[Federal Register Volume 90, Number 83 (Thursday, May 1, 2025)]
[Notices]
[Pages 18700-18701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-07520]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1384]
Certain Passive Optical Network Equipment; Notice of the
Commission's Final Determination Finding No Violation of Section 337;
Termination of the Investigation
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 find no violation of section 337 of the
Tariff Act of 1930, as amended in the above-captioned investigation.
The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3228. 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
on December 29, 2023, based on a complaint filed by Optimum
Communications Services, Inc. of Jersey City, New Jersey (``Optimum'').
88 FR 90200-01 (Dec. 29, 2023). The complaint, as supplemented, 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, and the sale in the United
States after importation of certain passive optical network equipment
by reason of the infringement of certain claims of U.S. Patent Nos.
7,333,511 (``the '511 patent'') and 7,558,260 (``the '260 patent'')
(collectively, ``the asserted patents''). Id. The complaint further
alleges that a domestic industry exists. Id. The Commission's notice of
investigation (``NOI'') names the following respondents: (i) Hangzhou
Softel Optic Co., Ltd. of Hangzhou, China; (ii) Hangzhou DAYTAI Network
Technologies Co., Ltd. of Hangzhou, China; and (iii) Hangzhou Sumlo
Industrial Co., Ltd. of Hangzhou, China (collectively,
``Respondents''). Id. at 90201. The Office of Unfair Import
Investigations (``Staff'') is also a party to this investigation. Id.
On May 9, 2024, the Commission found all Respondents in default.
Order No. 12 (April 10, 2024), unreviewed by Comm'n Notice (May 9,
2024).
Optimum and Staff opted to have the presiding administrative law
judge (``ALJ'') decide the investigation on the briefs rather than hold
an evidentiary hearing. Order No. 13 (May 9, 2024). On May 21, 2024,
Optimum filed its brief on the issues of violation, remedy, and
bonding, which was titled, ``Complainant's Pre-hearing Brief.'' On June
7, 2024, Staff filed its brief. On June 10, 2024, Optimum also filed a
reply brief.
Almost two months after the parties' briefing was completed,
Xenogenic Development, LLC (``Xenogenic'') moved to intervene in the
investigation, to stay all proceedings, and to terminate the
investigation. On August 16, 2024, Optimum filed a response to
Xenogenic's motion to intervene. On August 19, 2024, Staff filed a
response to Xenogenic's motion to intervene. On August 22, 2024,
Xenogenic filed a reply.
On December 19, 2024, the ALJ issued a final initial determination
(``FID'') finding no violation of section 337 with respect to claims 1
and 12-14 of the '511 patent and claims 1 and 3 of the '260 patent.
Specifically, the FID finds: (1) termination is proper because, due to
post-institution assignments of the asserted patents, Optimum is no
longer a proper complainant; (2) the importation requirement has not
been satisfied; (3) Optimum has not shown that either claims 1 and 12-
14 of the '511 patent or claims 1 and 3 of the '260 patent are
infringed; (4) Optimum has not satisfied the technical prong of the
domestic industry requirement for the '511 patent or the '260 patent;
and (5) Optimum has not satisfied the economic prong of the domestic
industry requirement for the '511 patent or the '260 patent. The FID
also grants in part Xenogenic's motion to intervene for the limited
purpose of addressing ownership-related issues in the event of
Commission review of the FID's findings of no violation.
The FID includes the ALJ's recommended determination (``RD'') on
remedy, the public interest, and bonding should the Commission find a
violation of section 337. Specifically, the RD recommends, if the
Commission finds a violation, issuing a general
[[Page 18701]]
exclusion order (``GEO'') under section 337(d)(2)(A). Id. at 49-52.
However, the RD recommends that the evidence does not support that
there is a widespread pattern of circumvention and, thus, does not
support issuance of a GEO under section 337(d)(2)(B). Moreover, because
Optimum failed to show a violation of section 337 by substantial,
reliable, and probative evidence, the RD does not recommend issuing a
GEO under section 337(g)(2). The RD does not recommend issuing any
cease and desist orders. The RD also recommends that, because Optimum
failed to demonstrate the necessity of a bond, the Commission should
issue a zero percent (0%) bond for any infringing products imported
during the period of Presidential review.
On December 24, 2024, Optimum filed a petition for review. On
January 7, 2025, Staff filed a response to Optimum's petition.
Xenogenic did not file a response to Optimum's petition.
On January 21, 2025, the Commission published its post-RD Federal
Register notice seeking submissions on public interest issues raised by
the relief recommended by the ALJ should the Commission find a
violation. 90 FR 7158-59 (Jan. 21, 2025). On February 10, 2025, Antony
Hernandez filed a submission supporting Optimum's request for a GEO. On
February 11, 2025, Xenogenic filed a submission arguing against
issuance of a GEO.
On March 11, 2025, the Commission determined to review the FID in
its entirety. 90 FR 12366-67 (Mar. 17, 2025).
Having reviewed the record of the investigation, the Commission has
found no violation of section 337. Specifically, the Commission affirms
the FID's findings that Optimum has not satisfied the importation
requirement, has failed to show infringement, and has not satisfied the
domestic industry requirement. The Commission has also determined to
strike the FID's statement in its ``Conclusions of Law'' section that
the Commission ``lacks statutory authority with respect to this
investigation because Optimum is not the owner or exclusive licensee of
the asserted patents.'' See FID at 46. The Commission has also
determined to take no position on the FID's findings regarding
ownership. See 19 CFR 210.45(c); see also Beloit Corp. v. Valmet Oy,
742 F.2d 1421, 1423 (Fed. Cir. 1984). Accordingly, the Commission finds
no violation of section 337.
The investigation is terminated.
The Commission vote for this determination took place on April 25,
2025.
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: April 25, 2025.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2025-07520 Filed 4-30-25; 8:45 am]
BILLING CODE 7020-02-P