[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

[[Page 42951]]

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