Notice2022-25687
Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same; Notice of Commission Determination To Review the Final Initial Determination in Part; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding
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Published
November 25, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the final initial determination ("Final ID") issued by the presiding chief administrative law judge ("CALJ") on September 9, 2022. The Commission requests briefing from the parties on certain issues under review, as indicated in this notice. The Commission also 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 226 (Friday, November 25, 2022)</title>
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[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Notices]
[Pages 72510-72512]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25687]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1265]
Certain Fitness Devices, Streaming Components Thereof, and
Systems Containing Same; Notice of Commission Determination To Review
the Final Initial Determination in Part; Request for Written
Submissions on the Issues Under Review and 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 U.S. International Trade
Commission has determined to review in part the final initial
determination (``Final ID'') issued by the presiding chief
administrative law judge (``CALJ'') on September 9, 2022. The
Commission requests briefing from the parties on certain issues under
review, as indicated in this notice. The Commission also 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: Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. 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#c782838e94f48fa2abb787b2b4aeb3a4e9a0a8b1"><span class="__cf_email__" data-cfemail="5316171a00601b363f231326203a27307d343c25">[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: The Commission instituted this investigation
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C.
1337, on May 19, 2021, based on a complaint filed by DISH DBS
Corporation of Englewood, Colorado; DISH Technologies, L.L.C., of
Englewood, Colorado; and Sling TV L.L.C., of Englewood, Colorado
(collectively, ``DISH''). 86 FR 27106-07 (May 19, 2021). The complaint
alleged a violation of section 337 based upon the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain fitness devices, streaming
components thereof, and systems containing same by reason of
infringement of certain claims of U.S. Patent Nos. 9,407,564 (``the
'564 patent''); 10,469,554 (``the '554 patent''); 10,469,555 (``the
'555 patent''); 10,757,156 (``the '156 patent''); and 10,951,680 (``the
'680 patent''). Id. at 27106. The notice of investigation named as
respondents ICON Health & Fitness, Inc. of Logan, Utah (``ICON'' or
``iFIT Inc.''); FreeMotion Fitness, Inc. of Logan, Utah
(``FreeMotion''); NordicTrack Inc. of Logan, Utah (``NordicTrack,'' and
with ICON and FreeMotion, ``iFit''); lululemon athletica inc., of
Vancouver, Canada (``lululemon''); Curiouser Products Inc. d/b/a MIRROR
of New York, New York (together with lululemon, ``MIRROR''); and
Peloton Interactive, Inc. of New York, New York (``Peloton,'' and with
the other respondents, ``Respondents''). Id.; Order No. 14 (Nov. 4,
2021), unreviewed by Comm'n Notice (Dec. 6, 2021), 86 FR 70532 (Dec.
10, 2021). The Commission's Office of Unfair Import Investigations
(``OUII'') also was named as a party in this investigation. 86 FR at
27106.
Prior to the issuance of the Final ID, the complaint and notice of
investigation were amended to change the name of ICON to iFIT Inc.
Order No. 14 (Nov. 4, 2021), unreviewed by Comm'n Notice (Dec. 6,
2021), 86 FR at 70532. The investigation was also terminated in part as
to claims 6, 11, and 12 of the '156 patent, claim 22 of the '554
patent, and claim 17 of the '555 patent. Order No. 15 (Nov. 19, 2021),
unreviewed by Comm'n Notice (Dec. 20, 2021). Moreover, claims 9 and 12
of the '156 patent, claim 19 of the '554 patent, claims 12 and 13 of
the '555 patent, and claim 6 of the '564 patent are no longer
[[Page 72511]]
asserted against iFit and Peloton. Id. The investigation was further
terminated as to claims 6-8, 10, and 13-15 of the '564 patent, claims 3
and 6-12 of the '156 patent, claims 18, 19, 21-25, and 30 of the '554
patent, claims 12, 13, 16, 17, 26, and 27 of the '555 patent, and all
asserted claims of the '680 patent. Order No. 21 (Mar. 3, 2022),
unreviewed by Comm'n Notice (Mar. 23, 2022).
At the time of the Final ID, DISH asserted the following claims
against MIRROR and iFit: claims 1, 3, and 5 of the '564 patent; claims
16, 17 and 20 of the '554 patent; claims 10, 11, 14, and 15 of the '555
patent; and claims 1, 4, and 5 of the '156 patent. DISH also asserted
the following claims against Peloton: claims 1 and 3-5 of the '564
patent; claims 16, 17, and 20 of the '554 patent; claims 10, 11, 14,
and 15 of the '555 patent; and claims 1, 2, 4, and 5 of the '156
patent.
On September 9, 2022, the CALJ issued the Final ID, which found
that Respondents violated section 337.
The CALJ's recommendation on remedy and bonding (the ``RD'')
recommended that, if the Commission finds a violation of section 337,
the Commission should issue a limited exclusion order and a cease and
desist order directed to each of the Respondents. The RD further
recommended that the Commission impose a zero percent (0%) bond during
the period of Presidential Review. The Commission did not direct the
CALJ to make findings and a recommendation on the statutory public
interest factors.
On September 23, 2022, Respondents and OUII filed petitions for
review of the Final ID. On October 3, 2022, DISH and OUII filed
responses to the petitions.
On October 11, 2022, DISH and Respondents filed their public
interest comments pursuant to Commission Rule 210.50(a)(4) (19 CFR
210.50(a)(4)).
Having examined the record in this investigation, including the
Final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the Final ID in part. In
particular, the Commission has determined to review the following:
(1) whether DISH satisfied the technical prong of the domestic
industry requirement as to all Asserted Patents;
(2) whether claims 16, 17, and 20 of the '554 patent and claims 14
and 15 of the '555 patent are entitled to claim priority to U.S. App.
No. 60/566,831;
(3) whether claims 16, 17, and 20 of the '554 patent and claims 14
and 15 of the '555 patent are invalid as anticipated over the prior
public use of the Move Media Player;
(4) whether the asserted claims of the '555 patent are invalid for
misjoinder of Mr. Brueck; and
(5) whether the preamble of claim 10 of the '555 patent is
limiting.
The parties are requested to brief their positions with reference
to the applicable law and the evidentiary record regarding the
questions provided below:
(1) Regarding whether DISH satisfied the technical prong of the
domestic industry requirement as to all Asserted Patents, if the
Commission determines that DISH's theory that the technical prong of
the domestic industry requirement can be satisfied by the combination
of its contended domestic industry products and third-party video
displays (whether that combination is assembled by DISH itself or by
its customers) was barred by Order No. 22 (Mar. 8, 2022):
(A) Has DISH failed to prove a violation of section 337?
(B) What is the scope and extent of factfinding that would be
required for the Commission to determine whether DISH satisfied the
technical prong of the domestic industry requirement?
(C) Should the Commission remand to the CALJ for further claim
construction regarding whether the ``presenting'' and ``providing''/
``provide'' claim limitations require a display (see Final ID at 109
n.18)?
(2) If the Commission determines that the final ID did not make a
finding as to whether Mr. Brueck is misjoined on the '555 patent:
(A) What is the scope and extent of factfinding that would be
required for the Commission to determine whether Mr. Brueck is
misjoined on the '555 patent?
(B) Should the Commission remand to the CALJ for resolving this
issue? And, if so, what should the scope of remand include?
The parties are invited to brief only these discrete questions. The
parties are not to brief other issues on review, which are adequately
presented in the parties' existing filings.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (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 are 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 (Dec. 1994).
The statute requires the Commission to consider the effects of that
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. In particular, the Commission requests that the
parties respond to the statements on the public interest submitted by
the parties.
In addition, the Commission requests specific briefing to address
the following questions relevant to the public interest considerations
in this investigation, including evidence in support:
(1) Would an exclusion order or cease and desist order affect
existing owners of Accused Products, and if so, how?
(2) To what extent and as to which statutory public interest
factor(s) should the Commission consider that DISH does not compete
with Respondents in the sale of internet-streaming enabled fitness
devices?
(3) Please discuss what alternatives, if any, to the Accused
Products would be available to U.S. consumers, including from third
parties, if the Commission were to issue remedial orders. Please
discuss price point, functionality, and/or any other information that
the parties believe would be useful to the Commission in evaluating the
availability of alternative fitness devices.
(4) Please explain whether an exclusion order or cease and desist
order would impact domestic production of like or directly competitive
products.
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
[[Page 72512]]
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 to the investigation are requested
to file written submissions on the questions identified in this notice.
Parties to the investigation, interested government agencies, and any
other interested parties are encouraged to file written submissions on
the issues of remedy, the public interest, and bonding. Such initial
written submissions should include views on the RD that issued on
September 9, 2022.
Initial written submissions, limited to 60 pages, must be filed no
later than the close of business on December 2, 2022. Complainants are
requested to identify the form of the remedy sought and Complainants
and OUII are requested to submit proposed remedial orders for the
Commission's consideration. Complainants are also requested to state
the HTSUS subheadings under which the accused articles are imported,
and to supply identification information for all known importers of the
accused products. Reply submissions, limited to 20 pages, must be filed
no later than the close of business on December 9, 2022. No further
submissions on 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-1265'') 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 at (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. A redacted
non-confidential version of the document must also be filed
simultaneously with 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 November
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).
Issued: November 18, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-25687 Filed 11-23-22; 8:45 am]
BILLING CODE 7020-02-P
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