[Federal Register Volume 87, Number 142 (Tuesday, July 26, 2022)]
[Notices]
[Pages 44423-44424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15907]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1260]


Certain Toner Supply Containers and Components Thereof (II); 
Notice of Commission Final Determination Finding a Violation of Section 
337; Issuance of a General Exclusion Order and Cease and Desist Orders; 
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 (``Commission'') has found a violation of section 337 of the 
Tariff Act of 1930, as amended, in this investigation and has issued a 
general exclusion order (``GEO'') prohibiting the importation of 
certain infringing toner supply containers and components thereof, as 
well as cease and desist orders (``CDOs'') against certain defaulting 
respondents. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3228. 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 April 13, 2021, the Commission instituted 
this investigation based on a complaint filed by Canon Inc. of Tokyo, 
Japan; Canon U.S.A., Inc. of Melville, New York; and Canon Virginia, 
Inc. of Newport News, Virginia (collectively, ``Canon''). 86 FR 19287-
88 (Apr. 13, 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 toner supply containers and components thereof 
by reason of infringement of certain claims of thirteen patents: U.S. 
Patent Nos. 10,209,667; 10,289,060; 10,289,061; 10,295,957; 10,488,814; 
10,496,032; 10,496,033; 10,514,654; 10,520,881; 10,520,882; 8,565,649 
(``the '649 patent''); 9,354,551 (``the '551 patent''); and 9,753,402 
(``the '402 patent''). Id. at 19287. The complaint further alleges that 
a domestic industry (``DI'') exists. Id.
    The Commission instituted two separate investigations based on the 
complaint and defined the scope of the present investigation as whether 
there is a violation of section 337 based on the allegations of 
infringement as to the asserted claims of the '649, '551, and '402 
patents (collectively, ``the Asserted Patents'') as to the accused 
products identified in the notice of investigation (``NOI''). Id. The 
NOI named eleven respondents: (1) Sichuan XingDian Technology Co., Ltd. 
(``Sichuan XingDian'') of Sichuan, China; (2) Sichuan Wiztoner 
Technology Co., Ltd. (``Sichuan Wiztoner'') of Sichuan, China; (3) 
Anhuiyatengshangmaoyouxiangongsi (``Yatengshang'') of Ganyuqu, China; 
(4) ChengDuXiangChangNanShiYouSheBeiYouXianGongSi (``ChengDuXiang'') of 
SiChuanSheng, China; (5) Digital Marketing Corporation d/b/a Digital 
Buyer Marketing Company (``Digital Buyer'') of Los Angeles, California; 
(6) Do It Wiser, LLC d/b/a Image Toner of Wilmington, Delaware; (7) 
Hefeierlandianzishangwuyouxiangongsi (``Erlandianzishang'') of 
Chengdushi, China; (8) MITOCOLOR INC. (``TopInk'') of Rowland Heights, 
California; (9) Xianshi yanliangqu canqiubaihuodianshanghang of 
Shanxisheng, China; (10) Zhuhai Henyun Image Co., Ltd. of Zhuhai, China 
(collectively, the ``Defaulting Respondents''); and (11) Shenzhenshi 
Keluodeng Kejiyouxiangognsi (``KenoGen'') of Guangdong, China. Id. The 
Office of Unfair Import Investigations (``OUII'') is also named as a 
party. Id. at 19287-88. The Commission's determination in Inv. No. 337-
TA-1259 will separately address any violation of section 337 based on 
infringement of the asserted claims of the remaining patents in Canon's 
complaint. See 86 FR 19284-86 (Apr. 13, 2021).
    On May 27, 2021, the Commission granted Canon's motion to amend the 
complaint and NOI to change the identification of Do It Wiser, LLC d/b/
a Image Toner to Do It Wiser, Inc. d/b/a Image Toner (hereinafter, ``Do 
It Wiser'') and to make related changes in paragraph 31 of the 
complaint. Order No. 6 (May 17, 2021), unreviewed by 86 FR 29806-07 
(June 3, 2021).
    On September 7, 2021, the Commission terminated the following 
asserted claims from the investigation based on Canon's withdrawal of 
the complaint as to those claims: (i) claim 2 of the '649 patent; (ii) 
claims 2, 3, 6, and 7 of the '551 patent; and (iii) claims 25-27, 39-
41, and 46 of the '402 patent. Order No. 10 (Aug. 12, 2021), unreviewed 
by Comm'n Notice (Sept. 7, 2021).
    Also on September 7, 2021, the Commission terminated respondent 
KenoGen from the investigation based on Canon's withdrawal of the 
complaint as to KenoGen. Order No. 12 (Aug. 13, 2021), unreviewed by 
Comm'n Notice (Sept. 7, 2021). As a result, the ten Defaulting 
Respondents are the only respondents remaining in this investigation.
    On October 29, 2021, the Commission found the 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. 15 (Sept. 29, 2021), unreviewed by Comm'n Notice (Oct. 29, 
2021).
    On October 1, 2021, Canon filed a motion seeking summary 
determination that the Defaulting Respondents have violated section 337 
and requesting a recommendation that the Commission issue a general 
exclusion order (``GEO''), issue cease and desist orders (``CDOs'') 
against certain respondents, and set a one hundred percent (100%) bond 
for any importations of infringing goods during the period of 
Presidential review. On October 25, 2021, OUII filed a response 
supporting Canon's motion and requested remedial relief. No Defaulting 
Respondent filed a response to Canon's motion.

[[Page 44424]]

    On February 11, 2022, the presiding Chief Administrative Law Judge 
(``CALJ'') issued an initial determination (``ID'') granting Canon's 
motion and finding violations of section 337 by the Defaulting 
Respondents. Specifically, the ID finds that: (i) the Commission has 
subject matter, personal, and in rem jurisdiction in this 
investigation; (ii) Canon has standing to assert the Asserted Patents; 
(iii) Canon has satisfied the importation requirement as to all 
Defaulting Respondents; (iv) the accused products practice claims 1, 6, 
7, 12, 25, and 26 of the '649 patent, claims 1, 4, and 5 of the '551 
patent, and claims 1, 15-18, 32, 36, and 37 of the '402 patent; (v) 
Canon has satisfied the technical prong of the DI requirement with 
respect to the Asserted Patents; (vi) Canon has satisfied the economic 
prong of the DI requirement with respect to the Asserted Patents; and 
(vii) no claim of the Asserted Patents has been shown invalid. The 
CALJ's recommended determination on remedy and bonding recommended that 
the Commission: (i) issue a GEO; (ii) issue CDOs against eight 
respondents (i.e., Digital Buyer, Do It Wiser, TopInk, Sichuan 
XingDian, Sichuan Wiztoner, Yatengshang, ChengDuXiang, and 
Erlandianzishang); and (iii) set a 100 percent bond for any 
importations of infringing products during the period of Presidential 
review. No party petitioned for review of the subject ID.
    The Commission did not receive any submissions on the public 
interest from the parties pursuant to Commission Rule 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 9379-80 (Feb. 18, 2022).
    On March 30, 2022, the Commission determined to review the ID in 
part. 87 FR 19707-09 (Apr. 5, 2022). Specifically, the Commission 
determined to review the ID's analysis of the economic prong of DI 
requirement. Id. The Commission further requested briefing on remedy, 
bonding, and the public interest. Id.
    On April 13, 2022, Canon and OUII filed their initial written 
responses to the Commission's request for briefing. On April 10, 2021, 
Canon and OUII filed reply submissions.
    Having reviewed the record of the investigation, including the ID 
and Canon's and OUII's submissions, the Commission has found a 
violation of section 337 with respect to Defaulting Respondents. The 
Commission affirms, with modified analysis, the ID's findings that the 
economic prong of the DI requirement has been satisfied under section 
337(a)(3)(A) and (B). See 19 U.S.C. 1337(a)(3)(A), (B). (Commissioner 
Kearns finds the economic prong satisfied under section 337(a)(3)(A) 
and takes no position with respect to section 337(a)(3)(B)). 
(Commissioner Stayin writes separately, but joins the Commission's 
determination that the economic prong of the DI requirement has been 
satisfied under section 337(a)(3)(A) and (B).) The Commission also 
corrects two typographical errors on pages 50 and 58 of the ID, as 
explained in the Commission's opinion.
    Moreover, the Commission finds that the statutory requirements for 
issuance of a GEO under section 337(g)(2) are met. See 19 U.S.C. 
1337(g)(2). The Commission also finds it appropriate to issue CDOs 
against Digital Buyer, Do It Wiser, TopInk, Sichuan XingDian, Sichuan 
Wiztoner, Yatengshang, ChengDuXiang, and Erlandianzishang. See 19 
U.S.C. 1337(g)(1). In addition, the Commission finds that the public 
interest factors do not preclude issuance of the requested relief. See 
19 U.S.C. 1337(g)(1).
    The Commission therefore has determined that the appropriate remedy 
in this investigation is: (1) a GEO prohibiting the unlicensed entry of 
certain toner supply containers and components thereof that infringe 
one or more of claims 1, 6, 7, 12, 25, and 26 of the '649 patent; 
claims 1, 4, and 5 of the '551 patent; or claims 1, 15, 16, 17, 18, 32, 
36, and 37 of the '402 patent; and (2) CDOs against Digital Buyer, Do 
It Wiser, TopInk, Sichuan XingDian, Sichuan Wiztoner, Yatengshang, 
ChengDuXiang, and Erlandianzishang. The Commission has also determined 
that the bond during the period of Presidential review shall be in the 
amount of 100 percent of the entered value of the Accused Products that 
are subject to the GEO and CDOs. See 19 U.S.C. 1337(j).
    The Commission's reasoning in support of its determinations is set 
forth more fully in its opinion. The Commission's opinion and orders 
were delivered to the President and to the United States Trade 
Representative on the day of their issuance. The investigation is 
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 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 July 20, 
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: July 20, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-15907 Filed 7-25-22; 8:45 am]
BILLING CODE 7020-02-P