Notice2022-03402
Certain Blowers and Components Thereof; Notice of a Commission Determination To Review an Enforcement Initial Determination and Order No. 36
Primary source
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Published
February 17, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in its entirety the enforcement initial determination ("EID") issued on December 14, 2021, finding no violation of the consent order issued in the above-referenced section 337 investigation. The Commission has also determined to review Order No. 36, also issued on December 14, 2021.
Full Text
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<title>Federal Register, Volume 87 Issue 33 (Thursday, February 17, 2022)</title>
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[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Notices]
[Pages 9085-9086]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03402]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1217]
Certain Blowers and Components Thereof; Notice of a Commission
Determination To Review an Enforcement Initial Determination and Order
No. 36
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 its entirety the enforcement
initial determination (``EID'') issued on December 14, 2021, finding no
violation of the consent order issued in the above-referenced section
337 investigation. The Commission has also determined to review Order
No. 36, also issued on December 14, 2021.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3042. 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#397c7d706a0a715c5549794c4a504d5a175e564f"><span class="__cf_email__" data-cfemail="d095949983e398b5bca090a5a3b9a4b3feb7bfa6">[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 September 8, 2020, the Commission
instituted the original, underlying investigation based on a complaint
filed by Regal Beloit America, Inc. of Beloit, Wisconsin (``Regal'' or
``Complainant''). 85 FR 55491-92 (Sept. 8, 2020). The complaint alleged
violations of section 337 of the Tariff Act of 1930, as
[[Page 9086]]
amended, 19 U.S.C. 1337, in the importation into the United States, the
sale for importation, or the sale within the United States after
importation of certain blowers and components thereof by reason of
infringement of one or more of claims 1, 2, 7-10, and 15 of U.S. Patent
No. 8,079,834 (``the '834 patent''). Id. at 55492. The Commission's
notice of investigation named as respondents East West Manufacturing,
LLC of Atlanta, Georgia, and East West Industries of Binh Duong,
Vietnam (collectively, ``East West'' or ``Respondents''). Id. at 55492.
The Office of Unfair Import Investigations (``OUII'') did not
participate as a party in the original investigation. Id.
On November 12, 2020, the Commission terminated the original
investigation with respect to Respondents based upon a consent order
stipulation and entry of a consent order. 85 FR 73511 (Nov. 18, 2020).
The Consent Order directs East West to ``not sell for importation,
import or sell after importation the Subject Articles . . . except
under consent or license from Complainant.'' Consent Order at ] 5. The
Consent Order defines ``Subject Articles'' as ``certain blowers and
components thereof that infringe claims 1, 2, 7-10, and 15 of the '834
Patent.'' Id. at ] 3.
On January 15, 2021, Regal filed an enforcement complaint at the
Commission alleging that East West's redesigned blower infringes claims
1, 2, 7-10, and 15 of the '834 patent in violation of the consent
order. On February 19, 2021, the Commission instituted a formal
enforcement proceeding, pursuant to Commission Rule 210.75(a), to
determine whether a violation of the consent order issued in the
original investigation has occurred and to determine what, if any,
enforcement measures are appropriate. 86 FR 10335 (Feb. 19, 2021). The
respondents named in the enforcement proceeding are the same as the
respondents named in the original investigation, i.e., East West
Manufacturing, LLC of Atlanta, Georgia, and East West Industries of
Binh Duong, Vietnam. Id. OUII was named as a party in the enforcement
proceeding. Id.
On March 1, 2021, East West filed a motion for monetary and other
sanctions alleging that Regal and its attorneys tampered with and
misrepresented the accused redesigned blower in the enforcement
complaint. Regal and OUII filed responses thereto on March 11, 2021,
and March 18, 2021, respectively. The presiding Administrative Law
Judge (``ALJ'') further permitted the private parties to file replies
and sur-replies to the sanctions briefing. EID at 16.
On June 29, 2021, the ALJ issued a Markman Order (Order No. 22),
styled ``Markman Claim Constructions With Abbreviated Rationales''
(``Markman Order I''). On July 13, 2021, the ALJ issued Order No. 23,
clarifying Order No. 22.
The ALJ held an evidentiary hearing from July 20-23, 2021 and
received post-hearing briefs thereafter. On September 22, 2021, the ALJ
held a supplemental hearing on the sanctions motion. EID at 18.
On October 29, 2021, the ALJ issued Order No. 32 (Markman Order
II), providing extensive explanations as to the adopted constructions
in Order No. 22.
On December 14, 2021, the ALJ issued the subject EID finding no
violation of the consent order. The EID found that the parties do not
contest personal jurisdiction, and that the Commission has in rem
jurisdiction over the accused products. EID at 19-20. The EID noted
that the private parties filed a ``Joint Stipulation on Importation and
Sales,'' describing ``the number of units of the Accused or Redesigned
Blower that East West imported and sold.'' Id. at 20. The EID found
that Regal failed to show that East West's redesigned blower infringes
asserted claims 1, 2, 7-10, and 15 of the '834 patent, and thus failed
to show a violation of the consent order. See id. at 9-10. The EID
states that ``in the event the Commission were to find to the contrary,
an imposed civil penalty should be de minimus and not the maximum civil
penalty that Regal has proposed.'' Id. at 10. Specifically, the EID
recommends that ``East West disgorge its profits plus an additional
one-half of its profits from any sales that violated the Consent
Order.'' Id. at 10-11.
On December 14, 2021, the ALJ also issued Order No. 36 denying East
West's motion for monetary sanctions. The ALJ issued a public warning
to Regal, citing the Commission's sanctions authority under Commission
Rule 210.4(c) and (d), 19 CFR 210.4(c), (d), and ordered Regal to
correct potentially misleading portions of the enforcement complaint.
On January 4, 2022, Regal filed a petition for review of the EID,
and Respondents filed a contingent petition for review of the EID and a
petition for review of Order No. 36. On January 10, 2022, the parties
replied to the petitions for review.
Having examined the record of this investigation, including the
EID, the petitions for review, and the responses thereto, the
Commission has determined to review the EID in its entirety. The
Commission has also determined to review Order No. 36.
The Commission does not request additional briefing from the
parties.
The Commission's vote on this determination took place on February
11, 2022.
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
210).
By order of the Commission.
Issued: February 11, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-03402 Filed 2-16-22; 8:45 am]
BILLING CODE 7020-02-P
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