Notice2022-16788
Certain Toner Supply Containers and Components Thereof (I); Notice of Commission Final Determination Finding a Violation of Section 337; Issuance of a General Exclusion Order and Cease and Desist Orders; Termination of the Investigation
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Published
August 5, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has found a violation of section 337 of the Tariff Act of 1930, as amended, in this investigation and has issued a general exclusion order ("GEO") prohibiting the importation of certain infringing toner supply containers and components thereof, as well as cease and desist orders ("CDOs") against certain defaulting respondents. The investigation is terminated.
Full Text
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<title>Federal Register, Volume 87 Issue 150 (Friday, August 5, 2022)</title>
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[Federal Register Volume 87, Number 150 (Friday, August 5, 2022)]
[Notices]
[Pages 48039-48041]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16788]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1259]
Certain Toner Supply Containers and Components Thereof (I);
Notice of Commission Final Determination Finding a Violation of Section
337; Issuance of a General Exclusion Order and Cease and Desist Orders;
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
Commission (``Commission'') has found a violation of section 337 of the
Tariff Act of 1930, as amended, in this investigation and has issued a
general exclusion order (``GEO'') prohibiting the importation of
certain infringing toner supply containers and components thereof, as
well as cease and desist orders (``CDOs'') against certain defaulting
respondents. The investigation is terminated.
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#c683828f95f58ea3aab686b3b5afb2a5e8a1a9b0"><span class="__cf_email__" data-cfemail="eda8a9a4bedea588819dad989e84998ec38a829b">[email protected]</span></a>. General information concerning the Commission
[[Page 48040]]
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 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,
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; (21) 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 names 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).
The Commission previously found the Ninestar Respondents, Static
Control, Easy Group, LD Products, and Supplies Guys in default. Order
No. 7 (June 22, 2021), unreviewed by Notice (July 6, 2021). The
Commission also previously found 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 in default.
Order No. 18 (Sept. 28, 2021), unreviewed by Notice (Oct. 27, 2021).
The Commission previously terminated respondents General Plastic,
Katun, and Sun Data Supply from the investigation pursuant to consent
order stipulations. Order No. 10 (July 1, 2021), unreviewed by Notice
(July 19, 2021). The Commission further terminated respondent KenoGen
from the investigation based on partial withdrawal of the complaint.
Order No. 13, unreviewed by Notice (Aug. 25, 2021).
The Commission also previously terminated investigation 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 GEO
and 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 May 15, 2022, the presiding Chief Administrative Law Judge
(``CALJ'') issued an initial determination (``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 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; (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
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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 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. 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 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).
On April 29, 2022, the Commission determined to review the ID in
part. 87 FR 26783-85 (May 5, 2022). Specifically, the Commission
determined to review the ID's findings with respect to whether
terminated respondent Sun Data Supply has satisfied the importation
requirement and the ID's analysis of the economic prong of domestic
industry requirement. Id. The Commission further requested briefing on
remedy, bonding, and the public interest. Id.
On May 13, 2022, Canon and OUII filed initial written responses to
the Commission's request for briefing. On May 19, 2022, OUII filed its
reply submission. On May 20, 2022, Canon filed its reply submission.
Having reviewed the record of the investigation, including the ID
and Canon's and OUII's submissions, the Commission has found a
violation of section 337 with respect to Defaulting Respondents. The
Commission vacates the ID's findings with respect to whether terminated
respondent Sun Data Supply has satisfied the importation requirement.
The Commission affirms, with modified analysis, the ID's findings that
the economic prong of the domestic industry requirement has been
satisfied under section 337(a)(3)(A) and (B). See 19 U.S.C.
1337(a)(3)(A), (B). (Commissioner Kearns finds the economic prong
satisfied under section 337(a)(3)(A) and takes no position with respect
to section 337(a)(3)(B)). (Commissioner Stayin does not join the
Commission's analysis, but joins the Commission's determination that
Canon has satisfied the economic prong of the domestic industry
requirement.) The Commission also corrects two typographical errors on
pages 71 and 80 of the ID, as explained in the Commission's opinion.
The Commission has determined that the appropriate remedy in this
investigation is: (1) a GEO prohibiting the unlicensed entry of certain
toner supply containers and components thereof that infringe one or
more of 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; or claims 1 and 8 of the '882 patent; and
(2) CDOs against 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. The Commission finds that the public interest factors
do not preclude issuance of the requested relief. See 19 U.S.C.
1337(d)(1), (f)(1), (g)(1). The Commission has also determined that the
bond during the period of Presidential review shall be in the amount of
100 percent of the entered value of the Accused Products that are
subject to the GEO and CDOs. See 19 U.S.C. 1337(j).
The Commission's reasoning in support of its determinations is set
forth more fully in its opinion. The Commission's opinion and orders
were delivered to the President and to the United States Trade
Representative on the day of their issuance. The investigation is
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 vote for this determination took place on August 1,
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: August 1, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-16788 Filed 8-4-22; 8:45 am]
BILLING CODE 7020-02-P
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