Notice2023-00236
Certain Robotic Floor Cleaning Devices and Components Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; and Extension of the Target Date for Completion of the Investigation
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Published
January 10, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in part a final initial determination ("ID") of the presiding administrative law judge ("ALJ") finding a violation of section 337 by the accused products of respondents. The Commission requests written submissions from the parties on the issues under review and from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below. The Commission has also extended the target date for completion of the investigation to March 6, 2023.
Full Text
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<title>Federal Register, Volume 88 Issue 6 (Tuesday, January 10, 2023)</title>
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[Federal Register Volume 88, Number 6 (Tuesday, January 10, 2023)]
[Notices]
[Pages 1405-1407]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00236]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1252]
Certain Robotic Floor Cleaning Devices and Components Thereof;
Notice of a Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions on the Issues Under Review and on Remedy, the Public
Interest, and Bonding; and Extension of the Target Date for Completion
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 has determined to review in part a final initial
determination (``ID'') of the presiding administrative law judge
(``ALJ'') finding a violation of section 337 by the accused products of
respondents. The Commission requests written submissions from the
parties on the issues under review and from the parties, interested
government agencies, and other interested persons on the issues of
remedy, the public interest, and bonding, under the schedule set forth
below. The Commission has also extended the target date for completion
of the investigation to March 6, 2023.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2310. 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#d590919c86e69db0b9a595a0a6bca1b6fbb2baa3"><span class="__cf_email__" data-cfemail="6722232e34542f020b172712140e130449000811">[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: The Commission instituted this investigation
on March 2, 2021, based on a complaint filed on behalf of iRobot
Corporation (``iRobot'') of Bedford, Massachusetts. 86 FR 12206-07
(Mar. 2, 2021). The complaint alleged violations of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain robotic
floor cleaning devices and components thereof based on the infringement
of certain claims of U.S. Patent Nos. 9,884,423 (``the '423 patent'');
7,571,511 (``the '511 patent''); 10,813,517 (``the '517 patent'');
10,835,096 (``the '096 patent''); and 10,296,007 (``the '007 patent'').
The Commission's notice of investigation named SharkNinja Operating
LLC, SharkNinja Management LLC, SharkNinja Management Co., SharkNinja
Sales Co., and EP Midco LLC, all of Needham, Massachusetts; and
SharkNinja Hong Kong Co. Ltd. of Hong Kong Island, Hong Kong as
respondents (collectively, the ``Respondents'' or ``SharkNinja''). The
Office of Unfair Import Investigations is not participating in the
investigation.
The '007 patent has been terminated from the investigation. See
Order No. 23 (Sept. 13, 2021), unreviewed by Comm'n Notice (Oct. 5,
2021); Order No. 38 (Jan. 4, 2022), unreviewed by Comm'n Notice (Jan.
25, 2022). Accordingly, at the ALJ's evidentiary hearing, claims 9, 12,
and 23 of the '423 patent; claims 12 and 23 of the '511 patent; claims
1 and 9 of the '517 patent; and claims 17 and 26 of the '096 patent
were still pending.
On December 30, 2021, the ALJ issued a Markman Order (Order No. 37)
construing the terms in dispute for all asserted patents.
On October 7, 2022, the ALJ issued the final ID finding: (1) a
violation of section 337 based on infringement (i.e., direct and
induced) of asserted claims 9 and 12 of the '423 patent and direct
infringement of asserted claims 1 and 9 of the '517 patent; (2) no
infringement of claim 23 of the '423 patent; (3) no violation as to
claims 17 and 26 of the '096 patent; and (4) no violation as to claims
12 and 23 of the '511 patent. The ID further found that: (1) the second
category of SharkNinja's Series 3 redesigned products is not subject to
adjudication; (2) iRobot has satisfied the domestic industry
requirement with respect to all remaining patents in the investigation;
(3) SharkNinja failed to prove, by clear and convincing evidence, that
asserted claims 9, 12, and 23 of the '423 patent are invalid under 35
U.S.C. 101, 102, or 103. The ALJ recommended, should the Commission
find a violation, issuing a limited exclusion order directed to
SharkNinja's infringing products and a cease and
[[Page 1406]]
desist order directed to SharkNinja and requiring a bond in the amount
of twenty percent (20%) for importation of infringing articles during
the period of Presidential review.
On October 24, 2022, SharkNinja and iRobot each petitioned for
review of certain aspects of the final ID. On November 1, 2022,
SharkNinja and iRobot each filed a response in opposition to each
other's petition for review.
On November 16, 2022, SharkNinja filed a motion to submit notice
that the U.S. Patent Trial and Appeal Board (``PTAB'') issued a Final
Written Decision (``FWD'') (Nov. 14, 2022) finding, inter alia,
asserted claims 12 and 23 of the '423 patent unpatentable. On November
18, 2022, iRobot filed a response in opposition to the motion. On
December 1, 2022, SharkNinja filed a motion to submit information
regarding iRobot's failure to appeal a PTAB FWD rendering the asserted
claims of the '511 patent unpatentable. The Commission has determined
to grant both motions.
The Commission received no public interest comments from the public
in response to the Commission's Federal Register notice seeking comment
on the public interest. 87 FR 62451-52 (Oct. 14, 2022). iRobot
submitted public interest comments pursuant to Commission Rule
210.50(a)(4) (19 CFR 210.50(a)(4)).
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, and the parties'
briefing to the Commission, the Commission has determined to review the
final ID in part. Specifically, the Commission has determined to review
the ID's findings that: (1) for the '511 patent, estoppel applies to
the Trilobite prior art device and claims 1, 10, 12, and 23 are invalid
based on the PTAB's finding that the claims are unpatentable; (2) for
the '423 patent, (i) claim 9 of the '423 patent is practiced by the
domestic industry products; (ii) SharkNinja's accused robots with
forward-docking, i.e., the IQ, AI, and AI-WD products, do not infringe
claim 23 of the '423 patent; (iii) the prior art Dottie robot does not
anticipate claim 23 of the '423 patent; (iv) the prior art combination
of Dottie and Everett and the prior art combination of Dottie and Kim
do not render claims 12 or 23, respectively, of the `423 patent obvious
under 35 U.S.C. 103; (v) iRobot presented insufficient evidence of
secondary considerations of non-obviousness with respect to claim 23;
and (vi) claim 23 of the '423 patent is directed to patent-eligible
subject matter under 35 U.S.C. 101; (3) for the '517 patent, (i) the
``receiving system'' for claims 1 and 9 is not means-plus-function;
(ii) claims 1 and 9 are infringed by SharkNinja's accused products;
(iii) claims 1 and 9 are practiced by iRobot's domestic industry
products; and (iv) claims 1 and 9 are not anticipated by the asserted
prior art (Kawakami); and (4) for all remaining asserted patents, i.e.,
the '511, '423, '517, and '096 patents, iRobot satisfied the economic
prong of the domestic industry requirement.
The Commission has determined not to review the remainder of the
final ID, including the final ID's finding of no violation as to the
'096 patent.
The Commission has also determined to extend the target date for
completion of the investigation to March 6, 2023.
In connection with its review, Commission requests responses to the
following questions. The parties are requested to brief their positions
with reference to the applicable law and the existing evidentiary
record.
1. With respect to claim 12 of the '423 patent, assuming that a
person of ordinary skill in the art would have been familiar with the
interchangeability of sonar and infrared signals, is there evidence in
the record (please cite specifically) that suggests that a person of
ordinary skill in the art would have been motivated to combine the
Dottie robot with the left and right signal docking system disclosed in
Everett? Please also include (by citing specifically to the record) any
relevant evidence of secondary considerations of non-obviousness with
respect to claim 12.
2. If the Commission were to agree with SharkNinja's argument in
its petition for review that the ``receiving system'' term of the
asserted claims of the '517 patent should be construed as means-plus-
function, (i) what would be the function and the corresponding
structure (and equivalents thereof) described in the specification, and
(ii) what is the impact on infringement, the technical prong of the
domestic industry requirement, and invalidity (i.e., anticipation by
Kawakami)?
The parties are invited to brief only the discrete issues requested
above. 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
Commission may (1) issue an order that results in the exclusion of the
subject articles from entry into the United States, and/or (2) issue a
cease and desist order that could result in the respondent 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).
When the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
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.
When 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
section 337(j), 19 U.S.C. 1337(j) and the 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. 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 issues 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
submissions should address the recommended determination by the ALJ on
remedy and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and is requested to submit proposed remedial
orders for the Commission's consideration.
[[Page 1407]]
Complainant is further requested to provide the HTSUS subheadings under
which the accused products are imported and to supply the
identification information for all known importers of the products at
issue in this investigation. The initial written submissions and
proposed remedial orders must be filed no later than close of business
on January 18, 2023. Reply submissions must be filed no later than the
close of business on January 25, 2023. No further submissions on these
issues will be permitted unless otherwise ordered by the Commission.
Opening submissions are limited to 30 pages. Reply submissions are
limited to 20 pages. 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 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1252) 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 January 4,
2023.
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: January 4, 2023.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2023-00236 Filed 1-9-23; 8:45 am]
BILLING CODE 7020-02-P
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