's construction 
of the term ``a displacement motor'' in claim 1 of the '025 patent; and 
(4) the ID's findings that the economic prong of the domestic industry 
is satisfied. Among other findings, the Commission has determined not 
to review the ID's finding that the asserted claims of the '525, '239, 
and '478 patents are invalid for failing to comply with the written 
description and enablement requirements of 35 U.S.C. 112, para. 1.
    On review, the Commission affirms with modification the ALJ's 
construction of the terms ``vehicle body'' and ``a plurality of 
[rolling members/wheels] attached to the vehicle body'' in the claims 
of the '525, '239, and '478 patents. The Commission also affirms the 
ALJ's finding of indefiniteness with respect to certain claims of the 
'525 and '239 patents and the ID's construction of the term ``a 
displacement motor'' in claim 1 of the '025 patent with the additional 
analyses provided in its opinion. Having adopted the ID's findings that 
the asserted claims of the '525, '239, and '478 patents are invalid and 
the asserted claims of the '025 patent are not infringed, the 
Commission has determined to take no position on the economic prong of 
the domestic industry requirement.\1\ Accordingly, the Commission has 
determined to affirm with modifications the ID's finding of no 
violation of section 337. The investigation is terminated in its 
entirety. The Commission's reasoning in support of its determination is 
set forth more fully in its opinion.
---------------------------------------------------------------------------

    \1\ Chair Kearns would affirm the ID's finding that the economic 
prong was not established with respect to AutoStore USA's 
investments.
---------------------------------------------------------------------------

    The Commission vote for this determination took place on March 10, 
2022.
    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: March 10, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-05504 Filed 3-15-22; 8:45 am]
BILLING CODE 7020-02-P