[Federal Register Volume 88, Number 82 (Friday, April 28, 2023)]
[Notices]
[Pages 26332-26335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08996]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1286]


Certain Oil-Vaping Cartridges, Components Thereof, and Products 
Containing the Same Commission Determination To Review in Part a Final 
Initial Determination Finding No Violation of Section 337 as to the 
Asserted Patent Claims; Request for Written Submissions on Issues Under 
Review and on Remedy, the Public Interest, and Bonding as to the 
Asserted Trademark

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``Commission'') has determined to review in part a final 
initial determination (``ID'') of the presiding chief administrative 
law judge (``CALJ''), finding no violation of section 337 as to the 
asserted patent claims. On review, the Commission has determined to 
find no violation of section 337 as to the asserted patent claims. The 
Commission has determined to review all findings and orders as to 
Respondent Glo Extracts (``Glo Extracts'') of Los Angeles, California 
and requests briefing from the parties as set forth below. The 
Commission has also determined to review all findings related to the 
asserted trademark. The Commission requests written submissions from 
the parties, interested government agencies, and other interested 
persons on the issues of remedy, the public interest, and bonding as to 
the asserted trademark, under the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3042. 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

[[Page 26333]]

Commission's TDD terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: On November 10, 2021, the Commission 
instituted this investigation based on a complaint filed by Shenzhen 
Smoore Technology Limited (``Smoore'' or ``Complainant'') of Shenzhen, 
China. 86 FR 62567-69 (Nov. 10, 2021). The complaint alleged violations 
of section 337 based on the importation into the United States, the 
sale for importation, or the sale within the United States after 
importation of certain oil-vaping cartridges, components thereof, and 
products containing the same by reason of infringement of one or more 
of claims 1-3, 5, and 6 of U.S. Patent No. 10,357,623 (``the '623 
patent''); claims 1, 2, and 7 of U.S. Patent No. 10,791,762 (``the '762 
patent''); claims 1 and 11 of U.S. Patent No. 10,791,763 (``the '763 
patent''); and U.S. Registered Trademark No. 5,633,060 (``the '060 
mark''). Id.
    The Commission's notice of investigation named the following 
entities as respondents: BBTank USA, LLC (``BBTank'') of Lambertville, 
Michigan; Glo Extracts; BulkCarts.com of Canton, Michigan; Greenwave 
Naturals LLC of Austin, Texas; BoldCarts.com of Tempe, Arizona; Bold 
Crafts, Inc. of Irvine, California; Blinc Group Holdings, LLC of New 
York, New York; Jonathan Ray Carfield (``Jonathan Carfield''), d/b/a 
AlderEgo Wholesale, AlderEgo Holdings, Inc. and AlderEgo Group, Limited 
a/k/a AVD Holdings Limited of Guangdong, China; Hanna Carfield (``Hanna 
Carfield'') of Tacoma, Washington; Next Level Ventures, LLC (``Next 
Level Ventures'') of Seattle, Washington; Advanced Vapor Devices, LLC 
(``AVD'') of Los Angeles, California; avd710.com (``avd710.com'') of 
Seattle, Washington; AlderEgo Group Limited (``AEG'') of Hong Kong; A&A 
Global Imports, Inc. (``A&A Global'') d/b/a Marijuana Packaging of 
Vernon, California; Bulk Natural, LLC (``Bulk Natural'') d/b/a True 
Terpenes of Portland Oregon; Brand King, LLC (``Brand King'') of 
Sacramento, California; ZTCSMOKE USA Inc. (``ZTCSMOKE'') of Niceville, 
Florida; headcandysmokeshop.com of Richmond, BC Canada and Head Candy 
Enterprise Ltd. of Vancouver. BC Canada (together ``Head Candy'') ; 
Green Tank Technologies Corp. of Toronto, ON Canada; Cannary Packaging 
Inc (``Cannary Packaging'') of Kelowna, BC Canada; Cannary LA 
(``Cannary LA'') of Signal Hill, California; dcalchemy.com and DC 
Alchemy, LLC (together ``Alchemy'') both of Phoenix, Arizona; 
Cartridgesforsale.com of Ypsilanti, Michigan; HW Supply, LLC of 
Ypsilanti, Michigan; International Vapor Group, LLC (``International 
Vapor'') of Miami Lakes, Florida; Obsidian Supply, Inc. of Irvine, 
California; Ygreeninc.com and Ygreen Inc. (together (``Ygreen'') both 
of Walnut, California; Atmos Nation LLC (``Atmos'') of Davie, Florida; 
shopbvv.com of Naperville, Illinois; Best Value Vacs, LLC (``Best Value 
Vacs'') of Naperville, Illinois; Royalsupplywholesale.com 
(``Royalsupplywholesale'') of San Francisco, California; 
Customcanabisbranding.com (``Customcanabisbranding'') of San Francisco, 
California; CLK Global, Inc. (``CLK'') of San Francisco, California; 
iKrusher.com, of Arcadia, California (``iKrusher''); and The Calico 
Group Inc. of Austin, Texas. The Office of Unfair Import Investigations 
(``OUII'') was also named as a party in this investigation. Id.
    On December 16, 2021, the CALJ issued an ID granting a motion to 
terminate the investigation as to Head Candy based upon a consent 
order. Order No. 9 (Dec. 16, 2021), unreviewed by Comm'n Notice (Jan. 
10, 2022). On December 20, 2021, the CALJ issued an ID granting a 
motion to terminate the investigation as to ZTCSMOKE based upon a 
consent order. Order No. 10 (Dec. 20, 2021), unreviewed by Comm'n 
Notice (Jan. 11, 2022). On December 21, 2021, the CALJ issued IDs 
granting motions to terminate the investigation as to Alchemy, CLK, 
Royalsupplywholesale, and Customcanabisbranding based upon consent 
orders. Order Nos. 12 and 13 (Dec. 21, 2021), unreviewed by Comm'n 
Notice (Jan. 11, 2022). On January 10, 2022, the CALJ issued an ID 
granting a motion to terminate the investigation as to Ygreen based 
upon a consent order. Order No. 15 (Jan. 10, 2022), unreviewed by 
Comm'n Notice (Feb. 4, 2022). On January 18, 2022, the CALJ issued IDs 
granting motions to terminate the investigation as to Cannary Packaging 
and Cannary LA based upon consent orders. Order Nos. 16 and 17 (Jan. 
18, 2022), unreviewed by Comm'n Notice (Feb. 15, 2022).
    On January 21, 2022, the CALJ issued an ID granting a motion to 
terminate the investigation as to International Vapor based upon 
withdrawal of allegations in the complaint as to International Vapor. 
Order No. 17 (Jan. 21, 2022), unreviewed by Comm'n Notice (Feb. 15, 
2022). On February 23, 2022, the CALJ issued an ID granting a motion to 
(1) amend the complaint and notice of investigation to change the name 
of Respondents BoldCarts.com and Bold Crafts, Inc. to Bold Crafts, LLC 
d/b/a Bold Carts and BoldCarts.com (``Bold Crafts''); (2) amend the 
complaint and notice of investigation to change the name of Respondent 
Green Tank Technologies Corp. to Greentank Technologies Corp. 
(``Greentank''); (3) amend the complaint and notice of investigation to 
change the name of Respondent Blinc Group Holdings, LLC to The Blinc 
Group Inc.; and (4) terminate the investigation as to BBTank based upon 
withdrawal of allegations in the complaint as to BBTank. Order No. 20 
(Feb. 23, 2022), unreviewed by Comm'n Notice (Mar. 18, 2022).
    On June 7, 2022, the CALJ issued an ID granting a motion to 
terminate the investigation as to Best Value Vacs and shopbvv.com based 
upon settlement. Order No. 29 (June 7, 2022), unreviewed by Comm'n 
Notice (June 22, 2022). On July 5, 2022, the CALJ issued IDs granting 
motions to terminate the investigation as to Atmos, AEG, Hanna 
Carfield, and Jonathan Carfield based upon settlement. Order Nos. 33 
and 34 (July 5, 2022), unreviewed by Comm'n Notice (Aug. 2, 2022).
    The CALJ held an evidentiary hearing from August 1-August 5, 2022 
and received post-hearing briefs thereafter.
    On January 23, 2023, the CALJ issued an ID finding the following 
respondents in default: Cartridgesforsale.com; HW Supply, LLC; Obsidian 
Supply, Inc.; BulkCarts.com; and Greenwave Naturals LLC. Order No. 42 
(Jan. 23, 2023), unreviewed by Comm'n Notice (Feb. 14, 2023). The CALJ 
declined to find respondent Glo Extracts in default because he found 
that Glo Extracts was not properly served with the show-cause order. ID 
at 8.
    On January 31, 2023, the CALJ issued an ID granting a motion to 
terminate the investigation as to The Calico group based upon 
settlement and a consent order. Order No. 46 (Jan. 31, 2023), 
unreviewed by Comm'n Notice (Mar. 3, 2023). Non-defaulting respondents 
remaining in the investigation are: The Blinc Group Inc.; Bold Crafts; 
Greentank; iKrusher; Next Level Ventures; AVD; avd710.com; Bulk 
Natural; Brand King; and A&A Global (collectively, the 
``Respondents'').
    On February 1, 2023, the CALJ issued the final ID finding no 
violation of section 337. The ID found that by appearing and 
participating in the investigation, the participating parties (The 
Blinc Group Inc.; Bold Crafts, LLC; Greentank Technologies Corp.; 
iKrusher, Inc.; Next Level Ventures, LLC; Bulk Natural, LLC; Brand 
King, LLC; A&A Global Imports, Inc.) consented to personal jurisdiction 
at the Commission. ID at 19. The ID further found that the importation 
requirement under 19 U.S.C. 1337(a)(1)(B) is satisfied

[[Page 26334]]

and that the Commission has in rem jurisdiction over the accused 
products. Id. at 19-20 (citing JX-0359C ] 3, JX-0375C (Godlewski Depo.) 
at 49:5-51:8, JX-0381C ] 3, JX-0380C (Yu Depo.) 47:14-48:1; 48:11-17, 
JX-0523C ] 3). The ID found that Smoore failed to show that the accused 
products infringe the asserted claims of the '623, '762, and '763 
patents. ID at 55-75. The ID also found that the respondents failed to 
show that the asserted claims are invalid in view of the cited prior 
art. ID at 75-89. The ID further found that the asserted claims of the 
'623 patent are invalid as indefinite under 35 U.S.C. 112 and are 
unenforceable due to inequitable conduct. ID at 27-29, 89-94. Finally, 
the ID found that Smoore failed to prove the existence of a domestic 
industry that practices the Asserted Patents as required by 19 U.S.C. 
1337(a)(2). Id. at 55-75, 94-102.
    The ID included the CALJ's recommended determination on remedy and 
bonding (``RD''). The RD recommended, should the Commission find a 
violation, issuance of a limited exclusion order and cease and desist 
orders. ID/RD at 105-108. The RD also recommended imposing no bond for 
covered products imported during the period of Presidential review 
because Smoore failed to meet its burden to establish a need for a 
bond. Id. at 108-09.
    On February 13, 2023, Smoore filed a petition for review of the ID 
and Respondents filed a contingent petition for review of the ID. On 
February 21, 2023, the parties, including OUII, filed responses to the 
petitions.
    Having reviewed the record of the investigation, including the 
final ID, the parties' submissions to the ALJ, the petitions for 
review, and the responses thereto, the Commission has determined to 
review in part the final ID and orders issued in this investigation. 
Specifically, the Commission has determined to review the ID's domestic 
industry findings, all findings related to the asserted trademark, and 
all findings and orders as to Respondent Glo Extracts. On review, the 
Commission has determined to affirm the ID's finding that Smoore failed 
to show that its alleged domestic industry products practice any of the 
asserted patents. Thus, Smoore has necessarily failed to show the 
existence of a domestic industry under section 337(a)(3) as to the 
asserted patents and as such the Commission has determined to take no 
position on the economic prong of the domestic industry requirement 
related to the asserted patents. Accordingly, the Commission finds no 
violation with regard to the '623, '762, and '763 patents.
    In connection with the '060 mark asserted against the respondents 
found in default and Glo Extracts, the Commission requests responses 
from Smoore, Glo Extracts, and OUII to the following questions 
pertaining to Glo Extracts:

    (1) Whether Smoore has been able to serve Glo Extracts with the 
Amended Complaint and Notice of Investigation, Smoore's motion for 
summary determination, and any of the Orders from this 
investigation, including the ALJ's show-cause order;
    (2) Smoore shall provide proof of service for any documents 
successfully served on Glo Extracts, or if unsuccessful, an 
explanation of its attempts to serve Glo Extracts with those 
documents, along with supporting evidence, and an explanation of its 
statement that Glo Extracts ``evaded'' service of the ALJ's show-
cause order (see Smoore Pet. at 85);
    (3) Smoore shall also serve this notice on Glo Extracts and 
provide proof of service or an explanation (and supporting 
documentation) why it was unable to serve this notice;
    (4) Whether the Commission should terminate the investigation as 
to Glo Extracts for lack of service or whether the Commission should 
find Glo Extracts in default and issue a remedy as to it.
    (5) Whether the Commission should find Glo Extracts in violation 
of Section 337, if it is not found in default, and issue a remedy 
against it.

    All assertions of facts concerning service, attempts to serve, and 
evasion of service shall be under oath in the form of an affidavit or 
declaration.
    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 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 
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 received from 
the various third parties.
    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 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 specified parties 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.
    In its initial submission, Complainant is also requested to 
identify the remedy sought and Complainant and OUII are requested to 
submit proposed remedial orders for the Commission's consideration. 
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. Complainant is also requested to identify 
and explain, from the record, articles that it contends are 
``components thereof and products containing the same'' of the subject 
products, and thus potentially covered by the proposed remedial orders, 
if imported separately from the subject products. See 86 FR 62567-69. 
Failure to provide this information may result in waiver of any remedy 
directed to ``components thereof and products

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containing the same'' the subject products, in the event any violation 
may be found.
    The initial written submissions and proposed remedial orders must 
be filed no later than close of business on May 8, 2023. Reply 
submissions must be filed no later than the close of business on May 
15, 2023. No further submissions on these issues will be permitted 
unless otherwise ordered by the Commission. Opening submissions are 
limited to 50 pages. Reply submissions are limited to 25 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-1286) 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.
    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 completes service for any party/
parties 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 April 24, 
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: April 24, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-08996 Filed 4-27-23; 8:45 am]
BILLING CODE 7020-02-P