Notice2022-06122
Certain Electric Shavers and Components and Accessories Thereof Commission Decision Finding a Violation of Section 337; Issuing a General Exclusion Order and Cease and Desist Orders; Terminating the Investigation
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Published
March 23, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to affirm the presiding administrative law judge ("ALJ's") initial determination ("ID") (Order No. 33) finding a violation of section 337 of the Tariff Act of 1930, as amended, in this investigation and has issued a general exclusion order and cease and desist orders prohibiting the importation of certain electric shavers and components and accessories thereof. The investigation is hereby terminated.
Full Text
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<title>Federal Register, Volume 87 Issue 56 (Wednesday, March 23, 2022)</title>
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[Federal Register Volume 87, Number 56 (Wednesday, March 23, 2022)]
[Notices]
[Pages 16495-16496]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-06122]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1230]
Certain Electric Shavers and Components and Accessories Thereof
Commission Decision Finding a Violation of Section 337; Issuing a
General Exclusion Order and Cease and Desist Orders; Terminating the
Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to affirm the presiding
administrative law judge (``ALJ's'') initial determination (``ID'')
(Order No. 33) finding a violation of section 337 of the Tariff Act of
1930, as amended, in this investigation and has issued a general
exclusion order and cease and desist orders prohibiting the importation
of certain electric shavers and components and accessories thereof. The
investigation is hereby terminated.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2532. 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#7e3b3a372d4d361b120e3e0b0d170a1d50191108"><span class="__cf_email__" data-cfemail="5613121f05651e333a261623253f223578313920">[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: On November 18, 2020, the Commission
instituted this investigation based on a complaint filed by Complainant
Skull Shaver (``Skull Shaver'') of Moorestown, New Jersey. 85 FR 73510-
11 (Nov. 18, 2020). The complaint alleged violations of section 337 of
the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based on the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain electric
shavers and components and accessories thereof by reason of
infringement of certain claims of U.S. Patent Nos. 8,726,528 (``the
'528 patent'') and D672,504 (``the '504 design patent''). Id. The
Commission's notice of investigation named the following eleven
entities as respondents: Rayenbarny Inc. (``Rayenbarny'') of New York,
New York; Bald Shaver Inc. (``Bald Shaver'') of Toronto, Canada; Suzhou
Kaidiya Garments Trading Co., Ltd. (``Suzhou'') d.b.a. ``Digimator'' of
Suzhou, China; Shenzhen Aiweilai Trading Co., Ltd. (``Aiweilei'')
d.b.a. ``Teamyo'' of Shenzhen, China; Wenzhou Wending Electric
Appliance Co., Ltd. of Yueqing City, China; Shenzhen Nukun Technology
Co., Ltd. (``Nukun'') d.b.a. ``OriHea'' of Shenzhen, China; Yiwu Xingye
Network Technology Co. Ltd. (``Yiwu Xingye'') d.b.a. ``Roziapro'' of
Yiwu, China; Magicfly LLC (``Magicfly'') of Hong Kong; Yiwu City Qiaoyu
Trading Co., Ltd. (``Yiwu City'') of Yiwu, China; Shenzhen Wantong
Information Technology Co., Ltd. (``Wantong'') d.b.a. ``WTONG'' of
Shenzhen, China; and Shenzhen Junmao International Technology Co., Ltd.
(``Junmao'') d.b.a. ``Homeas'' of Shenzhen, China. The notice of
investigation also named the Office of Unfair Import Investigations
(``OUII'') as a party. Id.
The Commission terminated Rayenbarny from the investigation because
its accused product was actually imported by Benepuri LLC
(``Benepuri'') of Menands, New York; the Commission allowed Benepuri to
intervene as a respondent. Notice, 85 FR 82514, 82515 (Dec. 18, 2020).
The Commission later granted Skull Shaver's motion to amend the
Complaint and the notice of investigation to correct the name of
Wenzhou Wending Electric Appliance Co., Ltd. d.b.a. ``Paitree'' as
Wenzhou Wending Electric Appliance Co., Ltd. (``Wenzhou''), and to
correct the addresses of several respondents. Notice, 86 FR 14645,
14645 (Mar. 17, 2021). The Commission terminated Magicfly from the
investigation on the basis of settlement. Notice at 2 (May 19, 2021).
The Commission terminated Nukun and Benepuri from the investigation on
the basis of withdrawal of the complaint. Notice at 2 (June 21, 2021)
(Nukun); Notice at 2 (Oct. 28, 2021) (Benepuri). All of the remaining
respondents (i.e., all respondents other than Magicfly, Nukun, Benepuri
and Rayenbarny) defaulted. See Notice at 3 (May 21, 2021) (seven
defaulting respondents); Notice at 2 (Dec. 9, 2021) (Bald Shaver
defaulting). Taken together, the eight defaulting respondents are:
Suzhou; Yiwu City; Wenzhou; Aiweilai; Junmao; Wantong; Yiwu Xingye; and
Bald Shaver.
On May 26, 2021, Skull Shaver filed a motion for summary
determination of
[[Page 16496]]
violation of section 337 by the eight defaulting respondents and for a
recommendation that the Commission issue a general exclusion order
(``GEO'') and cease and desist orders (``CDOs''). See Complainants'
Motion for Summary Determination of Violation and for Recommended
Determination on Remedy and Bonding. Skull Shaver accused Yiwu Xingye
and Yiwu City of infringing claims 1-3 of the '528 patent and the claim
of the '504 design patent. Id. at 5. It accused the other respondents
of infringing only claim 1 of the '528 patent. Id. On June 7, 2021,
OUII filed a response in support of Skull Shaver's motion. See
Commission Investigative Staff's Response to Skull Shaver's Motion for
Summary Determination of Violation. No respondent filed a response to
Skull Shaver's motion.
On September 23, 2021, OUII filed a notice of supplemental
authority concerning the domestic industry requirement. On September
28, 2021, the ALJ issued an order (Order No. 31) ordering certain
supplementation of Skull Shaver's domestic industry analysis. On
October 14, 2021, Skull Shaver submitted its supplement in response to
Order No. 31. No other responses to Order No. 31 were filed. On
November 18, 2021, the ALJ granted-in-part Skull Shaver's motion for
summary determination as the subject ID.
The ID found that Skull Shaver owns the asserted patents, and that
those patents are valid and enforceable. ID at 3. The ID further found
that although all respondents imported, sold for importation, or sold
within the United States after importation at least one accused
article, the only respondents whose articles infringe the asserted
patents are Yiwu Xingye and Yiwu City. Id. at 3-4. The ID found no
infringement as to the other respondents, whose products lack a second
recess, see ID at 51-52, in view of the ALJ's construction of
``recesses'' as ``indentations that are substantially concave
surfaces,'' id. at 16 (citation omitted), and Skull Shaver's forfeiture
of an infringement theory under the doctrine of equivalents, id. at 50
n.7. The ID found that personal jurisdiction is not necessary over each
defaulting respondent, but that the defaulting respondents waived any
opportunity to contest the allegation that personal jurisdiction
exists. Id. The ID further found that Skull Shaver meets the technical
prong and the economic prong of the domestic industry requirement. Id.
at 4. As to remedy, the RD found that there is a widespread pattern of
unauthorized use of the asserted patents and it is difficult to
identify the source of these products; and that a GEO is necessary to
prevent circumvention. Id. at 4. The RD also recommended issuance of
CDOs against the two infringing respondents, who are presumed to
maintain domestic inventories. RD at 80-81. The RD recommended a bond
rate of one hundred percent (100%) because complete pricing information
is not available. RD at 82.
No petitions for review of the ID were filed. The Commission
determined to review the ID's findings concerning the economic prong of
the domestic industry requirement, and not to review the ID's findings
on other issues. Notice, 87 FR 990, 991 (Jan. 7, 2022). The review
notice solicited written submissions, including on remedy, the public
interest, and bonding from the parties, interested government agencies,
and the public. Id.
In response to the Commission notice, Skull Shaver and OUII each
filed an opening submission and a reply. No other parties filed
submissions.
On review, the Commission has determined to affirm the ID's finding
that Skull Shaver has satisfied the economic prong of the domestic
industry requirement, and the Commission thereby affirms the ID's
finding of a violation of section 337.
The Commission finds that the RD's recommended remedy is
appropriate for the reasons set forth in the attached opinion.
Accordingly, the Commission finds that the appropriate remedy is: (1) A
general exclusion order prohibiting the entry of certain electric
shavers and components and accessories thereof; and (2) cease and
desist orders directed to Yiwu Xingye and Yiwu City. The Commission has
determined that the public interest factors enumerated in section
337(d), (f), and/or (g), 19 U.S.C. 1337(d), (f), (g), do not preclude
the issuance of the GEO or the CDOs.
The Commission has determined that a bond in the amount of one
hundred percent (100%) of the entered value of the subject articles is
required during the Presidential review period, 19 U.S.C. 1337(j) for
the reasons set forth in the RD and the attached Commission Opinion.
The investigation is hereby terminated.
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 complete service for any party
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 orders and opinion were delivered to the President
and the United States Trade Representative on the day of their
issuance.
The Commission vote for these determinations took place on March
17, 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: March 17, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-06122 Filed 3-22-22; 8:45 am]
BILLING CODE 7020-02-P
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