[Federal Register Volume 89, Number 125 (Friday, June 28, 2024)]
[Notices]
[Pages 54038-54040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14291]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1118 (Remand)]


Certain Movable Barrier Operator Systems and Components Thereof; 
Notice of a Commission Determination To Review a Remand Initial 
Determination on Second Remand Order; Request for Written Submissions 
on Remedy, the Public Interest, and Bond

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (the ``Commission'') has determined to review a Remand 
Initial Determination on Second Remand Order (``Second RID'') finding 
that complainant The Chamberlain Group, Inc. (``Chamberlain'') has 
satisfied the economic prong of the domestic industry requirement with 
respect to U.S. Patent No. 8,587,404 (``the '404 patent''). The 
Commission requests written submissions from the parties, interested 
government agencies, and other interested persons on the issues of 
remedy, the public interest, and bond, under the schedule set forth 
below.

FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2382. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket system (``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: The Commission instituted this investigation 
on June 11, 2018, based on a complaint, as supplemented, filed by 
Chamberlain of Oak Brook, Illinois. 83 FR 27020-21 (June 11, 2018). The 
complaint alleges a violation of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337 (``section 337'') by way of importing, 
selling for importation, or selling in the United States after 
importation certain movable barrier operator systems that allegedly 
infringe one or more of the asserted claims of the '404 patent, U.S. 
Patent Nos. 7,755,223 (``the '223 patent''), and 6,741,052 (``the '052 
patent''). Id. The Commission's notice of investigation named Nortek 
Security & Control, LLC of Carlsbad, California (presently doing 
business as Nice North America LLC); Nortek, Inc. of Providence, Rhode 
Island; and GTO Access Systems, LLC of Tallahassee, Florida 
(collectively, ``Nortek'') as respondents. Id. The complaint further 
alleged the existence of a domestic industry. The Office of Unfair 
Import Investigations was not named as a party to this investigation. 
See id.
    On November 25, 2019, the presiding administrative law judge 
(``ALJ'') issued two initial determinations (``IDs''). First, the ALJ 
issued Order No. 38, granting Chamberlain's motion for summary 
determination that it satisfied the economic prong of the domestic 
industry requirement (``DI economic prong''). Order No. 38 (Nov. 25, 
2019). Second, the ALJ issued a final ID (``FID'') on violation, as 
well as a recommended determination (``RD'') on remedy and bond. The 
FID finds no violation of section 337 because: (i) Nortek did not 
infringe claim 11 of the '404 patent; (ii) Nortek did not infringe the 
'223 patent and Chamberlain did not satisfy the technical prong of the 
domestic industry requirement (``DI technical prong'') for that patent; 
and (iii) asserted claim 1 of the '052 patent is invalid as obvious. 
FID at 1, 286-87. The RD recommends issuing a limited exclusion order 
(``LEO'') and cease-and-desist orders (``CDO'') against Nortek and 
setting the bond at 100 percent during the period of Presidential 
review, if the Commission finds that Nortek violated section 337. Id. 
at 280, 282, 286.
    The parties did not file any submissions pursuant to Commission 
Rule 210.50(a)(4), 19 CFR 210.50(a)(4). The Commission also received no 
submissions in response to its notice soliciting comments from the 
public on impacts on the public interest should the recommended relief 
be granted. 84 FR 70998-999 (Dec. 26, 2019). On April 22, 2020, the 
Commission determined to review and, on review, to adopt the FID's no-
violation finding for the '404 patent, which was based on a narrow 
construction of ``movable barrier operator'' that excluded the wall 
station from its scope. Comm'n Notice at 3 (Apr. 22, 2020). The 
Commission determined to review and ultimately took no position on the 
FID's finding that Nortek failed to prove by clear and convincing 
evidence that claim 11 of the '404 patent is abstract and thus patent-
ineligible under 35 U.S.C. 101. At the same time, the Commission 
vacated

[[Page 54039]]

Order No. 38 and remanded the economic prong issue to the ALJ for 
further proceedings with respect to the '223 patent, which was still 
under review at that time. Id.; Order Vacating and Remanding Order No. 
38 (Apr. 22, 2020) (``First Remand Order'').
    On July 10, 2020, the ALJ, after re-analyzing the domestic industry 
per the Commission's instructions, issued a Remand Initial 
Determination (``First RID'' or ``RID1''). The First RID finds that 
Chamberlain made significant investments in plant and equipment as well 
as labor and capital, and thus satisfied the DI economic prong for the 
'223 patent under 19 U.S.C. 1337(a)(3)(A) and (B), respectively.
    On September 9, 2020, the Commission determined to review the First 
RID and requested additional briefing by the parties on issues relating 
to the DI economic prong with respect to the '223 patent and remedy, 
bond, and the public interest. 85 FR 57249-50 (Sept. 14, 2020).
    On December 3, 2020, the Commission determined to adopt the First 
RID's findings that Chamberlain satisfied the DI economic prong under 
subsections 337(a)(3)(A) and (B). 85 FR 79217-18 (Dec. 9, 2020). The 
Commission also reversed the FID's non-infringement finding for the 
'223 patent and found instead that Nortek violated section 337 by way 
of infringing the '223 patent. Id. Finding no public interest factors 
that precluded relief, the Commission proceeded to issue an LEO and 
CDOs against Nortek. Id.
    On June 16, 2020, Chamberlain appealed the Commission's no-
violation determinations with respect to the '404 and '052 patents. On 
April 1, 2021, Nortek cross-appealed the Commission's violation 
determination for the '223 patent. While the appeals were pending, the 
'052 patent expired.
    On April 27, 2023, the Federal Circuit issued its decision, in 
which it: (i) affirmed the Commission's violation determination for the 
'223 patent; (ii) for the '404 patent, reversed the Commission's 
construction of the limitation ``movable barrier operator,'' vacated 
its non-infringement, waiver, and no-violation determinations, and 
remanded to the Commission with instructions to re-evaluate 
infringement using a proper claim construction; and (iii) vacated the 
Commission's determinations for the expired '052 patent and remanded 
with instructions to dismiss the infringement claim as moot. The 
Chamberlain Group, Inc. v. ITC, Appeal Nos. 20-1965, 21-1829, 2023 WL 
3115579 (Fed. Cir. Apr. 27, 2023). The mandate issued on July 19, 2023, 
returning jurisdiction to the Commission for the remanded issues.
    On August 4, 2023, the Commission issued a notice asking the 
parties whether additional proceedings were necessary on remand. Comm'n 
Notice (Aug. 4, 2023). The parties agreed there was no need to reopen 
the evidentiary record, as it has already been fully developed.
    On October 4, 2023, the Commission issued a second notice directing 
the parties to brief: (i) which, if any, of the accused products 
infringe claim 11 of the '404 patent under the Court's new construction 
of ``movable barrier operator''; and (ii) whether the FID properly 
finds that claim 11 is not patent-ineligible under 35 U.S.C. 101. 
Comm'n Notice at 3 (Oct. 4, 2023). The Commission determined not to 
reopen the evidentiary record. See id. The Commission also remanded the 
investigation to the presiding ALJ for the sole purpose of determining 
whether Chamberlain satisfied the DI economic prong for the '404 
patent. In the original investigation, the Commission found no 
infringement of the '404 patent and thus DI economic prong as to this 
patent was not at issue when the ALJ issued the First RID. Id.; Remand 
Order (Oct. 4, 2023) (``Second Remand Order''). The Commission also 
determined to dismiss the infringement claim against the expired '052 
patent and vacate all findings regarding that expired patent as moot.
    Chamberlain and Nortek filed their initial responses to the 
Commission's second notice on October 27, 2023, and their replies on 
November 13, 2023.
    On January 11, 2024, the presiding ALJ issued Order No. 46 
directing the parties to provide additional or supplemental information 
regarding the covered products allegedly protected by the '404 patent, 
the extent to which the domestic investments relating to products 
covered by the '223 patent were equally applicable to products covered 
by the '404 patent, the domestic inventories of products covered by the 
'404 patent, and other issues relating to the DI economic prong 
analysis. Order No. 46 (Jan. 11, 2024). The parties filed their initial 
responses to Order No. 46 on January 29, 2024, and their respective 
replies on February 5, 2024.
    On May 8, 2024, the ALJ issued the Second RID. Order No. 50 (May 8, 
2024). The Second RID finds that Chamberlain has satisfied the DI 
economic prong for the '404 patent under subsections 337(a)(3)(A), (B), 
and (C). The Second RID notes that the Commission previously determined 
that Chamberlain's domestic industry products (the `` '404 DI 
Products'') practice the '404 patent, and thus finds that Chamberlain 
has satisfied the DI technical prong for that patent. Although the 
Commission did not ask the ALJ to make findings regarding infringement 
or the DI technical prong, the Second RID finds that Nortek infringes 
the '404 patent, and the same Nortek products that infringe the '404 
patent also infringe the '223 patent.
    On May 20, 2024, Nortek filed a petition for review of the Second 
RID. On May 28, 2024, Chamberlain filed its opposition to Nortek's 
petition for review.
    Upon review of the evidence of record, the parties' submissions, 
the final ID, the Second RID, and the Federal Circuit's decision on 
appeal, the Commission has determined to review the Second RID.
    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 respondent(s) 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.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the

[[Page 54040]]

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, interested 
government agencies, and any other interested parties are encouraged to 
file written submissions on the issues of remedy, the public interest, 
and bonding. Such submissions should take into consideration the remedy 
and bond previously issued in this investigation, the Commission's 
Opinion of December 3, 2020, with respect to remedy, the public 
interest, and bond, and the recommended determination on remedy and 
bond issued by the presiding ALJ on November 25, 2019.
    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 
state the dates that the asserted patents expire, 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 8, 2024. Reply submissions must be filed no 
later than the close of business on July 15, 2024. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission. Opening submissions are limited to 15 pages. Reply 
submissions are limited to 10 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-1118 (remand)) 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 at (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.
    The Commission vote for this determination took place on June 24, 
2024.
    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 25, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-14291 Filed 6-27-24; 8:45 am]
BILLING CODE 7020-02-P