[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Notices]
[Pages 72510-72512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25687]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1265]


Certain Fitness Devices, Streaming Components Thereof, and 
Systems Containing Same; Notice of Commission Determination To Review 
the Final Initial Determination in Part; Request for Written 
Submissions on the Issues Under Review and on Remedy, the Public 
Interest, and Bonding

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 review in part the final initial 
determination (``Final ID'') issued by the presiding chief 
administrative law judge (``CALJ'') on September 9, 2022. The 
Commission requests briefing from the parties on certain issues under 
review, as indicated in this notice. The Commission also requests 
briefing from the parties, interested government agencies, and 
interested persons on the issues of remedy, the public interest, and 
bonding.

FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3427. 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 
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 
1337, on May 19, 2021, based on a complaint filed by DISH DBS 
Corporation of Englewood, Colorado; DISH Technologies, L.L.C., of 
Englewood, Colorado; and Sling TV L.L.C., of Englewood, Colorado 
(collectively, ``DISH''). 86 FR 27106-07 (May 19, 2021). The complaint 
alleged a violation of section 337 based upon the importation into the 
United States, the sale for importation, and the sale within the United 
States after importation of certain fitness devices, streaming 
components thereof, and systems containing same by reason of 
infringement of certain claims of U.S. Patent Nos. 9,407,564 (``the 
'564 patent''); 10,469,554 (``the '554 patent''); 10,469,555 (``the 
'555 patent''); 10,757,156 (``the '156 patent''); and 10,951,680 (``the 
'680 patent''). Id. at 27106. The notice of investigation named as 
respondents ICON Health & Fitness, Inc. of Logan, Utah (``ICON'' or 
``iFIT Inc.''); FreeMotion Fitness, Inc. of Logan, Utah 
(``FreeMotion''); NordicTrack Inc. of Logan, Utah (``NordicTrack,'' and 
with ICON and FreeMotion, ``iFit''); lululemon athletica inc., of 
Vancouver, Canada (``lululemon''); Curiouser Products Inc. d/b/a MIRROR 
of New York, New York (together with lululemon, ``MIRROR''); and 
Peloton Interactive, Inc. of New York, New York (``Peloton,'' and with 
the other respondents, ``Respondents''). Id.; Order No. 14 (Nov. 4, 
2021), unreviewed by Comm'n Notice (Dec. 6, 2021), 86 FR 70532 (Dec. 
10, 2021). The Commission's Office of Unfair Import Investigations 
(``OUII'') also was named as a party in this investigation. 86 FR at 
27106.
    Prior to the issuance of the Final ID, the complaint and notice of 
investigation were amended to change the name of ICON to iFIT Inc. 
Order No. 14 (Nov. 4, 2021), unreviewed by Comm'n Notice (Dec. 6, 
2021), 86 FR at 70532. The investigation was also terminated in part as 
to claims 6, 11, and 12 of the '156 patent, claim 22 of the '554 
patent, and claim 17 of the '555 patent. Order No. 15 (Nov. 19, 2021), 
unreviewed by Comm'n Notice (Dec. 20, 2021). Moreover, claims 9 and 12 
of the '156 patent, claim 19 of the '554 patent, claims 12 and 13 of 
the '555 patent, and claim 6 of the '564 patent are no longer

[[Page 72511]]

asserted against iFit and Peloton. Id. The investigation was further 
terminated as to claims 6-8, 10, and 13-15 of the '564 patent, claims 3 
and 6-12 of the '156 patent, claims 18, 19, 21-25, and 30 of the '554 
patent, claims 12, 13, 16, 17, 26, and 27 of the '555 patent, and all 
asserted claims of the '680 patent. Order No. 21 (Mar. 3, 2022), 
unreviewed by Comm'n Notice (Mar. 23, 2022).
    At the time of the Final ID, DISH asserted the following claims 
against MIRROR and iFit: claims 1, 3, and 5 of the '564 patent; claims 
16, 17 and 20 of the '554 patent; claims 10, 11, 14, and 15 of the '555 
patent; and claims 1, 4, and 5 of the '156 patent. DISH also asserted 
the following claims against Peloton: claims 1 and 3-5 of the '564 
patent; claims 16, 17, and 20 of the '554 patent; claims 10, 11, 14, 
and 15 of the '555 patent; and claims 1, 2, 4, and 5 of the '156 
patent.
    On September 9, 2022, the CALJ issued the Final ID, which found 
that Respondents violated section 337.
    The CALJ's recommendation on remedy and bonding (the ``RD'') 
recommended that, if the Commission finds a violation of section 337, 
the Commission should issue a limited exclusion order and a cease and 
desist order directed to each of the Respondents. The RD further 
recommended that the Commission impose a zero percent (0%) bond during 
the period of Presidential Review. The Commission did not direct the 
CALJ to make findings and a recommendation on the statutory public 
interest factors.
    On September 23, 2022, Respondents and OUII filed petitions for 
review of the Final ID. On October 3, 2022, DISH and OUII filed 
responses to the petitions.
    On October 11, 2022, DISH and Respondents filed their public 
interest comments pursuant to Commission Rule 210.50(a)(4) (19 CFR 
210.50(a)(4)).
    Having examined the record in this investigation, including the 
Final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the Final ID in part. In 
particular, the Commission has determined to review the following:
    (1) whether DISH satisfied the technical prong of the domestic 
industry requirement as to all Asserted Patents;
    (2) whether claims 16, 17, and 20 of the '554 patent and claims 14 
and 15 of the '555 patent are entitled to claim priority to U.S. App. 
No. 60/566,831;
    (3) whether claims 16, 17, and 20 of the '554 patent and claims 14 
and 15 of the '555 patent are invalid as anticipated over the prior 
public use of the Move Media Player;
    (4) whether the asserted claims of the '555 patent are invalid for 
misjoinder of Mr. Brueck; and
    (5) whether the preamble of claim 10 of the '555 patent is 
limiting.
    The parties are requested to brief their positions with reference 
to the applicable law and the evidentiary record regarding the 
questions provided below:
    (1) Regarding whether DISH satisfied the technical prong of the 
domestic industry requirement as to all Asserted Patents, if the 
Commission determines that DISH's theory that the technical prong of 
the domestic industry requirement can be satisfied by the combination 
of its contended domestic industry products and third-party video 
displays (whether that combination is assembled by DISH itself or by 
its customers) was barred by Order No. 22 (Mar. 8, 2022):
    (A) Has DISH failed to prove a violation of section 337?
    (B) What is the scope and extent of factfinding that would be 
required for the Commission to determine whether DISH satisfied the 
technical prong of the domestic industry requirement?
    (C) Should the Commission remand to the CALJ for further claim 
construction regarding whether the ``presenting'' and ``providing''/
``provide'' claim limitations require a display (see Final ID at 109 
n.18)?
    (2) If the Commission determines that the final ID did not make a 
finding as to whether Mr. Brueck is misjoined on the '555 patent:
    (A) What is the scope and extent of factfinding that would be 
required for the Commission to determine whether Mr. Brueck is 
misjoined on the '555 patent?
    (B) Should the Commission remand to the CALJ for resolving this 
issue? And, if so, what should the scope of remand include?
    The parties are invited to brief only these discrete questions. The 
parties are not to brief other issues on review, which are adequately 
presented in the parties' existing filings.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of, inter alia, (1) an exclusion order that 
could result in the exclusion of the subject articles from entry into 
the United States, and/or (2) cease and desist orders that could result 
in the respondents being required to cease and desist from engaging in 
unfair acts in the importation and sale of such articles. Accordingly, 
the Commission is interested in receiving written submissions that 
address the form of remedy, if any, that should be ordered. If a party 
seeks exclusion of an article from entry into the United States for 
purposes other than entry for consumption, the party should so indicate 
and provide information establishing that activities involving other 
types of entry either are adversely affecting it or are likely to do 
so. For background, see Certain Devices for Connecting Computers via 
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. 
at 7-10 (Dec. 1994).
    The statute requires the Commission to consider the effects of that 
remedy upon the public interest. The public interest factors the 
Commission will consider include the effect that an exclusion order 
and/or cease and desist orders would have on: (1) the public health and 
welfare, (2) competitive conditions in the U.S. economy, (3) U.S. 
production of articles that are like or directly competitive with those 
that are subject to investigation, and (4) U.S. consumers. The 
Commission is therefore interested in receiving written submissions 
that address the aforementioned public interest factors in the context 
of this investigation. In particular, the Commission requests that the 
parties respond to the statements on the public interest submitted by 
the parties.
    In addition, the Commission requests specific briefing to address 
the following questions relevant to the public interest considerations 
in this investigation, including evidence in support:
    (1) Would an exclusion order or cease and desist order affect 
existing owners of Accused Products, and if so, how?
    (2) To what extent and as to which statutory public interest 
factor(s) should the Commission consider that DISH does not compete 
with Respondents in the sale of internet-streaming enabled fitness 
devices?
    (3) Please discuss what alternatives, if any, to the Accused 
Products would be available to U.S. consumers, including from third 
parties, if the Commission were to issue remedial orders. Please 
discuss price point, functionality, and/or any other information that 
the parties believe would be useful to the Commission in evaluating the 
availability of alternative fitness devices.
    (4) Please explain whether an exclusion order or cease and desist 
order would impact domestic production of like or directly competitive 
products.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve, 
disapprove, or take no action on the

[[Page 72512]]

Commission's determination. See Presidential Memorandum of July 21, 
2005, 70 FR 43251 (July 26, 2005). During this period, the subject 
articles would be entitled to enter the United States under bond, in an 
amount determined by the Commission and prescribed by the Secretary of 
the Treasury. The Commission is therefore interested in receiving 
submissions concerning the amount of the bond that should be imposed if 
a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the questions identified in this notice. 
Parties to the investigation, interested government agencies, and any 
other interested parties are encouraged to file written submissions on 
the issues of remedy, the public interest, and bonding. Such initial 
written submissions should include views on the RD that issued on 
September 9, 2022.
    Initial written submissions, limited to 60 pages, must be filed no 
later than the close of business on December 2, 2022. Complainants are 
requested to identify the form of the remedy sought and Complainants 
and OUII are requested to submit proposed remedial orders for the 
Commission's consideration. Complainants are also requested to state 
the HTSUS subheadings under which the accused articles are imported, 
and to supply identification information for all known importers of the 
accused products. Reply submissions, limited to 20 pages, must be filed 
no later than the close of business on December 9, 2022. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines stated above. The 
Commission's paper filing requirements in 19 CFR 210.4(f) are currently 
waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-1265'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding 
filing should contact the Secretary at (202) 205-2000.
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment by marking each document 
with a header indicating that the document contains confidential 
information. This marking will be deemed to satisfy the request 
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) 
& 210.5(e)(2)). Documents for which confidential treatment by the 
Commission is properly sought will be treated accordingly. A redacted 
non-confidential version of the document must also be filed 
simultaneously with any confidential filing. All information, including 
confidential business information and documents for which confidential 
treatment is properly sought, submitted to the Commission for purposes 
of this investigation may be disclosed to and used: (i) by the 
Commission, its employees and Offices, and contract personnel (a) for 
developing or maintaining the records of this or a related proceeding, 
or (b) in internal investigations, audits, reviews, and evaluations 
relating to the programs, personnel, and operations of the Commission 
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government 
employees and contract personnel, solely for cybersecurity purposes. 
All contract personnel will sign appropriate nondisclosure agreements. 
All nonconfidential written submissions will be available for public 
inspection on EDIS.
    The Commission vote for this determination took place on November 
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).

    Issued: November 18, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-25687 Filed 11-23-22; 8:45 am]
BILLING CODE 7020-02-P