Notice2022-08605
Certain Apparatus and Methods of Opening Containers; Notice of a Final Determination Finding Violations of Section 337; Issuance of a General Exclusion Order; Termination of the Investigation
Primary source
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Published
April 22, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to affirm an initial determination ("ID") (Order No. 11) of the then-presiding chief administrative law judge ("CALJ") granting summary determination that certain defaulting respondents have violated section 337 of the Tariff Act of 1930, as amended, by importing, selling for importation, or selling in the United States after importation certain apparatus and methods of opening containers that infringe claim 12 of U.S. Patent No. 10,519,016 ("the '016 patent"). The Commission has determined that the appropriate remedy is a general exclusion order excluding infringing container opening apparatuses. The Commission has also determined to set a bond in the amount of 100 percent of the entered value of the excluded products imported during the period of Presidential review. This investigation is hereby terminated.
Full Text
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<title>Federal Register, Volume 87 Issue 78 (Friday, April 22, 2022)</title>
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[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Notices]
[Pages 24199-24201]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08605]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1255]
Certain Apparatus and Methods of Opening Containers; Notice of a
Final Determination Finding Violations of Section 337; Issuance of a
General Exclusion Order; Termination of 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
[[Page 24200]]
Commission has determined to affirm an initial determination (``ID'')
(Order No. 11) of the then-presiding chief administrative law judge
(``CALJ'') granting summary determination that certain defaulting
respondents have violated section 337 of the Tariff Act of 1930, as
amended, by importing, selling for importation, or selling in the
United States after importation certain apparatus and methods of
opening containers that infringe claim 12 of U.S. Patent No. 10,519,016
(``the '016 patent''). The Commission has determined that the
appropriate remedy is a general exclusion order excluding infringing
container opening apparatuses. The Commission has also determined to
set a bond in the amount of 100 percent of the entered value of the
excluded products imported during the period of Presidential review.
This investigation is hereby terminated.
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#2461606d77176c4148546451574d50470a434b52"><span class="__cf_email__" data-cfemail="b1f4f5f8e282f9d4ddc1f1c4c2d8c5d29fd6dec7">[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 March 18, 2021, the Commission instituted
this investigation based on a complaint filed by Draft Top, LLC
(``Draft Top'') of Long Beach, New Jersey. 86 FR 14765 (Mar. 18, 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 apparatus and methods of opening containers by reason of
infringement of claim 12 of the '016 patent. Id. The complaint further
alleges that a domestic industry exists. Id. The notice of
investigation (``NOI'') named nine respondents: KKS Enterprises Co.,
Ltd. of Hangzhou, China; Kingskong Enterprises Co., Ltd. of Hangzhou,
China; Du Zuojun of Shenzhen, Guangdong, China; WN Shipping USA, Inc.
of Inwood, New York; Shuje Wei of Pomona, California; Express Cargo
Forwarded, Ltd. of Los Angeles, California; Hou Wenzheng of Hebron,
Kentucky (collectively, the ``Defaulting Respondents''); Mintiml of
Yangzhou, Jiangsu, China; and Tofba International, Inc. (``Tofba'') of
Hawthorne, California. Id. The Office of Unfair Import Investigations
(``OUII'') is also named as a party. Id.
The Commission subsequently terminated respondents Tofba and
Mintiml from the investigation based on Draft Top's withdrawal of the
complaint as to those respondents. See Order No. 6 (May 12, 2021),
unreviewed by Comm'n Notice (May 27, 2021) (terminating Tofba); Order
No. 9 (Aug. 11, 2021), unreviewed by Comm'n Notice (Aug. 24, 2021)
(terminating Mintiml).
On July 29, 2021, the Commission found the seven 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. 8 (July 12, 2021), unreviewed by Comm'n Notice (July 30,
2021). The Defaulting Respondents are the only respondents remaining in
this investigation.
On August 20, 2021, Draft Top filed a motion seeking summary
determination that the Defaulting Respondents have violated section 337
and requesting that the Commission issue a general exclusion order and
set a 300 percent bond for any importations of infringing goods during
the period of Presidential review. On September 17, 2021, Draft Top
filed a supplement to its motion concerning certain ``inadvertently
omitted'' evidence of its domestic expenditures in 2020. That same day,
OUII filed a response supporting Draft Top's motion and requested
remedial relief except on the issue of bonding, submitting instead that
a bond of 100 percent, not 300 percent, is appropriate. No Defaulting
Respondent filed a response to Draft Top's motion.
On December 20, 2021, the former CALJ issued the subject ID
granting Draft Top's motion and finding violations of section 337 by
the Defaulting Respondents. Specifically, the ID finds that: (i) Draft
Top satisfied the importation requirement as to the Defaulting
Respondents; (ii) the Commission has subject matter, personal, and in
rem jurisdiction in this investigation; (iii) the Defaulting
Respondents' accused products practice claim 12 of the '016 patent;
(iv) claim 12 of the '016 patent has not been shown invalid; and (v)
Draft Top satisfied the technical and economic prongs of the domestic
industry requirement as to the '016 patent. The ID also includes the
CALJ's recommended determination on remedy and bonding, recommending
that the Commission issue a general exclusion order and set a 100
percent bond for any importations of infringing products during the
period of Presidential review. No party petitioned for review of the
ID.
The Commission did not receive any submissions on the public
interest from the parties pursuant to Commission Rule Sec.
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 238-39
(Jan. 4, 2022).
On February 3, 2022, the Commission determined not to review the
ID's grant of summary determination of violations of section 337. 87 FR
7499-501. The Commission's notice also requested written submissions on
remedy, the public interest, and bonding. Id. On February 17, 2022,
Draft Top and OUII filed initial written submissions in response to the
Commission's notice. On February 24, 2022, Draft Top and OUII filed
reply written submissions. No other submissions were received.
Having examined the record in this investigation, including the
parties' submissions, the Commission has determined that the
appropriate remedy is a general exclusion order prohibiting the
unlicensed importation of container opening apparatuses that infringe
claim 12 of the '016 patent, pursuant to section 337(d)(2), (19 U.S.C.
1337(d)(2)). The Commission has determined that the public interest
factors do not preclude issuance of this remedial order. The Commission
has also determined to set a bond in the amount of 100 percent of the
entered value of the excluded products imported during the period of
Presidential review (19 U.S.C. 1337(j)). The Commission issues its
opinion herewith setting forth its determinations on certain issues.
The Commission's order and opinion were delivered to the President and
United States Trade Representative on the day of their issuance. This
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 Sec. Sec. 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
[[Page 24201]]
of Service and shall file proof of service on the Electronic Document
Information System (EDIS).
The Commission vote for this determination took place on April 18,
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: April 18, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-08605 Filed 4-21-22; 8:45 am]
BILLING CODE 7020-02-P
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