[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
[[Page 26335]]
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