[Federal Register Volume 88, Number 6 (Tuesday, January 10, 2023)]
[Notices]
[Pages 1405-1407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00236]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1252]


Certain Robotic Floor Cleaning Devices and Components Thereof; 
Notice of a Commission Determination To Review in Part a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions on the Issues Under Review and on Remedy, the Public 
Interest, and Bonding; and Extension of the Target Date for Completion 
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 review in part a final initial 
determination (``ID'') of the presiding administrative law judge 
(``ALJ'') finding a violation of section 337 by the accused products of 
respondents. The Commission requests written submissions from the 
parties on the issues under review and from the parties, interested 
government agencies, and other interested persons on the issues of 
remedy, the public interest, and bonding, under the schedule set forth 
below. The Commission has also extended the target date for completion 
of the investigation to March 6, 2023.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-2310. 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: The Commission instituted this investigation 
on March 2, 2021, based on a complaint filed on behalf of iRobot 
Corporation (``iRobot'') of Bedford, Massachusetts. 86 FR 12206-07 
(Mar. 2, 2021). The complaint alleged violations of section 337 of the 
Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain robotic 
floor cleaning devices and components thereof based on the infringement 
of certain claims of U.S. Patent Nos. 9,884,423 (``the '423 patent''); 
7,571,511 (``the '511 patent''); 10,813,517 (``the '517 patent''); 
10,835,096 (``the '096 patent''); and 10,296,007 (``the '007 patent''). 
The Commission's notice of investigation named SharkNinja Operating 
LLC, SharkNinja Management LLC, SharkNinja Management Co., SharkNinja 
Sales Co., and EP Midco LLC, all of Needham, Massachusetts; and 
SharkNinja Hong Kong Co. Ltd. of Hong Kong Island, Hong Kong as 
respondents (collectively, the ``Respondents'' or ``SharkNinja''). The 
Office of Unfair Import Investigations is not participating in the 
investigation.
    The '007 patent has been terminated from the investigation. See 
Order No. 23 (Sept. 13, 2021), unreviewed by Comm'n Notice (Oct. 5, 
2021); Order No. 38 (Jan. 4, 2022), unreviewed by Comm'n Notice (Jan. 
25, 2022). Accordingly, at the ALJ's evidentiary hearing, claims 9, 12, 
and 23 of the '423 patent; claims 12 and 23 of the '511 patent; claims 
1 and 9 of the '517 patent; and claims 17 and 26 of the '096 patent 
were still pending.
    On December 30, 2021, the ALJ issued a Markman Order (Order No. 37) 
construing the terms in dispute for all asserted patents.
    On October 7, 2022, the ALJ issued the final ID finding: (1) a 
violation of section 337 based on infringement (i.e., direct and 
induced) of asserted claims 9 and 12 of the '423 patent and direct 
infringement of asserted claims 1 and 9 of the '517 patent; (2) no 
infringement of claim 23 of the '423 patent; (3) no violation as to 
claims 17 and 26 of the '096 patent; and (4) no violation as to claims 
12 and 23 of the '511 patent. The ID further found that: (1) the second 
category of SharkNinja's Series 3 redesigned products is not subject to 
adjudication; (2) iRobot has satisfied the domestic industry 
requirement with respect to all remaining patents in the investigation; 
(3) SharkNinja failed to prove, by clear and convincing evidence, that 
asserted claims 9, 12, and 23 of the '423 patent are invalid under 35 
U.S.C. 101, 102, or 103. The ALJ recommended, should the Commission 
find a violation, issuing a limited exclusion order directed to 
SharkNinja's infringing products and a cease and

[[Page 1406]]

desist order directed to SharkNinja and requiring a bond in the amount 
of twenty percent (20%) for importation of infringing articles during 
the period of Presidential review.
    On October 24, 2022, SharkNinja and iRobot each petitioned for 
review of certain aspects of the final ID. On November 1, 2022, 
SharkNinja and iRobot each filed a response in opposition to each 
other's petition for review.
    On November 16, 2022, SharkNinja filed a motion to submit notice 
that the U.S. Patent Trial and Appeal Board (``PTAB'') issued a Final 
Written Decision (``FWD'') (Nov. 14, 2022) finding, inter alia, 
asserted claims 12 and 23 of the '423 patent unpatentable. On November 
18, 2022, iRobot filed a response in opposition to the motion. On 
December 1, 2022, SharkNinja filed a motion to submit information 
regarding iRobot's failure to appeal a PTAB FWD rendering the asserted 
claims of the '511 patent unpatentable. The Commission has determined 
to grant both motions.
    The Commission received no public interest comments from the public 
in response to the Commission's Federal Register notice seeking comment 
on the public interest. 87 FR 62451-52 (Oct. 14, 2022). iRobot 
submitted public interest comments pursuant to Commission Rule 
210.50(a)(4) (19 CFR 210.50(a)(4)).
    Having reviewed the record of the investigation, including the 
final ID, the parties' submissions to the ALJ, and the parties' 
briefing to the Commission, the Commission has determined to review the 
final ID in part. Specifically, the Commission has determined to review 
the ID's findings that: (1) for the '511 patent, estoppel applies to 
the Trilobite prior art device and claims 1, 10, 12, and 23 are invalid 
based on the PTAB's finding that the claims are unpatentable; (2) for 
the '423 patent, (i) claim 9 of the '423 patent is practiced by the 
domestic industry products; (ii) SharkNinja's accused robots with 
forward-docking, i.e., the IQ, AI, and AI-WD products, do not infringe 
claim 23 of the '423 patent; (iii) the prior art Dottie robot does not 
anticipate claim 23 of the '423 patent; (iv) the prior art combination 
of Dottie and Everett and the prior art combination of Dottie and Kim 
do not render claims 12 or 23, respectively, of the `423 patent obvious 
under 35 U.S.C. 103; (v) iRobot presented insufficient evidence of 
secondary considerations of non-obviousness with respect to claim 23; 
and (vi) claim 23 of the '423 patent is directed to patent-eligible 
subject matter under 35 U.S.C. 101; (3) for the '517 patent, (i) the 
``receiving system'' for claims 1 and 9 is not means-plus-function; 
(ii) claims 1 and 9 are infringed by SharkNinja's accused products; 
(iii) claims 1 and 9 are practiced by iRobot's domestic industry 
products; and (iv) claims 1 and 9 are not anticipated by the asserted 
prior art (Kawakami); and (4) for all remaining asserted patents, i.e., 
the '511, '423, '517, and '096 patents, iRobot satisfied the economic 
prong of the domestic industry requirement.
    The Commission has determined not to review the remainder of the 
final ID, including the final ID's finding of no violation as to the 
'096 patent.
    The Commission has also determined to extend the target date for 
completion of the investigation to March 6, 2023.
    In connection with its review, Commission requests responses to the 
following questions. The parties are requested to brief their positions 
with reference to the applicable law and the existing evidentiary 
record.
    1. With respect to claim 12 of the '423 patent, assuming that a 
person of ordinary skill in the art would have been familiar with the 
interchangeability of sonar and infrared signals, is there evidence in 
the record (please cite specifically) that suggests that a person of 
ordinary skill in the art would have been motivated to combine the 
Dottie robot with the left and right signal docking system disclosed in 
Everett? Please also include (by citing specifically to the record) any 
relevant evidence of secondary considerations of non-obviousness with 
respect to claim 12.
    2. If the Commission were to agree with SharkNinja's argument in 
its petition for review that the ``receiving system'' term of the 
asserted claims of the '517 patent should be construed as means-plus-
function, (i) what would be the function and the corresponding 
structure (and equivalents thereof) described in the specification, and 
(ii) what is the impact on infringement, the technical prong of the 
domestic industry requirement, and invalidity (i.e., anticipation by 
Kawakami)?
    The parties are invited to brief only the discrete issues requested 
above. 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 
Commission may (1) issue an order that results in the exclusion of the 
subject articles from entry into the United States, and/or (2) issue a 
cease and desist order that could result in the respondent 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 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 (December 
1994).
    When the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
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.
    When 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 Commission's determination. See 
section 337(j), 19 U.S.C. 1337(j) and the 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. 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 issues 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 
submissions should address the recommended determination by the ALJ on 
remedy and bonding.
    In its initial submission, Complainant is also requested to 
identify the remedy sought and is requested to submit proposed remedial 
orders for the Commission's consideration.

[[Page 1407]]

Complainant is further requested to provide the HTSUS subheadings under 
which the accused products are imported and to supply the 
identification information for all known importers of the products at 
issue in this investigation. The initial written submissions and 
proposed remedial orders must be filed no later than close of business 
on January 18, 2023. Reply submissions must be filed no later than the 
close of business on January 25, 2023. No further submissions on these 
issues will be permitted unless otherwise ordered by the Commission. 
Opening submissions are limited to 30 pages. Reply submissions are 
limited to 20 pages. No further submissions on any of 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 (March 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1252) 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, (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. Any non-
party wishing to submit comments containing confidential information 
must serve those comments on the parties to the investigation pursuant 
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the 
Commission and served on any parties to the investigation within two 
business days of 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 January 4, 
2023.
    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: January 4, 2023.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2023-00236 Filed 1-9-23; 8:45 am]
BILLING CODE 7020-02-P