[Federal Register Volume 89, Number 223 (Tuesday, November 19, 2024)]
[Notices]
[Pages 91424-91427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26885]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1365]
Certain Photovoltaic Connectors and Components Thereof; Notice of
a Commission Determination To Review in Part a Final Initial
Determination; Request for Written Submissions on the Issues Under
Review and on Remedy, the Public Interest, and Bonding; Extension of
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 has determined to review in part a final initial
determination (``FID'') issued by the presiding administrative law
judge (``ALJ''). 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.
DATES: The Commission has determined to extend the target date for this
investigation to January 15, 2025.
FOR FURTHER INFORMATION CONTACT: Paul Lall, Office of the General
Counsel, U.S.
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International Trade Commission, 500 E Street SW, Washington, DC 20436,
telephone (202) 205-2043. 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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On June 9, 2023, the Commission instituted
this investigation based on a complaint filed on behalf of Shoals
Technologies Group, LLC (``Shoals Technologies'') of Portland,
Tennessee. 88 FR 37905-06 (June 9, 2023). The complaint alleges
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337 (``section 337''), based upon the importation into the
United States, the sale for importation, or sale within the United
States after importation of certain photovoltaic connectors and
components thereof by reason of infringement of certain claims of U.S.
Patent Nos. 10,553,739 (``the '739 patent'') and 10,992,254 (``the '254
patent''). The Commission's notice of investigation (``NOI'') named the
following eight respondents: (1) Hikam America, Inc. of Chula Vista,
California; (2) Hikam Electr[oacute]nica de M[eacute]xico, S.A. de C.V.
of Mexicali, Mexico; (3) Hikam Tecnologia de Sinaloa of Guasave,
Mexico; (4) Hewtech Philippines Corp. of Laguna, Philippines; (5)
Hewtech Philippines Electronics Corp. of Pampanga, Philippines; (6)
Hewtech (Shenzhen) Electronics Co., Ltd. of Shenzhen, China
(collectively the ``Hikam Respondents''); (7) Voltage, LLC
(``Voltage'') of Chapel Hill, North Carolina; and (8) Ningbo Voltage
Smart Production Co. (``Ningbo Voltage'') of Ningbo, China
(collectively ``Respondents''). Id. The Office of Unfair Import
Investigations (``OUII'') was also named as a party in this
investigation. Id. at 37906.
On August 15, 2023, the Commission amended the complaint and NOI to
add allegations of infringement against Voltage related to certain
claims of U.S. Patent No. 11,689,153 (``the '153 patent''). See Order
No. 5 (Jul. 18, 2023), unreviewed by 88 FR 56882-83 (Aug. 21, 2023).
The presiding ALJ held a Markman hearing on December 13, 2023, and
on February 20, 2024, issued an order addressing claim construction for
the '739, '254, and '153 patents. See Order No. 16 (Feb. 20, 2024)
(``Markman Order''). On February 28, 2024, Shoals filed a motion for
reconsideration of the Markman Order's construction of the term
``engaged with'' in claims 1 and 10 of the '739 patent. On March 4 and
5, 2024, Respondents and OUII filed oppositions to the motion,
respectively.
On March 11, 2024, the Commission terminated the following claims
from the investigation based on Shoals' withdrawal of the complaint as
to those claims: claims 2, 3, 6, 8, 9, 11, 12, and 15-18 of the '739
patent, claims 2-4, 8-12, 14, and 15 of the '254 patent, and claims 2,
3, 6, and 15-17 of the '153 patent. See Order No. 15 (Feb. 9, 2024),
unreviewed by Comm'n Notice (March 11, 2024).
On March 25, 2024, the Commission terminated the '254 patent from
this investigation based on Shoals' withdrawal of the complaint as to
that patent. See Order No. 19 (Feb. 28, 2024), unreviewed by Comm'n
Notice (March 26, 2024).
On April 19, 2024, the Commission determined not to review the
ALJ's grant of summary determination that Shoals has not satisfied the
technical prong of the domestic industry requirement for the '739
Patent and, thus, found no violation as to the '739 patent. Order No.
20 (March 6, 2024), unreviewed by Comm'n Notice (Apr. 19, 2024). In
Order No. 20, the ALJ also denied Shoals' motion for reconsideration of
the Markman Order. Id. Only the '739 patent was asserted against the
Hikam Respondents. See Comm'n Notice (Apr. 19, 2024); Am. Compl. at 66.
Accordingly, the Hikam Respondent were effectively terminated from the
investigation as of the termination of the '739 patent. On June 18,
2024, Shoals filed a notice of appeal with the U.S. Court of Appeals
for the Federal Circuit appealing the Commission's finding of no
violation as to the '739 patent. See Case No. 24-1991, Notice of
Docketing (Fed. Cir. June 24, 2024).
On April 26, 2024, the Commission terminated this investigation
with respect to asserted claim 8 of the '153 patent based on Shoals'
withdrawal of the complaint as to that claim. See Order No. 29 (April
2, 2024), unreviewed by Comm'n Notice (Apr. 26, 2024).
The ALJ held an evidentiary hearing on March 18-22, 2024. As of the
hearing, Shoals asserted claims 1, 11-14, 18, 21, 23, and 24 of the
'153 patent against the accused Voltage Trunk Bus, and Voltage sought
adjudication of the Voltage Alternative Design [``AD''] Trunk Bus with
respect to and claims 21 and 24 of the '153 patent. Shoals also
asserted that its domestic industry product practices claims 1 and 21
of the '153 patent for purposes of the domestic industry requirement.
On August 30, 2024, the presiding ALJ issued the FID, finding that
there has been a violation of section 337 in the importation into the
United States, the sale for importation, and/or the sale in the United
States after importation of certain photovoltaic connectors and
components thereof with respect to certain claims of the '153 patent.
Specifically, the FID finds as to the '153 patent that: (1) the Voltage
Trunk Bus and Voltage AD Trunk Bus have been imported into the United
States, sold for importation, and/or sold within the United States
after importation; (2) the Voltage Trunk Bus satisfies claims 1, 11-14,
and 18; (3) the Voltage Trunk Bus does not satisfy claims 21, 23, and
24; (4) the Voltage AD Trunk Bus does not satisfy claims 1, 11-14, 18,
21, 23, and 24; (5) Shoals has satisfied the technical prong of the
domestic industry requirement; (6) Shoals has satisfied the economic
prong of the domestic industry requirement; and (7) Voltage has not
shown that claims 1, 11-14, 18, 21, 23, and 24 are invalid.
On September 13, 2024, the presiding ALJ issued a Recommended
Determination on Remedy and Bonding (``RD''). The RD recommends that
the Commission issue a limited exclusion order in the event it finds a
violation of section 337 and impose a bond of 100 percent during the
period of Presidential Review.
On October 15 and 16, 2024, Shoals and Voltage, respectively, filed
a statement on the public interest pursuant to Commission Rule
210.50(a)(4), 19 CFR 210.50(a)(4). On October 2 and October 15, 2024,
American Wire Group of Miami, Fla. and Strata Clean Energy of Durham,
N.C. respectively filed statements on the public interest in response
to the Commission's Federal Register notice. See 89 FR 76869-70 (Sept.
19, 2024).
On September 16, 2024, Shoals filed a petition for review of the
FID. In its petition, Shoals Technologies argued that the ALJ should
not have considered respondents' redesign product, the Voltage AD Trunk
Bus, as being within the scope of the investigation.
On the same day, Respondents also filed a petition for review of
several of the FID's findings, including: (1) the FID's construction of
the term ``aperture, recited in the asserted claims of the '153
patent'' as defined by the ``Modified Cable Test''; (2) the FID's
finding that the asserted claims of the '153 patent are not invalid for
lack of written
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description and/or indefiniteness; (3) the FID's finding that Shoals
has a domestic industry with respect to an article protected by the
'153 patent; and (4) the ALJ's determination to exclude the testimony
of their invalidity expert.
Also on the same day, OUII filed a petition for review of the FID,
seeking review of several of the FID's findings, including: (1) the
FID's construction of the three ``aperture'' terms recited in the
asserted claims of the `153 patent; (2) the FID's finding that Shoals'
asserted domestic industry products satisfy the technical prong of the
domestic industry requirement; and (3) the ALJ's determination to
exclude the testimony of Respondents' invalidity expert.
On September 24, 2024, Shoals, Voltage and OUII each filed
responses to the respective petitions for review. On October 4, 2024,
Voltage filed a notice of supplemental authority and on October 7,
2024, Shoals filed a response.
Having reviewed the record of the investigation, including the FID,
the parties' petitions for review and related submissions, the
Commission has determined to review the FID's: (1) construction of the
``aperture'' terms recited in the asserted claims of the '153 Patent;
(2) finding that the accused products infringe the asserted claims of
the '153 patent; (3) finding that the asserted claims of the '153
patent are not invalid under 35 U.S.C. 112 for lack of written
description and/or indefiniteness; and (4) finding that Shoals'
domestic industry products satisfy the domestic industry requirement of
section 337, including the FID's findings concerning the technical
prong and the economic prong.
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). In connection with these findings, the Commission
requests responses from the parties to the following questions:
(1) Please identify whether and where in the record Shoals
presented arguments with supporting evidence that the accused products
infringe any asserted claim of the '153 patent under OUII's proposed
construction of the ``aperture'' terms.
(2) Please identify whether and where in the record Shoals
presented arguments with supporting evidence that its domestic industry
products satisfy the technical prong of the domestic industry
requirement of section 337 under OUII's proposed construction of the
``aperture'' terms.
The parties are invited to brief only the discrete issues requested
above. The parties are not to brief other issues on review, which are
adequately presented in the parties' existing filings.
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 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 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. Such submissions should
address the recommended determination by the ALJ on remedy 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 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 must be filed no later
than close of business on November 27, 2024. Reply submissions must be
filed no later than the close of business on December 5, 2024. 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 (Mar. 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1365'') 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
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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 this
investigation to January 15, 2025.
The Commission's vote on this determination took place on November
13, 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: November 13, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-26885 Filed 11-18-24; 8:45 am]
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