Notice2021-26715
Certain Movable Barrier Operator Systems and Components Thereof; Commission Decision To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Target Date Extension
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Published
December 10, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade 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. The Commission requests briefing from the parties on certain issues under review, as set forth in this notice. The Commission also requests briefing from the parties, interested persons, and government agencies on the issues of remedy, the public interest, and bonding. The Commission has further determined to extend the target date until February 3, 2022.
Full Text
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<title>Federal Register, Volume 86 Issue 235 (Friday, December 10, 2021)</title>
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[Federal Register Volume 86, Number 235 (Friday, December 10, 2021)]
[Notices]
[Pages 70527-70529]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26715]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1209]
Certain Movable Barrier Operator Systems and Components Thereof;
Commission Decision To Review in Part a Final Initial Determination
Finding a Violation of Section 337; Schedule for Filing Written
Submissions on the Issues Under Review and on Remedy, the Public
Interest, and Bonding; Target Date Extension
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'') of the presiding administrative law judge
(``ALJ'') finding a violation of section 337 of the Tariff Act of 1930,
as amended. The Commission requests briefing from the parties on
certain issues under review, as set forth in this notice. The
Commission also requests briefing from the parties, interested persons,
and government agencies on the issues of remedy, the public interest,
and bonding. The Commission has further determined to extend the target
date until February 3, 2022.
FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-4716. 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#20656469731368454c506055534954430e474f56"><span class="__cf_email__" data-cfemail="a3e6e7eaf090ebc6cfd3e3d6d0cad7c08dc4ccd5">[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 August 10, 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 Overhead Door Corporation of Lewisville, Texas and
GMI Holdings Inc. of Mount Hope, Ohio (collectively, ``Complainants'').
See 85 FR 48264-65 (Aug. 10, 2020). The complaint, as supplemented,
alleges a violation of 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 movable barrier operator systems
and components thereof by reason of infringement of U.S. Patent Nos.
8,970,345 (``the '345 patent''); 9,483,935 (``the '935 patent'');
7,173,516 (``the '516 patent''); 7,180,260 (``the '260 patent'');
7,956,718 (``the '718 patent''); and 8,410,895 (``the '895 patent'').
See id. The notice of investigation names The Chamberlain Group, Inc.
of Oak Brook, Illinois (``Respondent'') as the respondent in this
investigation. See id. The Office of Unfair Import
[[Page 70528]]
Investigations is not a party to the investigation. See id.
On February 10, 2021, the Commission terminated the investigation
as to the '516 patent based on the withdrawal of the allegations in the
complaint as to that patent. See Order No. 10 (Jan. 19, 2021),
unreviewed by Comm'n Notice (Feb. 10, 2021).
On April 26, 2021, the ALJ issued an ID granting Complainants'
motion for summary determination that the economic prong of the
domestic industry requirement is satisfied. See Order No. 12 (April 26,
2021), unreviewed by Comm'n Notice (May 26, 2021).
On September 14, 2021, the ALJ issued the FID finding a violation
of section 337 based on the infringement by Respondent of all of
Complainants' asserted patents. Specifically, the FID finds that: (1)
The asserted patents are all infringed by Respondent's accused products
and redesigned products; (2) the domestic industry products practice
the asserted patents; and (3) the asserted patents not invalid under 35
U.S.C. 101, 102, or 103.
The FID also includes a recommended determination (``RD'')
recommending, should the Commission affirm and find a violation of
section 337, that the Commission issue: (1) A limited exclusion order
against certain movable barrier operator systems and components thereof
that are imported into the United States, sold for importation, and
sold within the United States after importation, by the Respondent; and
(2) a cease and desist order against the Respondent. The RD also
recommends that the Commission set a bond during the period of
Presidential review in an amount of 100 percent of the entered value of
the movable barrier operator systems imported by or on behalf of the
Respondent.
On September 27, 2021, the Respondent filed a petition for
Commission review of certain aspects of the FID. Specifically,
Respondent requested that the Commission review, for one or more of the
asserted patents, the FID's findings with respect to: (1) Claim
construction; (2) infringement; (3) invalidity for anticipation or
obviousness under 35 U.S.C. 102 or 103, respectively; (4) invalidity
for patent ineligibility under 35 U.S.C. 101; and/or (5) the technical
prong of the domestic industry requirement. On October 5, 2021,
Complainants filed a response in opposition to the Respondent's
petition.
Having examined the record of this investigation, including the FID
and the parties' submissions, the Commission has determined to review
the FID in part. Specifically, the Commission has determined to review
the following of the FID's findings: (1) With respect to the '345 and
'935 patents, construction of the claim term ``on each of the channels
. . . ,'' the related infringement findings as to the accused products
and redesigns, and the validity of the asserted claims of the'345 and
'935 patents over U.S. Patent Application Publication No. 2006/0109078
(RX-44) (``Keller''); (2) with respect to the '260 patent, construction
of the claim term ``user input of . . . limit values,'' the related
infringement findings, and patent eligibility under 35 U.S.C. 101; and
(3) with respect to the '718 and '895 patents, construction of the
claim terms ``obstruction detection unit'' and ``obstruction
detector,'' the related infringement findings as to the accused
products and redesigns, and patent eligibility under 35 U.S.C. 101. The
Commission has determined not to review the remainder of the FID.
The Commission has also determined to extend the target date until
February 3, 2022.
In connection with its review, the Commission requests the parties
to brief their positions with reference to the applicable law and the
evidentiary record regarding only the following issues:
1. Explain why the claim phrase ``on each of the channels, . . .
multiple copies of a message'' in the '935 patent and the claim
phrase ``on each of the channels, . . . to a next one of the
multiple channels'' in the '345 patent require construction and why
the plain language of the claim phrases is inadequate to resolve the
parties' disputes as to infringement and/or invalidity over Keller.
2. Assuming that the Commission determines that the claim phrase
``on each of the channels, . . . multiple copies of a message'' in
the '935 patent and the claim phrase ``on each of the channels, . .
. to a next one of the multiple channels'' in the '345 patent
require no construction and that the plain meaning applies, please
provide your position, with support from the evidentiary record, as
to the effect of this construction on infringement and/or invalidity
over Keller.
3. Assuming that the Commission determines that the claim phrase
``on each of the channels, . . . multiple copies of a message'' in
the '935 patent should be construed to mean ``a transmitter
configured to automatically transmit multiple copies of a message
upon actuation of the transmitter on each of two or more different
channels,'' please provide your position, with support from the
evidentiary record, as to the effect of this construction on
infringement and/or invalidity over Keller.
4. Assuming that the Commission determines that the claim phrase
``on each of the channels, . . . to a next one of the multiple
channels'' in the '345 patent should be construed to mean ``a
transmitter operatively connected to automatically transmit multiple
copies of a message upon actuation of the transmitter on one of
multiple channels prior to switching the transmitter at a
transmitter-switching rate, to a next one of the multiple
channels,'' please provide your position, with support from the
evidentiary record, as to the effect of this construction on
infringement and/or invalidity over Keller.
5. Explain why the claim phrase ``user input of . . . limit
values'' in the '260 patent requires construction and why the plain
language of the claim phrase is inadequate to resolve the parties'
disputes as to infringement.
6. Assuming that the Commission determines that the claim phrase
``user input of . . . limit values'' in the '260 patent requires no
construction and that the plain meaning applies, please provide your
position, with support from the evidentiary record, as to the effect
of this construction on infringement.
7. Assuming that the Commission determines that the construction
of the claim terms ``obstruction detection unit'' and ``obstruction
detector'' do not require ``enabling a response to an obstruction,''
and should be construed as ``device or circuitry capable of
detecting and signaling an obstruction in the opening closable by
the barrier,'' please provide your position, with support from the
evidentiary record, as to the effect of this construction on
infringement.
In addition, in connection with the final disposition of this
investigation, the statute authorizes issuance of (1) an order that
could result in the exclusion of the subject articles from entry into
the United States, and/or (2) 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, Comm'n Op. at 7-10 (Dec. 1994).
The statute requires the Commission to consider the effects of any
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
[[Page 70529]]
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. In that regard, the
Commission requests briefing on each of the aforementioned public
interest factors. The parties are requested to also brief their
positions on the following questions:
1. Please include in your analysis of the competitive conditions
in the United States economy and U.S. consumers, a fulsome
explanation, supported by evidence as to whether, and to what
extent, the garage door openers and gate operators of other
suppliers can be substituted for CGI's accused products, including
whether potential substitutes are made in the United States or
overseas. Please include in your analysis, a quantitative analysis
of the availability of such substitutes to U.S. consumers both in
the near term and in the future.
2. With respect to CGI's assertion that it holds a large share
of the U.S. market for garage door openers and gate operators,
please identify what percentage share of the U.S. market the accused
products comprise of the total market shares asserted by CGI.
3. Please include in your analysis of the public health and
welfare, a fulsome explanation, supported by evidence, as to whether
and to what extent exclusion of CGI's accused products and
substitution of competitors' products raise safety and security
concerns for U.S. consumers.
4. CGI contends in its public interest statement that ``there
was no discovery or findings by the ALJ regarding public interest
issues and the record is devoid of adversarially-tested direct
evidence that OHD or others have the manufacturing capacity to
immediately supply domestic demand if CGI is excluded from the
market or the harm that the construction industry and consumers
would suffer.'' Please provide any evidence that supports or
disproves CGI's assertion, including how your analysis is to be
considered under each applicable statutory public interest factor.
5. If CGI requests a repair/warranty exemption from any remedial
orders, please cite and discuss the evidence of record supporting
such a request.
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 limited to the briefing questions above.
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 initial
written submissions should include views on the RD by the ALJ on
remedy, the public interest, and bonding. Complainants are also
requested to identify the form of remedy sought and to submit proposed
remedial orders for the Commission's consideration in their initial
written submissions. Complainant is further requested to state the
HTSUS subheadings under which the accused products are imported, and to
supply the names of known importers of the products at issue in this
investigation.
Initial written submissions and proposed remedial orders must be
filed no later than close of business on December 13, 2021. Reply
submissions must be filed no later than the close of business on
December 20, 2021 and must be limited to issues raised in the initial
written submissions. Initial written submissions may not exceed 70
pages in length, exclusive of any exhibits, while reply submissions may
not exceed 45 pages in length, exclusive of any exhibits. 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-1209'') 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. 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 non-confidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
The Commission's vote for this determination took place on December
6, 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: December 6, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-26715 Filed 12-9-21; 8:45 am]
BILLING CODE 7020-02-P
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