Notice2021-16374
Certain Tobacco Heating Articles and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Issues Under Review and on Remedy, Public Interest, and Bonding
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 2, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review in part a final initial determination ("FID") of the presiding administrative law judge ("ALJ") finding a violation of section 337 of the Tariff Act of 1930, as amended, in the above-captioned investigation. The Commission requests briefing from the parties on certain issues under review, as indicated in this notice. The Commission also requests briefing from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 145 (Monday, August 2, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 145 (Monday, August 2, 2021)]
[Notices]
[Pages 41509-41511]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16374]
[[Page 41509]]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1199]
Certain Tobacco Heating Articles and Components Thereof;
Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Schedule for Filing
Written Submissions on Issues Under Review and on Remedy, Public
Interest, and Bonding
AGENCY: International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part a final
initial determination (``FID'') of the presiding administrative law
judge (``ALJ'') finding a violation of section 337 of the Tariff Act of
1930, as amended, in the above-captioned investigation. The Commission
requests briefing from the parties on certain issues under review, as
indicated in this notice. The Commission also requests briefing from
the parties, interested government agencies, and interested persons on
the issues of remedy, the public interest, and bonding.
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 <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#591c1d100a6a113c3529192c2a302d3a773e362f"><span class="__cf_email__" data-cfemail="db9e9f9288e893beb7ab9baea8b2afb8f5bcb4ad">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. 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 May 15, 2020, the Commission instituted
this investigation under section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``section 337''), based on a complaint filed
by RAI Strategic Holdings, Inc., R.J. Reynolds Vapor Company, and R.J.
Reynolds Tobacco Company, all of Winston-Salem, North Carolina
(collectively, ``Complainants''). See 85 FR 29482-83. The complaint, as
supplemented, alleges a violation of section 337 based upon the
importation of certain tobacco heating articles and components thereof
by reason of infringement of certain claims of U.S. Patent Nos.
9,839,238 (``the '238 patent''); 9,930,915 (``the '915 patent'');
9,901,123 (``the '123 patent) (collectively, ``the Asserted Patents'').
The complaint also alleges the existence of a domestic industry. The
notice of investigation names five respondents: Altria Client Services
LLC, Altria Group, Inc. (``AGI''), and Philip Morris USA, Inc., all of
Richmond, Virginia; Philip Morris International Inc. (``PMI'') of New
York, New York; and Philip Morris Products S.A. of Neuchatel,
Switzerland (collectively, ``Respondents''). See id. The Office of
Unfair Import Investigations (``OUII'') is also a party to the
investigation. See id.
The Commission previously terminated respondents AGI and PMI from
the investigation based on Complainants' partial withdrawal of the
complaint. See Order No. 24 (Dec. 14, 2020), unreviewed by Comm'n
Notice (Jan. 5, 2021).
The Commission previously affirmed an initial determination finding
that the economic prong is satisfied under section 337(a)(3)(A) (19
U.S.C. 1337(a)(3)(A)) with respect to the '238 and '915 patents and
provided supplemental analysis. Order No. 35 (Jan. 19, 2021), affirmed
in part by Comm'n Notice (Feb. 18, 2021). The Commission took no
position on the finding that the economic prong was satisfied under
section 337(a)(3)(B) (19 U.S.C. 1337(a)(3)(B)). Id.
On May 14, 2021, the presiding ALJ issued the FID on violation. The
FID finds a violation of section 337 as to the '915 patent and the '123
patent by virtue of Respondents' infringement of claims 1-3 and 5 of
the '915 patent and claims 27-30 of the '123 patent. The FID finds that
Complainants did not establish a violation with respect to the '238
patent. In particular, the FID finds that Respondents failed to show
that the asserted claims of the '915 and '123 patents are invalid. The
ID further finds that claim 19 of the '238 patent is invalid as
anticipated. The FID finds that the domestic industry requirement is
satisfied for each of the Asserted Patents.
The Recommended Determination on Remedy and Bond (``RD'')
recommends the issuance of a limited exclusion order barring entry of
products that infringe the asserted claims of the Asserted Patents. The
RD does not recommend issuing cease and desist orders. The RD
recommends imposing no bond during the Presidential review period.
Finally, the RD concludes that the public interest evidence does not
weigh against entry of a remedy.
On May 28, 2021, Complainants, Respondents, and OUII each filed
petitions for review of various aspect of the FID. Specifically,
Complainants filed a petition for review of the FID's infringement and
validity findings for the '238 patent. Respondents filed a petition for
review that challenges aspects of the FID's construction of
``electrical energy source'' recited in claims 1 and 3 of the '915
patent. Respondents also petitioned for review of the FID's findings
concerning infringement and invalidity with respect to the '915 and
'123 patents, and the FID's domestic industry findings for the '123
patent. Respondents contingently petitioned for review of the
constructions of ``pressure channel'' and ``air inlet channel'' recited
in claim 19 of the '238 patent, as well as the FID's infringement
findings based on the alleged incorrect claim constructions. OUII filed
a petition for review of the constructions of ``pressure channel'' and
``air inlet channel'' recited in claim 19 of the '238 patent, and the
FID's infringement findings based on the limitation ``spatially
separated'' recited in claim 19.
On June 8, 2021, the parties filed their respective responses to
the various petitions for review. That same day, Respondents filed a
motion to strike-in-part Complainants' petition for review to the
extent the petition sought review of the RD. On June 21, 2021,
Complainants filed a response opposing the motion. OUII did not file a
response.
Having examined the record of the investigation, including the FID,
the petitions for review, and the responses thereto, the Commission has
determined to review the FID in part, as follows.
As to the '915 patent, the Commission has determined to review the
ALJ's construction of the limitation ``electrical energy source''
recited in asserted claims 1 and 3 and the FID's infringement,
technical prong, and invalidity findings to the extent they may be
affected by a modified claim construction.
As to the '123 patent, the Commission has determined to review the
FID's obviousness and domestic industry findings, including whether
Complainants have satisfied the economic prong of the domestic industry
requirement.
As to the '238 patent, the Commission has determined to review the
FID's infringement finding.
The Commission has determined not to review the remainder of the
FID. The Commission denies Respondents' motion to strike-in-part
Complainants' petition for review.
[[Page 41510]]
The parties are asked to provide additional briefing on the
following issues:
With regard to the '915 patent, please address whether a
construction of the term ``electrical energy source'' to mean
``receptacle that provides for transmission of electrical current
from the power source to the heating member, where the receptacle is
not limited to a structure that requires wiring or insertion,'' is
supported by the intrinsic and extrinsic evidence. Also, please
address whether this modified claim construction affects any other
findings in the FID regarding the '915 patent such as infringement,
domestic industry technical prong, or invalidity.
The parties are requested to brief only the discrete issues
identified above, with reference to the applicable law and evidentiary
record. The parties are not to brief any other issues on review, which
have already been adequately presented in the parties' previous
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). In particular, the written submissions should
address any request for a cease and desist order in the context of
recent Commission opinions, including those in Certain Arrowheads with
Deploying Blades and Components Thereof and Packaging Therefor, Inv.
No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and Certain Electric Skin
Care Devices, Brushes and Chargers Therefor, and Kits Containing the
Same, Inv. No. 337-TA-959, Comm'n Op. (Feb. 13, 2017). Specifically, if
Complainants seek a cease and desist order against any respondent, the
written submissions should respond to the following requests:
(1) Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainants also rely on other significant domestic operations that
could undercut the remedy provided by an exclusion order, please
identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
(2) In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
(3) Please discuss any other basis upon which the Commission could
enter a cease and desist order.
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/or 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. The submissions should include a discussion of
the RD's findings on the public interest.
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 to the investigation are requested
to file written submissions on the issues identified in this notice. In
addition, the 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 their initial submissions, Complainants are also requested to
identify the remedy sought and Complainants and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainants are 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 August 10,
2021. Reply submissions must be filed no later than the close of
business on August 17, 2021. No further submissions on 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-1199) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>). 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 Rules 201.6 and
210.5(e)(2) (19 CFR 201.6 & 210.5(e)(2)). Documents for which
confidential treatment by the Commission is properly sought will be
treated accordingly. A redacted non-confidential version of the
document must also be filed simultaneously with 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
[[Page 41511]]
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 July 27,
2021.
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: July 27, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-16374 Filed 7-30-21; 8:45 am]
BILLING CODE 7020-02-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 2, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.