Notice2022-09601
Certain Toner Supply Containers and Components Thereof (I); Notice of 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, Public Interest, and Bonding
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Published
May 5, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in part an initial determination ("ID") issued by the presiding chief administrative law judge ("ALJ") 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.
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<title>Federal Register, Volume 87 Issue 87 (Thursday, May 5, 2022)</title>
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[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Notices]
[Pages 26783-26785]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09601]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1259]
Certain Toner Supply Containers and Components Thereof (I);
Notice of 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, 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 to review in part an initial determination
(``ID'') issued by the presiding chief administrative law judge
(``ALJ'') 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: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3228. 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#bbfefff2e888f3ded7cbfbcec8d2cfd895dcd4cd"><span class="__cf_email__" data-cfemail="6520212c36562d0009152510160c11064b020a13">[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 April 13, 2021, 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 Canon Inc. of Tokyo, Japan; Canon U.S.A., Inc. of Melville, New
York; and Canon Virginia, Inc. of Newport News, Virginia (collectively,
``Complainants''). See 86 FR 19284-86. The complaint, as supplemented,
alleges a violation of section 337 based upon the importation into the
United States, sale for importation, or sale after importation into the
United States of certain toner supply containers and components thereof
by reason of infringement of certain claims of U.S. Patent Nos.
10,209,667 (``the '667 patent''); 10,289,060 (``the '060 patent'');
10,289,061 (``the '061 patent''); 10,295,957 (``the '957 patent'');
10,488,814 (``the '814 patent''); 10,496,032 (``the '032 patent'');
10,496,033 (``the '033 patent''); 10,514,654 (``the '654 patent'');
10,520,881 (``the '881 patent''); 10,520,882 (``the '882 patent'');
8,565,649; 9,354,551; and 9,753,402. Id. The complaint further alleges
that a domestic industry 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 in the importation, sale for
importation, or sale within the United States after importation of
toner supply containers and components thereof by reason of
infringement of certain claims the '667 patent, the '060 patent, the
'061 patent, the '957 patent, the '814 patent, the '032 patent, the
'033 patent, the '654 patent, the '881 patent, and the '882 patent
(collective, ``the Asserted Patents''). Id.
The notice of investigation (``NOI'') names twenty-six respondents,
[[Page 26784]]
including twenty-two later found in default: (1) Sichuan XingDian
Technology Co., Ltd. (``Sichuan XingDian'') of Sichuan, China; (2)
Sichuan Wiztoner Technology Co., Ltd. (``Sichuan Wiztoner'') of
Sichuan, China; (3) Copier Repair Specialists, Inc. (``Copier Repair
Specialists'') of Lewisville, Texas; (4) Digital Marketing Corporation
d/b/a Digital Buyer Marketing Company (``Digital Buyer'') of Los
Angeles, California; (5) Ink Technologies Printer Supplies, LLC (``Ink
Tech'') of Dayton, Ohio; (6) Kuhlmann Enterprises, Inc. d/b/a Precision
Roller (``Precision Roller'') of Phoenix, Arizona; (7) NAR Cartridges
of Burlingame, California; (8) Zhuhai Henyun Image Co., Ltd. (``Zhuhai
Henyun'') of Zhuhai, China; (9) Zinyaw LLC d/b/a <a href="http://TonerPirate.com">TonerPirate.com</a> and
Supply District (``Zinyaw'') of Houston, Texas; (10) Do It Wiser, Inc.
d/b/a Image Toner (``Do It Wiser'') of Wilmington, Delaware; (11)
MITOCOLOR INC. (``MITOCOLOR'') of Rowland Heights, California; (12)
Anhuiyatengshangmaoyouxiangongsi (``Yatengshang'') of Ganyuqu, China;
(13) ChengDuXiangChangNanShiYouSheBeiYouXianGongSi (``ChengDuXiang'')
of SiChuanSheng, China; (14) Hefeierlandianzishangwuyouxiangongsi
(``Erlandianzishang'') of Chengdushi, China; (15) Xianshi yanliangqu
canqiubaihuodianshanghang (``CJ-us'') of Shanxisheng, China; (16)
Ninestar Corporation of Guangdong, China; (17) Ninestar Image Tech
Limited (``Ninestar Image'') of Guangdong, China; (18) Ninestar
Technology Company, Ltd. (``Ninestar Tech'') of Chino, California
(where Ninestar Corporation, Ninestar Image, and Ninestar Tech are
collectively, ``Ninestar Respondents''); (19) Static Control
Components, Inc. (``Static Control'') of Sanford, North Carolina; (20)
Easy Group, LLC (``Easy Group'') of Irwindale, California, LD Products,
Inc. (``LD Products'') of Long Beach, California; and (22) The Supplies
Guys, Inc. (``Supplies Guys'') of Lancaster, Pennsylvania;
(collectively, ``Defaulting Respondents''). Id. The NOI also includes
the following respondents who were previously terminated from the
investigation: General Plastic Industrial Co. Ltd. (``General
Plastic'') of Taichung, Taiwan; Katun Corporation (``Katun'') of
Minneapolis, Minnesota; Sun Data Supply, Inc. (``Sun Data Supply'') of
Los Angeles, California; and Shenzhenshi Keluodeng Kejiyouxiangognsi
(``KenoGen'') of Guangdong, China. Id. The Office of Unfair Import
Investigations (``OUII'') is also a party to the investigation. Id.
The complaint and NOI were later amended to correct the name of
originally-identified respondent, Do It Wiser, LLC d/b/a Image Toner,
to Do It Wiser, Inc. d/b/a Image Toner. Order No. 5 (May 13, 2021),
unreviewed by 86 FR 29292-93 (June 1, 2021).
Respondents Ninestar Respondents, Static Control, Easy Group, LD
Products, and Supplies Guys were previously found in default. Order No.
7 (June 22, 2021), unreviewed by Notice (July 6, 2021). In addition,
respondents Sichuan XingDian, Sichuan Wiztoner, Copier Repair
Specialists, Digital Buyer, Ink Tech, Precision Roller, NAR Cartridges,
Zhuhai Henyun, Zinyaw, Do It Wiser, MITOCOLOR, Yatengshang,
ChengDuXiang, Erlandianzishang, and CJ-us were previously found in
default. Order No. 18 (Sept. 28, 2021), unreviewed by Notice (Oct. 27,
2021).
Respondents General Plastic, Katun, and Sun Data Supply were
previously terminated from the investigation pursuant to consent order
stipulations. Order No. 10 (July 1, 2021), unreviewed by Notice (July
19, 2021). Respondent KenoGen was previously terminated from the
investigation based on partial withdrawal of the complaint. Order No.
13, unreviewed by Notice (Aug. 25, 2021).
The investigation was previously terminated as to certain claims of
the Asserted Patents. Order No. 11, unreviewed by Notice (Aug. 25,
2021).
On October 1, 2021, Canon filed a motion seeking summary
determination that the Defaulting Respondents have violated section 337
and requesting that the ALJ recommend that the Commission issue a
general exclusion order (``GEO'') and 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 12, 2021, OUII filed a response supporting Canon's
motion and requested remedial relief. None of the Defaulting
Respondents filed a response to Canon's motion.
On February 11, 2022, the ALJ 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, ID at 26-27; (ii) Canon has standing to assert the
Asserted Patents, id. at 27; (iii) Canon has satisfied the importation
requirement as to all Defaulting Respondents, id. at 28-51; (iv) the
accused products practice claim 1 of the '667 patent; claim 1 of the
'060 patent; claim 1 of the '061 patent; claim 1 of the '957 patent;
claims 1 and 12 of the '814 patent; claims 50, 58, and 61 of the '032
patent; claims 1 and 13 of the '033 patent; claims 46 and 50 of the
'654 patent; claims 1, 10, and 13 of the '881 patent; and claims 1 and
8 of the '882 patent, id. at 54-61; (v) Canon has satisfied the
technical prong of the DI requirement with respect to the Asserted
Patents, id. at 61-69; (vi) Canon has satisfied the economic prong of
the DI requirement with respect to the Asserted Patents, id. at 69-81;
and (vii) no claim of the Asserted Patents has been shown invalid, id.
at 82. The ALJ recommended that the Commission: (i) Issue a GEO, (ii)
issue CDOs against respondents Ninestar Tech, Static Control, Copier
Repair Specialists, Digital Buyer, Do It Wiser, Easy Group, Ink Tech,
Precision Roller, LD Products, NAR Cartridges, Supplies Guys,
MITOCOLOR, Zinyaw, Ninestar Corporation, Ninestar Image, 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. Id. at
84-102.
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 210.50(a)(4) (19
CFR 210.50(a)(4)). The Commission received one submission on the public
interest from a member of the public in response to the Commission's
Federal Register notice. 87 FR 16230-31 (March 22, 2022).
Having reviewed the record in this investigation, including the
subject ID, the Commission has determined to review the subject ID in
part. Specifically, the Commission has determined to review the ID's
findings with respect to whether terminated respondent Sun Data Supply
has satisfied the importation requirement. The Commission has also
determined to review 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
[[Page 26785]]
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 May 13, 2022. Reply
submissions must be filed no later than the close of business on May
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-1259) 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. 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 April 29,
2022.
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/
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 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 29, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-09601 Filed 5-4-22; 8:45 am]
BILLING CODE 7020-02-P
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