[Federal Register Volume 90, Number 188 (Wednesday, October 1, 2025)]
[Notices]
[Pages 47333-47334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-19087]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1203 (Rescission)]
Certain Rolled-Edge Rigid Plastic Food Trays; Notice of
Commission Determination to Permanently Rescind a Limited Exclusion
Order; Termination of the Rescission Proceeding
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 permanently rescind a limited exclusion
order (``LEO'') issued in the underlying investigation. The rescission
proceeding is terminated.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. 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: On June 23, 2020, the Commission instituted
this investigation based on a complaint filed on behalf of Clearly
Clean Products, LLC of South Windsor, Connecticut, and Converter
Manufacturing, LLC of Orwigsburg, Pennsylvania (together,
``Complainants''). 85 FR 37689-90 (Jun. 23, 2020). The complaint
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 rolled-edge rigid plastic food trays that
infringe claim 9 of U.S. Patent No. 9,908,281 (``the '281 patent'') and
claims 1, 12, 20, and 21 of U.S. Patent No. 10,562,680 (``the '680
patent''). Id. at 37689-90. The complaint also alleged that a domestic
industry exists. Id. at 37689. The Commission's notice of investigation
named as respondents Eco Food Pak (USA), Inc. of Chino,
[[Page 47334]]
California (``Eco Food Pak''), and Ningbo Linhua Plastic Co., Ltd. of
Xiwu, China (``Ningbo Linhua Plastic''). Id. at 37690. The Office of
Unfair Import Investigations participated in this investigation. Id.
The investigation was terminated with respect to Eco Food Pak based
on the entry of a consent order. Order No. 6 (Oct. 1, 2020), unreviewed
by Comm'n Notice (Oct. 20, 2020).
On October 6, 2020, the Commission found Ningbo Linhua Plastic in
default for failing to respond to the complaint, the notice of
investigation, and an order to show cause why it should not be found in
default. Order No. 7 (Oct. 6, 2020), unreviewed by Comm'n Notice (Oct.
20, 2020). On February 25, 2021, the Commission issued a LEO against
Ningbo Linhua Plastic with respect to claim 9 of the '281 patent and
claims 1, 12, 20, and 21 of the '680 patent, and terminated the
investigation.
On December 4, 2024, Ningbo Linhua Plastic filed a petition to
rescind the LEO because the subject patent claims were found
unpatentable by the United States Patent and Trademark Office's
(``USPTO'') Patent Trial and Appeal Board (``PTAB''). Ningbo Linhua
Plastic provided the PTAB's final written decisions that found, inter
alia, that claim 9 of the '281 patent and claims 1, 12, 20, and 21 of
the '680 patent are unpatentable, as well as the U.S. Court of Appeals
for the Federal Circuit's affirmances of those final written decisions
and denials of en banc review. Ningbo Linhua Plastic asserted that the
unpatentability of the patent claims in the limited exclusion order was
final and unappealable and constituted a changed circumstance that
warranted rescission of the limited exclusion order pursuant to 35
U.S.C. 1337(k)(1) and 19 CFR 210.76.
On December 13, 2024, Complainants filed a response opposing the
rescission of the LEO. Complainants argued that the patent claims are
valid until the USPTO cancels the claims, which cannot occur until
after the time for filing a petition for writ of certiorari expires or
the completion of a U.S. Supreme Court appeal.
On January 3, 2025, the Commission instituted a rescission
proceeding and temporarily suspended enforcement of the LEO pending the
outcome of Complainants' appeal. On May 27, 2025, the U.S. Supreme
Court denied Complainants' petition for writ of certiorari. On June 26,
2025, the USPTO issued an Inter Partes Review Certificate canceling,
inter alia, claims 1, 12, 20, and 21 of the '680 patent. On July 8,
2025, the USPTO issued an Inter Partes Review Certificate canceling,
inter alia, claim 9 of the '281 patent.
The Commission has determined to permanently rescind the LEO.
Commission LEOs continue until the conditions that led to the LEO no
longer exist or the respondent is no longer in violation of section
337. 19 U.S.C. 1337(k)(1) and (2). Here, the Commission issued the LEO
based on the presumption that claim 9 of the '281 patent and claims 1,
12, 20, and 21 of the '680 patent were valid, but the USPTO's
cancellation of those claims demonstrates that the condition of
validity no longer exists and that Ningo Linhua Plastic no longer
violates section 337. The Commission also finds that the requirements
of Commission Rule 210.76(a) (19 CFR 210.76(a)) are satisfied. The
rescission proceeding is hereby terminated.
The Commission vote for this determination took place on September
26, 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: September 26, 2025.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2025-19087 Filed 9-30-25; 8:45 am]
BILLING CODE 7020-02-P