Notice2022-07097
Certain Toner Supply Containers and Components Thereof (II); Commission Determination To Review in Part an Initial Determination Granting Complainants' Motion for Summary Determination of Violations of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding
Primary source
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Published
April 5, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the Commission has determined to review in part an initial determination ("ID") issued by the presiding chief administrative law judge ("CALJ") granting summary determination of violations of section 337. The Commission requests briefing from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding.
Full Text
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<title>Federal Register, Volume 87 Issue 65 (Tuesday, April 5, 2022)</title>
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[Federal Register Volume 87, Number 65 (Tuesday, April 5, 2022)]
[Notices]
[Pages 19707-19709]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07097]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1260]
Certain Toner Supply Containers and Components Thereof (II);
Commission Determination To Review in Part an Initial Determination
Granting Complainants' Motion for Summary Determination of Violations
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 Commission has determined to
review in part an initial determination (``ID'') issued by the
presiding chief administrative law judge (``CALJ'') granting summary
determination of violations of section 337. The Commission requests
briefing from the parties, interested government agencies, and
interested persons on the issues of remedy, the public interest, and
bonding.
FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3179. 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#fcb9b8b5afcfb499908cbc898f95889fd29b938a"><span class="__cf_email__" data-cfemail="1d5859544e2e5578716d5d686e74697e337a726b">[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 April 13, 2021, the Commission instituted
this investigation based on a complaint filed by Canon Inc. of Tokyo,
Japan; Canon U.S.A., Inc. of Melville, New York; and Canon Virginia,
Inc. of Newport News, Virginia (collectively, ``Canon''). 86 FR 19287-
88 (Apr. 13, 2021). The complaint, as supplemented, alleges violations
of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337)
(``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 toner supply containers and components thereof
by reason of infringement of certain claims of thirteen patents: U.S.
Patent Nos. 10,209,667; 10,289,060; 10,289,061; 10,295,957; 10,488,814;
10,496,032; 10,496,033; 10,514,654; 10,520,881; 10,520,882; 8,565,649
(``the '649 patent''); 9,354,551 (``the '551 patent''); and 9,753,402
(``the '402 patent''). Id. at 19287. The complaint further alleges that
a domestic industry (``DI'') exists. Id.
The Commission instituted two separate investigations based on the
complaint and defined the scope of the present investigation as whether
there is a violation of section 337 based on the allegations of
infringement as to the asserted claims of the '649, '551, and '402
patents (collectively, the ``Asserted Patents'') as to the accused
products identified in the notice of investigation (``NOI''). Id. The
NOI named eleven respondents: (1) Sichuan XingDian Technology Co., Ltd.
(``Sichuan XingDian'') of Sichuan, China; (2) Sichuan Wiztoner
Technology Co., Ltd. (``Sichuan Wiztoner'') of Sichuan, China; (3)
Anhuiyatengshangmaoyouxiangongsi (``Yatengshang'') of Ganyuqu, China;
(4) ChengDuXiangChangNanShiYouSheBeiYouXianGongSi (``ChengDuXiang'') of
SiChuanSheng, China; (5) Digital Marketing Corporation d/b/a Digital
Buyer Marketing Company (``Digital Buyer'') of Los Angeles, California;
(6) Do It Wiser, LLC d/b/a Image Toner of Wilmington, Delaware; (7)
Hefeierlandianzishangwuyouxiangongsi (``Erlandianzishang'') of
Chengdushi, China; (8) MITOCOLOR INC. (``TopInk'') of Rowland Heights,
California; (9) Xianshi yanliangqu canqiubaihuodianshanghang of
Shanxisheng, China; (10) Zhuhai Henyun Image Co., Ltd. of Zhuhai, China
(collectively, the ``Defaulting Respondents''); and (11) Shenzhenshi
Keluodeng Kejiyouxiangognsi (``KenoGen'') of Guangdong, China. Id. The
Office of Unfair Import Investigations (``OUII'') is also named as a
party. Id. at 19287-88. The question of whether there is a violation of
section 337 based on the allegations of infringement as to the asserted
claims of the remaining patents is the subject of the severed
investigation based on the same complaint, Inv. No. 337-TA-1259. See 86
FR 19284-86 (Apr. 13, 2021).
On May 27, 2021, the Commission granted Canon's motion to amend the
complaint and NOI to change the identification of Do It Wiser, LLC d/b/
a Image Toner to Do It Wiser, Inc. d/b/a Image Toner (hereinafter, ``Do
It Wiser'') and to make related changes in paragraph 31 of the
complaint. Order No. 6 (May 17, 2021), unreviewed by 86 FR 29806-07
(June 3, 2021).
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On September 7, 2021, the Commission terminated the following
asserted claims from the investigation based on Canon's withdrawal of
the complaint as to those claims: (i) Claim 2 of the '649 patent; (ii)
claims 2, 3, 6, and 7 of the '551 patent; and (iii) claims 25-27, 39-
41, and 46 of the '402 patent. Order No. 10 (Aug. 12, 2021), unreviewed
by Comm'n Notice (Sept. 7, 2021).
Also on September 7, 2021, the Commission terminated respondent
KenoGen from the investigation based on Canon's withdrawal of the
complaint as to KenoGen. Order No. 12 (Aug. 13, 2021), unreviewed by
Comm'n Notice (Sept. 7, 2021). As a result, the ten Defaulting
Respondents are the only respondents remaining in this investigation.
On October 29, 2021, the Commission found the Defaulting
Respondents in default for failing to respond to the complaint and NOI
and failing to show cause why they should not be found in default.
Order No. 15 (Sept. 29, 2021), unreviewed by Comm'n Notice (Oct. 29,
2021).
On October 1, 2021, Canon filed a motion seeking summary
determination that the Defaulting Respondents have violated section 337
and requesting that the CALJ recommend that the Commission issue a
general exclusion order (``GEO''), issue cease and desist orders
(``CDOs'') against certain respondents, and set a 100 percent bond for
any importations of infringing goods during the period of Presidential
review. On October 25, 2021, OUII filed a response supporting Canon's
motion and requested remedial relief. No Defaulting Respondent filed a
response to Canon's motion.
On February 11, 2022, the CALJ issued the subject ID granting
Canon's motion and finding violations of section 337 by the Defaulting
Respondents. Specifically, the ID finds that: (i) The Commission has
subject matter, personal, and in rem jurisdiction in this
investigation; (ii) Canon has standing to assert the Asserted Patents;
(iii) Canon has satisfied the importation requirement as to all
Defaulting Respondents; (iv) the accused products practice claims 1, 6,
7, 12, 25, and 26 of the '649 patent, claims 1, 4, and 5 of the '551
patent, and claims 1, 15-18, 32, 36, and 37 of the '402 patent; (v)
Canon has satisfied the technical prong of the DI requirement with
respect to the Asserted Patents; (vi) Canon has satisfied the economic
prong of the DI requirement with respect to the Asserted Patents; and
(vii) no claim of the Asserted Patents has been shown invalid. The
CALJ's recommended determination on remedy and bonding recommended that
the Commission: (i) Issue a GEO; (ii) issue CDOs against eight
respondents (i.e., Digital Buyer, Do It Wiser, TopInk, Sichuan
XingDian, Sichuan Wiztoner, Yatengshang, ChengDuXiang, and
Erlandianzishang); and (iii) set a 100 percent bond for any
importations of infringing products during the period of Presidential
review. No party petitioned for review of the subject ID.
The Commission did not receive any submissions on the public
interest from the parties pursuant to Commission Rule 210.50(a)(4) (19
CFR 210.50(a)(4)). The Commission also did not receive any submissions
on the public interest from members of the public in response to the
Commission's Federal Register notice. 87 FR 9379-80 (Feb. 18, 2022).
Having reviewed the record in this investigation, including the
subject ID, the Commission has determined to review the subject ID in
part with respect to the ID's analysis of the economic prong of the
domestic industry requirement. The Commission has determined not to
review the remainder of the ID.
In connection with the final disposition of this investigation, the
statute authorizes issuance of: (1) An exclusion order that could
result in the exclusion of the subject articles from entry into the
United States, and/or (2) cease and desist orders that could result in
the respondents 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 (December 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 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,
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, interested government agencies,
and any other interested parties are invited to file written
submissions on the issues of remedy, the public interest, and bonding.
Such submissions should include views on the recommended determination
by the CALJ on remedy and bonding.
In their initial written submissions, Canon and OUII are requested
to submit proposed remedial orders for the Commission's consideration.
Canon is further requested to identify the dates the Asserted Patents
expire, to provide the HTSUS subheadings under which the subject
articles are imported, and to supply identification information for all
known importers of the subject articles.
Initial written submissions, including proposed remedial orders,
must be filed no later than close of business on April 13, 2022. Reply
submissions must be filed no later than the close of business on April
20, 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 (Mar. 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1260) 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
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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. Any non-
party wishing to submit comments containing confidential information
must serve those comments on the parties to the investigation pursuant
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the
Commission and served on any parties to the investigation within two
business days of any confidential filing. 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 nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on March 30,
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 30, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-07097 Filed 4-4-22; 8:45 am]
BILLING CODE 7020-02-P
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