Notice2021-23547
Certain Light-Emitting Diode Products, Fixtures, and Components Thereof; Commission Determination To Review in Part A Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on Remedy, the Public Interest, and Bonding
Primary source
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Published
October 29, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("the Commission") has determined to review in part a final initial determination ("ID") of the presiding administrative law judge ("ALJ") finding a violation of section 337 by the accused products of respondent RAB Lighting Inc. ("RAB") of Northvale, New Jersey. The Commission requests written 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.
Full Text
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<title>Federal Register, Volume 86 Issue 207 (Friday, October 29, 2021)</title>
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[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Notices]
[Pages 60071-60072]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23547]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1213]
Certain Light-Emitting Diode Products, Fixtures, and Components
Thereof; Commission Determination To Review in Part A Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions on Remedy, the Public Interest, and Bonding
AGENCY: U.S. 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 in part a
final initial determination (``ID'') of the presiding administrative
law judge (``ALJ'') finding a violation of section 337 by the accused
products of respondent RAB Lighting Inc. (``RAB'') of Northvale, New
Jersey. The Commission requests written 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.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2310. 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#3b7e7f726808735e574b7b4e48524f58155c544d"><span class="__cf_email__" data-cfemail="ffbabbb6acccb79a938fbf8a8c968b9cd1989089">[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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on August 17, 2020, based on a complaint filed on behalf of Ideal
Industries Lighting LLC d/b/a Cree Lighting (``Cree'') of Durham, North
Carolina. 85 FR 50047-48 (Aug. 17, 2020). The complaint, as
supplemented, alleges violations 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 within the United
States after importation of certain light-emitting diode products,
fixtures, and components thereof by reason of infringement of certain
claims of U.S. Patent Nos. 8,403,531 (``the '531 patent''); 8,596,819
(``the '819 patent''); 8,777,449 (``the '449 patent''); 9,261,270
(``the '270 patent''); and 9,476,570 (``the '570 patent''). The
complaint further alleges the existence of a domestic industry. The
Commission's notice of investigation named RAB as the sole respondent.
The Office of Unfair Import Investigations is not participating in the
investigation. The Commission previously terminated the following
claims from the investigation: (1) Claims 1-9 and 11-14 of the '449
patent; (2) claims 3-12 of the '270 patent; and (3) claims 2, 6-9, and
11-24 of the '570 patent. See Order No. 25 (May 5, 2021), unreviewed by
Comm'n Notice (May 21, 2021).
On August 17, 2021, the ALJ issued the final ID finding a violation
of section 337 based on infringement of the asserted claims of the '270
and '570 patents. The ID finds no violation of section 337 with respect
to the '531 and '819 patents based on patent-ineligible subject matter,
lack of enablement, and lack of written description. The ID also finds
no violation with respect to the '449 patent. The ALJ recommended,
should the Commission find a violation, issuing a limited exclusion
order directed to RAB's infringing products and a cease and desist
order directed to RAB and requiring a bond in the amount of five
percent for importation of infringing articles during the Presidential
review period.
On September 2, 2021, RAB and Cree petitioned for review of certain
aspects of the final ID. Specifically, (1) RAB petitions for review of
the ID's findings regarding claim construction and invalidity with
respect to the '270 patent and infringement with respect to the '570
patent; and (2) Cree petitions for review of the ID's findings
regarding invalidity and patent-ineligible subject matter with respect
to the '531 and '819 patents. On September 13, 2021, RAB and Cree each
filed a response in opposition to the other party's petition for
review.
The Commission received no public interest comments from the public
in response to the Commission's Federal Register notice seeking comment
on the public interest. 86 FR 47146-47 (Aug. 23, 2021). On September
16, 2021, Cree and RAB submitted public interest comments pursuant to
Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)).
Having reviewed the record of the investigation, including the
parties' briefing, the Commission has determined to review the final ID
in part. Specifically, the Commission has determined to review the ID's
finding that: (1) The asserted claims of the '531 and '819 patents are
invalid due to patent-ineligible subject matter, lack of enablement,
and lack of written description; and (2) the '819 patent is prior art
to claims 1, 10-12, and 26 of the '531 patent. The Commission has
determined not to review the remainder of the ID.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that results in the exclusion of the
subject articles from entry into the United States, and/or (2) issue a
cease and desist order that could result in the respondent 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 (December 1994) (Commission
Opinion).
When the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
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.
When 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
section 337(j), 19 U.S.C. 1337(j) and the 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. The
[[Page 60072]]
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, bonding, and the
public interest. 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 to submit proposed remedial orders for
the Commission's consideration. Complainant is further requested to
state the date 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 November 8, 2021. Reply submissions must be filed
no later than the close of business on November 15, 2021. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission. Opening submissions are limited to 25 pages. Reply
submissions are limited to 20 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-1213) 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 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. 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
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 October
25, 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: October 25, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-23547 Filed 10-28-21; 8:45 am]
BILLING CODE 7020-02-P
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