[Federal Register Volume 88, Number 90 (Wednesday, May 10, 2023)]
[Notices]
[Pages 30158-30160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09953]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1265]


Certain Fitness Devices, Streaming Components Thereof, and 
Systems Containing Same; Notice of a Commission Determination To 
Reconsider the Original Remedial Orders and To Issue Orders Modifying 
Those Remedial Orders

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 determined to reconsider the original 
remedial orders issued in this investigation and to issue orders 
modifying those remedial orders.

[[Page 30159]]


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'' or ``Complainants''). 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''); 10,951,680 (``the '680 patent''); 10,469,554 
(``the '554 patent''); 10,469,555 (``the '555 patent''); and 10,757,156 
(``the '156 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 (collectively with 
ICON and FreeMotion, ``the iFit Respondents''); lululemon athletica 
inc., of Vancouver, Canada (``lululemon''); Curiouser Products Inc. d/
b/a MIRROR, of New York, New York (collectively with lululemon, 
``MIRROR''); and Peloton Interactive, Inc., of New York, New York 
(``Peloton'') (collectively, ``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 initial determination (``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 were no longer asserted against the iFit Respondents 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 the iFit Respondents: 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 Chief Administrative Law Judge issued the 
Final ID, which found that Respondents violated section 337.
    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 November 18, 2022, the Commission determined to review the Final 
ID in part. 87 FR 72510, 72510-12 (Nov. 25, 2022).
    On February 13, 2023, MIRROR and DISH filed a joint, unopposed 
motion to partially terminate the investigation as to MIRROR based on a 
settlement agreement between DISH and MIRROR.
    On March 8, 2023, the Commission issued its final determination, 
finding respondents Peloton, iFIT Inc., FreeMotion, and NordicTrack in 
violation of section 337 as to the asserted claims of the '156, '554, 
and '555 patents, but not as to the asserted claims of the '564 patent. 
88 FR 15736-38 (Mar. 14, 2023). As a remedy for that violation, the 
Commission issued a limited exclusion order and cease and desist orders 
directed to Peloton, iFIT Inc., FreeMotion, and NordicTrack. The 
remedial orders included repair and replacement exemptions, which 
included an exemption for parts necessary to service and repair covered 
products purchased by consumers prior to the date of the orders, and an 
exemption for covered products that are replacements for covered 
products purchased by consumers prior to the date of the orders, 
provided that replacement is pursuant to a warranty for the replaced 
article. The Commission imposed a bond of zero (0%) (i.e., no bond). 
Id. at 15738. The Commission's final determination also granted the 
motion to terminate the investigation as to MIRROR. Id. at 15737.
    On March 22, 2023, Peloton filed a petition for reconsideration of 
the limited exclusion order and its cease and desist order and 
requested expedited consideration of the same (the ``Petition''). 
Peloton's Petition asks the Commission to modify the remedial orders so 
that the repair and replacement exemptions apply to products purchased 
prior to the expiration of the 60-day period of Presidential review.
    On March 27, 2023, OUII filed a response supporting the Petition. 
On March 29, 2023, DISH filed a response opposing the Petition.
    On April 7, 2023, the iFit Respondents filed a Notice of Joinder, 
asking to join in the relief requested by Respondent Peloton's 
Petition. On April 12, 2023, Complainants filed a motion for leave to 
respond to Respondents' Notice of Joinder and their Response to 
Respondents' Notice of Joinder, opposing joinder.
    Having reviewed the parties' submissions, it has come to the 
Commission's attention that the mitigation of harm to U.S. consumers 
underlying the service and repair exemptions in the remedial orders in 
this investigation did not extend to U.S. consumers who have purchased 
or may purchase covered products during the Presidential review period. 
Accordingly, the Commission has determined sua sponte to reconsider the 
remedial orders originally issued in this investigation and to issue 
orders modifying those remedial orders to reduce their impact on those 
U.S. consumers as well.1 2 19

[[Page 30160]]

CFR 210.47. In light of the Commission's decision, the Commission has 
determined that Peloton's Petition; the iFit Respondents' Notice of 
Joinder; and Complainants' motion for leave to respond to Respondents' 
Notice of Joinder are moot.\3\ The Commission's Orders are issued 
concurrently herewith.
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    \1\ Commissioner Schmidtlein agrees with the majority 
determination sua sponte to reconsider the remedial orders 
originally issued in this investigation and to issue orders 
modifying those remedial orders to reduce their impact on U.S. 
consumers. In addition, consistent with her previously expressed 
views, she would also extend the exemption for replacement of the 
whole article in this case to include those that are not currently 
under warranty. See Comm'n Op. at 91 n.53 (Mar. 23, 2023) (Public 
Version).
    \2\ Commissioner Kearns does not join in the decision to 
reconsider and modify the remedial orders. At the time of the 
Commission's final determination in this investigation, he found 
that the appropriate way to mitigate harm to U.S. consumers was 
through an exemption for repair/replacement of products purchased by 
consumers prior to the date of the Commission's determination of 
violation and issuance of the orders. Having made that 
determination, based on the record and parties' arguments, he sees 
no reason to reconsider it. He notes that, in some prior 
investigations, the Commission has similarly granted a repair 
exemption that covered only products purchased by the date of the 
order. See, e.g., Certain Variable Speed Wind Turbine Generators and 
Components Thereof, Inv. No. 337-TA-1218, Limited Exclusion Order at 
2 (Jan. 18, 2022); Certain Magnetic Data Storage Tapes and 
Cartridges Containing the Same, Inv. No. 337-TA-1012, Limited 
Exclusion Order at 2 (Mar. 8, 2018). Finally, he notes that he does 
not view the Petition as meeting the requirements set forth in 
Commission Rule 210.47 (19 CFR 210.47).
    \3\ Commissioner Karpel would deny Peloton's Petition for 
failure to meet the standard set forth in Rule 210.47 of the 
Commission's Rules of Practice and Procedure. 19 CFR 210.47 
(requiring petitions for reconsideration to be ``confined to new 
questions raised by the determination or action ordered to be taken 
thereunder and upon which the petitioner had no opportunity to 
submit arguments''). Commissioner Karpel joins the Commission's 
decision to sua sponte reconsider the original remedial orders 
issued in this investigation and to issue orders modifying the 
remedial orders previously issued in this investigation to reduce 
their impact on those U.S. consumers. However, consistent with her 
views stated in the Commission Opinion, Commissioner Karpel would 
modify the remedial orders by extending the service and repair 
exemption to permit Respondents to import and use component parts 
for service and repair of damaged fitness devices that are or have 
been purchased by U.S. consumers during the Presidential review 
period, but would not permit Respondents to supply as a replacement 
the identical fitness device purchased by the consumer during this 
period for the reasons she stated in the Commission Opinion. See 
Comm'n Op. at 89 n.51 (Mar. 8, 2023).
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    The Commission vote for this determination took place on May 5, 
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: May 5, 2023.
Sharon Bellamy,
Acting Supervisory Hearings and Information Officer.
[FR Doc. 2023-09953 Filed 5-9-23; 8:45 am]
BILLING CODE 7020-02-P