[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Notices]
[Pages 24199-24201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08605]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1255]


Certain Apparatus and Methods of Opening Containers; Notice of a 
Final Determination Finding Violations of Section 337; Issuance of a 
General Exclusion 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

[[Page 24200]]

Commission has determined to affirm an initial determination (``ID'') 
(Order No. 11) of the then-presiding chief administrative law judge 
(``CALJ'') granting summary determination that certain defaulting 
respondents have violated section 337 of the Tariff Act of 1930, as 
amended, by importing, selling for importation, or selling in the 
United States after importation certain apparatus and methods of 
opening containers that infringe claim 12 of U.S. Patent No. 10,519,016 
(``the '016 patent''). The Commission has determined that the 
appropriate remedy is a general exclusion order excluding infringing 
container opening apparatuses. The Commission has also determined to 
set a bond in the amount of 100 percent of the entered value of the 
excluded products imported during the period of Presidential review. 
This investigation is hereby terminated.

FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3179. 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: On March 18, 2021, the Commission instituted 
this investigation based on a complaint filed by Draft Top, LLC 
(``Draft Top'') of Long Beach, New Jersey. 86 FR 14765 (Mar. 18, 2021). 
The complaint, as supplemented, alleges violations of section 337 of 
the Tariff Act of 1930, as amended (19 U.S.C. 1337) (``section 337''), 
based on the importation into the United States, the sale for 
importation, and the sale within the United States after importation of 
certain apparatus and methods of opening containers by reason of 
infringement of claim 12 of the '016 patent. Id. The complaint further 
alleges that a domestic industry exists. Id. The notice of 
investigation (``NOI'') named nine respondents: KKS Enterprises Co., 
Ltd. of Hangzhou, China; Kingskong Enterprises Co., Ltd. of Hangzhou, 
China; Du Zuojun of Shenzhen, Guangdong, China; WN Shipping USA, Inc. 
of Inwood, New York; Shuje Wei of Pomona, California; Express Cargo 
Forwarded, Ltd. of Los Angeles, California; Hou Wenzheng of Hebron, 
Kentucky (collectively, the ``Defaulting Respondents''); Mintiml of 
Yangzhou, Jiangsu, China; and Tofba International, Inc. (``Tofba'') of 
Hawthorne, California. Id. The Office of Unfair Import Investigations 
(``OUII'') is also named as a party. Id.
    The Commission subsequently terminated respondents Tofba and 
Mintiml from the investigation based on Draft Top's withdrawal of the 
complaint as to those respondents. See Order No. 6 (May 12, 2021), 
unreviewed by Comm'n Notice (May 27, 2021) (terminating Tofba); Order 
No. 9 (Aug. 11, 2021), unreviewed by Comm'n Notice (Aug. 24, 2021) 
(terminating Mintiml).
    On July 29, 2021, the Commission found the seven Defaulting 
Respondents in default for failing to respond to the complaint and NOI 
and failing to show cause why they should not be found in default. 
Order No. 8 (July 12, 2021), unreviewed by Comm'n Notice (July 30, 
2021). The Defaulting Respondents are the only respondents remaining in 
this investigation.
    On August 20, 2021, Draft Top filed a motion seeking summary 
determination that the Defaulting Respondents have violated section 337 
and requesting that the Commission issue a general exclusion order and 
set a 300 percent bond for any importations of infringing goods during 
the period of Presidential review. On September 17, 2021, Draft Top 
filed a supplement to its motion concerning certain ``inadvertently 
omitted'' evidence of its domestic expenditures in 2020. That same day, 
OUII filed a response supporting Draft Top's motion and requested 
remedial relief except on the issue of bonding, submitting instead that 
a bond of 100 percent, not 300 percent, is appropriate. No Defaulting 
Respondent filed a response to Draft Top's motion.
    On December 20, 2021, the former CALJ issued the subject ID 
granting Draft Top's motion and finding violations of section 337 by 
the Defaulting Respondents. Specifically, the ID finds that: (i) Draft 
Top satisfied the importation requirement as to the Defaulting 
Respondents; (ii) the Commission has subject matter, personal, and in 
rem jurisdiction in this investigation; (iii) the Defaulting 
Respondents' accused products practice claim 12 of the '016 patent; 
(iv) claim 12 of the '016 patent has not been shown invalid; and (v) 
Draft Top satisfied the technical and economic prongs of the domestic 
industry requirement as to the '016 patent. The ID also includes the 
CALJ's recommended determination on remedy and bonding, recommending 
that the Commission issue a general exclusion order and set a 100 
percent bond for any importations of infringing products during the 
period of Presidential review. No party petitioned for review of the 
ID.
    The Commission did not receive any submissions on the public 
interest from the parties pursuant to Commission Rule Sec.  
210.50(a)(4) (19 CFR 210.50(a)(4)). The Commission also did not receive 
any submissions on the public interest from members of the public in 
response to the Commission's Federal Register notice. 87 FR 238-39 
(Jan. 4, 2022).
    On February 3, 2022, the Commission determined not to review the 
ID's grant of summary determination of violations of section 337. 87 FR 
7499-501. The Commission's notice also requested written submissions on 
remedy, the public interest, and bonding. Id. On February 17, 2022, 
Draft Top and OUII filed initial written submissions in response to the 
Commission's notice. On February 24, 2022, Draft Top and OUII filed 
reply written submissions. No other submissions were received.
    Having examined the record in this investigation, including the 
parties' submissions, the Commission has determined that the 
appropriate remedy is a general exclusion order prohibiting the 
unlicensed importation of container opening apparatuses that infringe 
claim 12 of the '016 patent, pursuant to section 337(d)(2), (19 U.S.C. 
1337(d)(2)). The Commission has determined that the public interest 
factors do not preclude issuance of this remedial order. The Commission 
has also determined to set a bond in the amount of 100 percent of the 
entered value of the excluded products imported during the period of 
Presidential review (19 U.S.C. 1337(j)). The Commission issues its 
opinion herewith setting forth its determinations on certain issues. 
The Commission's order and opinion were delivered to the President and 
United States Trade Representative on the day of their issuance. This 
investigation is hereby terminated.
    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 Sec. Sec.  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

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of Service and shall file proof of service on the Electronic Document 
Information System (EDIS).
    The Commission vote for this determination took place on April 18, 
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: April 18, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-08605 Filed 4-21-22; 8:45 am]
BILLING CODE 7020-02-P