Notice2022-03404
Certain In Vitro Fertilization Products, Components Thereof, and Products Containing the Same; Commission Decision Not To Review a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding
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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 not to review a final initial determination ("FID") of the presiding Administrative Law Judge ("ALJ") finding a violation of section 337 by respondents Fast IVF of Scottsdale, Arizona ("Fast IVF") and Hermes Ezcanesi of Istanbul, Turkey (collectively, the "Defaulting Respondents"). The Commission also requests written submissions from the parties, interested government agencies and interested persons, under the schedule set forth below, on remedy, the public interest, and bonding.
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 9086-9088]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03404]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1196]
Certain In Vitro Fertilization Products, Components Thereof, and
Products Containing the Same; Commission Decision Not To Review a Final
Initial Determination Finding a Violation of Section 337; Schedule for
Filing 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 has determined not to review a final initial determination
(``FID'') of the presiding Administrative Law Judge (``ALJ'') finding a
violation of section 337 by respondents Fast IVF of Scottsdale, Arizona
(``Fast IVF'') and Hermes Ezcanesi of Istanbul, Turkey (collectively,
the ``Defaulting Respondents''). The Commission also requests written
submissions from the parties, interested government agencies and
interested persons, under the schedule set forth below, on remedy, the
public interest, and bonding.
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#3c7978756f0f7459504c7c494f55485f125b534a"><span class="__cf_email__" data-cfemail="a6e3e2eff595eec3cad6e6d3d5cfd2c588c1c9d0">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its
[[Page 9087]]
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 April 16, 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 complainant EMD Serono, Inc. of Rockland, Massachusetts
(``Complainant''). See 85 FR 21267-68 (Apr. 16, 2020). The complaint,
as amended and supplemented, alleges a violation of section 337 based
on the importation into the United States, the sale for importation,
and the sale within the United States after importation of certain in
vitro fertilization products, components thereof, and products
containing same (collectively, ``Gray Market IVF Products''), by reason
of infringement of U.S. Trademark Registration Nos. 4,689,651;
1,772,761; 3,777,170; 3,389,332; 3,816,320; 1,972,079; 3,604,207; and
3,185,427 (collectively, ``the Asserted Trademarks''); unfair methods
of competition and unfair acts in the importation and sale of Gray
Market IVF Products by reason of false designation of source; and
unfair methods of competition and unfair acts in the importation and
sale of the Gray Market IVF Products by reason of false advertising.
See id. In addition to the Defaulting Respondents, the notice of
investigation names General Plastik Drug Stores (``Unserved
Respondent'') of Istanbul Suadiye, Turkey as a respondent in this
investigation. See id. The Office of Unfair Import Investigations is
also a party to the investigation. See id.
On September 1, 2020, the Chief ALJ issued an initial determination
(``ID'') finding each of the Defaulting Respondents in default. See
Order No. 6 (Sept. 1, 2020), unreviewed by Comm'n Notice (Sept. 24,
2020). On October 13, 2020, the Chief ALJ also issued an ID terminating
Unserved Respondent from the investigation based on the withdrawal of
the complaint allegations as to that respondent. See Order No. 8 (Oct.
13, 2020), unreviewed by Comm'n Notice (Oct. 26, 2020).
On April 16, 2021, the Chief ALJ issued an ID (Order No. 10)
(``SD'') granting in part Complainant's motion for summary
determination of violation of section 337 by the Defaulting Respondents
with respect to Complainant's claim under section 337(a)(1)(C)
(infringement of the Asserted Trademarks) but denied the motion with
respect to Complainant's unfair competition claims under section
337(a)(1)(A). The SD also finds that Complainant has satisfied the
economic prong of the domestic industry requirement under subsection
(C) of section 337(a)(3).
On May 18, 2021, the Commission determined to review the SD (Order
No. 10) in part. See Comm'n Notice (May 18, 2021). Specifically, the
Commission determined to review the SD's findings with respect to the
economic prong of the domestic industry requirement. See id. The
Commission determined not to review any other findings in the SD.
On October 6, 2021, the Commission determined to vacate the SD in
part. Specifically, the Commission vacated the SD's finding that
Complainant has satisfied the economic prong of the domestic industry
requirement. Consequently, the Commission also vacated the SD's finding
of a violation of section 337 and remanded the investigation to the
Chief ALJ. Commissioners Karpel and Schmidtlein dissented from the
Commission's decision that Complainant had failed to satisfy the
economic prong of the domestic industry requirement and would have
found a violation of Section 337 based on substantial, reliable, and
probative evidence.
After the Commission decision to vacate the SD, EMD Serono
abandoned its request for a general exclusion order; thereafter, it
requested a limited exclusion order against both defaulting respondents
and a cease and desist order against FastIVF. See FID at 6 (citing
Motion Docket No. 1196-008 at 1 n.1, 8-9). On December 15, 2021, the
ALJ issued an ID partially terminating the investigation as to
Complainant's unfair competition claims under section 337(a)(1)(A). See
Order No. 13 (Dec. 15, 2021), unreviewed by Comm'n Notice (Jan 10,
2022).
On December 15, 2021, the ALJ issued the FID finding a violation of
section 337 based on the infringement by the Defaulting Respondents of
Complainant's Asserted Trademarks pursuant to section 337(g)(1), 19
U.S.C. 1337(g)(1). In addition, the ALJ recommended that the Commission
issue a limited exclusion order (``LEO'') against the infringing
articles imported by or on behalf of the Defaulting Respondents and a
cease and desist order (``CDO'') against FastIVF.
No petition for review of the FID was filed.
On January 4, 2022, Complainant filed a statement on the public
interest pursuant to Commission Rule 210.50, 19 CFR 210.50. On the same
day, Complainant filed a declaration requesting relief against the
Defaulting Respondents, namely, an LEO against the Defaulting
Respondents' infringing products and a CDO against FastIVF. No third-
party submissions were filed in response to the Federal Register notice
requesting public interest comments. See 86 FR 72620-21 (Dec. 22,
2021).
The Commission has determined not to review the FID.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent(s) 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).
If 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.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or 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
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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: 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 also address the recommended
determination by the ALJ on remedy and bonding. Complainant is also
requested to submit proposed remedial orders for the Commission's
consideration. Complainant is further requested to provide the HTSUS
numbers under which the accused products are imported, and to supply
the names of known importers of the products at issue in this
investigation.
Written submissions and proposed remedial orders must be filed no
later than close of business on February 28, 2022. Reply submissions
must be filed no later than the close of business on March 7, 2022. 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-1196'') 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.
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant(s) complete service for any
party/parties without a method of electronic service noted on the
attached Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
The Commission's vote for 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
part 210).
By order of the Commission.
Issued: February 11, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-03404 Filed 2-16-22; 8:45 am]
BILLING CODE 7020-02-P
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</html>Indexed from Federal Register on February 17, 2022.
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