Notice2022-05713
Certain Blowers and Components Thereof; Notice of a Commission Determination Finding No Violation of the Consent Order; Terminating the Enforcement Proceeding; and Remanding Order No. 36
Primary source
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Published
March 18, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to bifurcate its review of Order No. 36 from its review of the EID in the enforcement proceeding. The Commission has determined to affirm the enforcement initial determination ("EID") issued on December 14, 2021, finding no violation of the consent order issued in the above-referenced section 337 enforcement investigation with the modifications set forth in the accompanying Commission opinion. The enforcement proceeding is terminated. The Commission has determined to remand Order No. 36 to the Administrative Law Judge ("ALJ") for issuance of a revised order regarding sanctions as set forth in the Commission remand order. The Commission will consider Order No. 36 in the separate sanctions proceeding.
Full Text
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<title>Federal Register, Volume 87 Issue 53 (Friday, March 18, 2022)</title>
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[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Notices]
[Pages 15454-15455]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05713]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1217]
Certain Blowers and Components Thereof; Notice of a Commission
Determination Finding No Violation of the Consent Order; Terminating
the Enforcement Proceeding; and Remanding 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 bifurcate its review of Order No. 36 from
its review of the EID in the enforcement proceeding. The Commission has
determined to affirm the enforcement initial determination (``EID'')
issued on December 14, 2021, finding no violation of the consent order
issued in the above-referenced section 337 enforcement investigation
with the modifications set forth in the accompanying Commission
opinion. The enforcement proceeding is terminated. The Commission has
determined to remand Order No. 36 to the Administrative Law Judge
(``ALJ'') for issuance of a revised order regarding sanctions as set
forth in the Commission remand order. The Commission will consider
Order No. 36 in the separate sanctions proceeding.
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#2b6e6f627818634e475b6b5e58425f48054c445d"><span class="__cf_email__" data-cfemail="a4e1e0edf797ecc1c8d4e4d1d7cdd0c78ac3cbd2">[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 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
[[Page 15455]]
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. Regal opposed the motion and asked
for monetary sanctions in its response. 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
stated 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
recommended 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.
On February 11, 2022, the Commission determined to review the EID
and Order No. 36. 87 FR 9085-86 (Feb. 17, 2022).
Pursuant to 19 CFR 210.25, the Commission has determined to
bifurcate its review of Order No. 36 from its review of the EID. Upon
review of the parties' submissions, the EID, and the evidence of
record, the Commission has determined to affirm the EID's finding that
Regal failed to show that East West violated the Consent Order with the
modifications set forth in the accompanying Commission opinion. The
enforcement proceeding is terminated. The Commission has determined to
remand Order No. 36 to the ALJ for a revised order regarding sanctions
as set forth in the Commission remand order. The Commission will
consider Order No. 36 in the separate sanctions proceeding.
The Commission's vote on this determination took place on March 14,
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: March 14, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-05713 Filed 3-17-22; 8:45 am]
BILLING CODE 7020-02-P
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