[Federal Register Volume 88, Number 127 (Wednesday, July 5, 2023)]
[Notices]
[Pages 42950-42953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14126]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1294]
Certain High-Performance Gravity-Fed Water Filters and Products
Containing the Same; Commission Determination To Review in Part a Final
Initial Determination Finding a Violation of Section 337; Request for
Written Submissions on Issues Under Review and on Remedy, the Public
Interest, and Bonding; Extension of the Target Date
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 review in part a final
initial determination (``ID'') of the presiding administrative law
judge (``ALJ''), finding a violation of section 337. The Commission
requests written submissions from the parties on the issues under
review and submissions 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 determined to grant Respondents' motion for leave to
file a notice of supplemental authority and to extend the target date
for completion of this investigation to September 19, 2023.
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
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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: On January 31, 2022, the Commission
instituted this investigation based on a complaint filed by Brita LP
(``Brita'') of Neuchatel NE, Switzerland. 87 FR 4913 (Jan. 31, 2022).
The complaint, as supplemented, 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 high-
performance gravity-fed water filters and products containing the same
by reason of infringement of claims 1-6, 20, 21, 23, and 24 of U.S.
Patent No. 8,167,141 (``the '141 patent''). Id. The Commission's notice
of investigation named nine respondents: Mavea LLC of West Linn, Oregon
and Brita GmbH of Taunusstein, Switzerland (collectively, ``the Mavea
Respondents''); Ecolife Technologies, Inc. of City of Industry,
California and Qingdao Ecopure Filter Co., Ltd. of Shandong Province,
China (collectively, ``the Aqua Crest Respondents''); Kaz USA, Inc. and
Helen of Troy Limited, both of El Paso, Texas (collectively, ``PUR
Respondents''); Zero Technologies, LLC of Trevose, Pennsylvania;
Culligan International Co. of Rosemont, Illinois (collectively,
``ZeroWater Respondents''); and Vestergaard Frandsen Inc. of Baltimore,
Maryland (``LifeStraw''). Id. The Office of Unfair Import
Investigations is not participating in this investigation. Id.
On May 3, 2022, the ALJ issued an ID granting a motion to terminate
the investigation as to the Mavea Respondents based upon settlement.
Order No. 13 (May 3, 2022), unreviewed by Comm'n Notice (May 24, 2022).
On June 1, 2022, the ALJ issued an ID granting a motion to
terminate the investigation as to claims 20, 21, and 24 of the '141
patent based upon withdrawal of the allegations in the complaint as to
these claims. Order No. 19 (June 1, 2022), unreviewed by Comm'n Notice
(June 21, 2022).
On June 2, 2022, the ALJ held a Markman hearing. The ALJ issued a
Markman Order construing the claim terms in dispute on July 20, 2022.
Order No. 30 (July 20, 2022).
On September 22, 2022, the ALJ issued an ID granting a motion to
terminate the investigation as to the Aqua Crest Respondents based upon
withdrawal of the allegations in the complaint as to these respondents.
Order No. 43 (Sept. 22, 2022), unreviewed by Comm'n Notice (Oct. 11,
2022).
The ALJ held an evidentiary hearing from August 17-19, August 22-
23, and October 13, 2022, and received post-hearing briefs thereafter.
On February 28, 2023, the ALJ issued the final ID finding a
violation of section 337. The ID found that ``because of importation
stipulations of all Accused Products,'' the importation requirement
under 19 U.S.C. 1337(a)(1)(B) is satisfied. ID at 12-13. The ID also
found that Brita successfully proved that all of the Accused Products
infringe the asserted claims of the '141 patent (claims 1-6 and 23).
Id. at 69-105. The ID further found that Respondents failed to show by
clear and convincing evidence that the asserted claims are invalid for
lack of written description (Id. at 169-204), enablement (Id. at 205-
250), anticipation (Id. at 153-169), or for reciting ineligible subject
matter under 35 U.S.C. 101 (Id. at 250-269). Finally, the ID found that
Brita proved the existence of a domestic industry that practices the
'141 patent as required by 19 U.S.C. 1337(a)(2). Id. at 105-117, 269-
285.
The ID included the ALJ's recommended determination on remedy and
bonding (``RD''). The RD recommended, should the Commission find a
violation, issuance of a limited exclusion order against all
respondents and cease and desist orders against the PUR Respondents and
LifeStraw. ID/RD at 258-291. The RD also recommended imposing a bond in
the amount of one hundred percent (100%) of entered value for PUR's and
ZeroWater's infringing products imported during the period of
Presidential review and $6 per unit for infringing LifeStraw products
imported during the period of Presidential review. Id. at 291-295.
On March 13, 2023, Respondents and Brita filed respective petitions
for review of the ID. On March 21, 2023, the parties filed responses to
the petitions.
On May 24, 2023, Respondents moved for leave to file notice of
supplemental authority regarding their petition for review.
Specifically, Respondents seek to submit the recent U.S. Supreme Court
decision in Amgen Inc. v. Sanofi, No. 21-757 (May 18, 2023), as being
directly relevant to the lack of enablement of the asserted claims in
this investigation. The Commission has determined to grant the motion
and accept the filing.
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. Specifically, the Commission has
determined to review the following findings: (1) construction of the
claim term ``filter usage lifetime claimed by a manufacturer or seller
of the filter,'' (2) written description, (3) enablement, (4) section
101, (5) anticipation, and (6) the economic prong of the domestic
industry requirement.
In connection with its review, the 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) Discuss whether the construction of the claim term ``filter
usage lifetime claimed by a manufacturer or seller of the filter'' to
mean ``[t]he total number of gallons of water that a manufacturer or
seller has validated can be filtered before the filter is replaced,''
(Order No. 30 at 14), impermissibly deviates from the plain language of
the claims. Further, discuss whether the foregoing construction
requires the reading of one or more limitations from the specification
into the claim in order to find the limitation not invalid for
indefiniteness. See, e.g., '141 patent at col. 26:14-15.
(2) Discuss the effect of the recent Supreme Court decision, Amgen
Inc. v. Sanofi, No. 21-757 (May 18, 2023), on the ID's enablement and
written description findings.
(3) Discuss whether a person of ordinary skill in the art would
understand how to use filter types other than carbon block (e.g., mixed
media, hollow fibers, membranes, nonwovens, depth media, nanoparticles
and nanofibers, and ligands (JX-0022 at 25:9-12, 26:30-37)) to achieve
a FRAP factor below 350 as of the priority date of the '141 patent.
(4) Discuss the predictability of the technology at issue and, in
particular, how predictably these other filter types were expected to
perform in terms of the FRAP factor as compared to the carbon block
arrangement described in the specification as of the priority date of
the '141 patent.
(5) Discuss whether a person of ordinary skill in the art as of the
priority date of the '141 patent could have readily manipulated the
FRAP factor variables of volume V, average filtration unit time f,
effluent lead concentration ce, and lifetime L for any of
the other
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filter materials named in the specification to achieve FRAP factor
below 350. For example, if the manufacturer were to reduce only the
volume V of a given filter, or if the manufacturer or seller were to
claim a longer lifetime L for a given filter, would that
correspondingly reduce the FRAP factor without affecting (or at least
unpredictably affecting) the other variables? See JX-022 at 26:41-49,
Figs. 21-23.
(6) If it was possible to predictably determine the FRAP factor for
non-carbon block filter types as of the priority date of the '141
patent, explain why it took Brita ten years and 7,326 hours of research
and development to design a nonwoven filter that practices the '141
patent. See ID at 213 n.77; Tr. (Freeman) at 1562:18-1563:6. Is Brita's
research and development effort with respect to its non-woven filter DI
products indicative of the experimental time and effort needed to
develop filters other than the carbon block arrangement described in
the specification?
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 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.
In addition, the Commission requests specific briefing to address
the following questions relevant to the public interest considerations
in this investigation, and responses are encouraged to include evidence
in support of their statements:
(1) Please identify whether any reasonable substitutes for the
Accused Products are available to consumers and whether they are
capable of meeting any public health and welfare concerns raised by any
remedial relief in this investigation. Is or would there be sufficient
supply of any such reasonable substitutes for the Accused Products?
(2) Are the identified reasonable substitutes capable of filtering
Per- and polyfluoroalkyl substances (PFAS) chemicals in drinking water
and how effective are they in doing so in relation to the accused
products' capability of filtering PFAS in drinking water?
(3) Do the identified reasonable substitutes meet or exceed the
following standards: NSF P231/US EPA (bacteria and parasites); NSF 53
(pesticides, herbicides, lead and other heavy metals); NSF 42
(chlorine); NSF 473 (PFAS); and NSF 401 (emerging chemical
contaminants)? How does this compare to the accused products'
performance with respect to these standards? Please discuss the impact,
if any, on the public health and welfare of water filters not meeting
these standards and please submit and discuss any studies, data, or
other evidence that shows an impact on the public health and welfare.
(4) Is there any production of like or directly competitive
products in the United States and how would such production be impacted
by any remedial relief?
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: 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.
In its initial submission, Complainant is also requested to
identify the remedy sought and 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.
The initial written submissions and proposed remedial orders must
be filed no later than close of business on July 14, 2023. Reply
submissions must be filed no later than the close of business on July
21, 2023. No further submissions on these issues will be permitted
unless otherwise ordered by the Commission. Opening submissions are
limited to 60 pages. Reply submissions are limited to 30 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-1294) 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
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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 has determined to extend the target date for
completion of this investigation from June 28, 2023 to September 19,
2023.
The Commission vote for this determination took place on June 28,
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: June 28, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-14126 Filed 7-3-23; 8:45 am]
BILLING CODE 7020-02-P