Notice2023-12149
Certain Automated Put Walls and Automated Storage and Retrieval Systems, Associated Vehicles, Associated Control Software, and Component Parts Thereof Notice of Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, The Public Interest, and Bonding
Primary source
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Published
June 7, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that on March 31, 2023, the presiding chief administrative law judge ("CALJ") issued a combined final initial determination ("ID") finding a violation of section 337 and a recommended determination ("RD") on remedy and bonding in the above- captioned investigation. The Commission has determined to review the final ID in part. 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 88 Issue 109 (Wednesday, June 7, 2023)</title>
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[Federal Register Volume 88, Number 109 (Wednesday, June 7, 2023)]
[Notices]
[Pages 37271-37273]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12149]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1293]
Certain Automated Put Walls and Automated Storage and Retrieval
Systems, Associated Vehicles, Associated Control Software, and
Component Parts Thereof Notice of Commission Determination To Review in
Part a Final Initial Determination Finding a Violation of Section 337;
Schedule for Filing Written Submissions 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 on March 31, 2023, the presiding
chief administrative law judge (``CALJ'') issued a combined final
initial determination (``ID'') finding a violation of section 337 and a
recommended determination (``RD'') on remedy and bonding in the above-
captioned investigation. The Commission has determined to review the
final ID in part. 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: 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#4a0f0e031979022f263a0a3f39233e29642d253c"><span class="__cf_email__" data-cfemail="2762636e74146f424b576752544e534409404851">[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 January 27, 2022, based on a complaint filed by OPEX Corporation
(``OPEX'') of Moorestown, New Jersey. 87 FR 4290-91 (Jan. 27, 2022).
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 automated put walls and automated storage and retrieval
systems, associated vehicles, associated control software, and
component parts thereof by reason of infringement of certain claims of
U.S. Patent Nos. 8,104,601 (``the '601 patent''), 8,276,740 (``the '740
patent''), 8,622,194 (``the '194 patent''), and 10,576,505 (``the '505
patent''). Id. at 4291. The complaint further alleges that a domestic
industry exists. Id. The notice of investigation named two respondents:
(1) HC Robotics (a.k.a. Huicang Information Technology Co., Ltd.) of
Hangzhou City, Zheijang Province, China; and (2) Invata, LLC (d/b/a
Invata Intralogistics) of Conshohocken, Pennsylvania (collectively,
``Respondents''). Id. The Office of Unfair Import Investigations is not
named as a party. Id.
On September 13, 2022, the Commission terminated the investigation
as to the OmniSort Generation 1 products based on a consent order.
Order No. 10 (Aug. 12, 2022), unreviewed by Comm'n Notice (Sept. 13,
2022). On October 11, 2022, the Commission terminated the
[[Page 37272]]
investigation as to (i) the '601 patent, (ii) the '740 patent, (iii)
asserted claims 2-4, 6, 10, 12-17, 19, and 20 of the '194 patent, and
(iv) asserted claims 14, 17, and 21 of the '505 patent based on OPEX's
partial withdrawal of the complaint. Order No. 12 (Sept. 23, 2022),
unreviewed by Comm'n Notice (Oct. 11, 2022). On December 19, 2022, the
Commission determined that the technical prong of the domestic industry
requirement is satisfied in this investigation as to the remaining
asserted patents--i.e., the '194 and '505 patents. See Order No. 17
(Nov. 23, 2022), unreviewed by Comm'n Notice (Dec. 19, 2022).
On March 31, 2023, the CALJ issued the subject final ID on
violation and RD on remedy and bonding. The ID finds violations of
section 337 with respect to asserted claims 1 and 5 of the '194 patent
and asserted claims 1-5, 7-9, 11-13, 15-16, and 18-20 of the '505
patent. Specifically, the ID finds that: (i) OPEX has standing to
assert both the '194 and '505 patents; (ii) the asserted claims listed
above are directly infringed by Respondents; (iii) Respondents both
induced and contributed to the infringement of each of the asserted
claims listed above; (iv) no asserted claim is invalid; and (v) OPEX
has satisfied the economic prong of the domestic industry requirement
as to both patents. The RD recommends that, should the Commission
determine that violations of section 337 occurred, the Commission
should: (i) issue a limited exclusion order against the Respondents'
infringing products; (ii) issue a cease and desist order against the
Respondents; and (iii) set a 100 percent bond for importations of
infringing products during the period of Presidential review.
On April 14, 2023, Respondents filed a petition for review of the
ID on violation, including the ID's findings concerning claim
construction, infringement, validity, and satisfaction of the economic
prong of the domestic industry requirement. On April 26, 2023, OPEX
filed a response opposing Respondents' petition.
The Commission did not receive submissions on the public interest
from the parties pursuant to Commission Rule 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. See 88 FR 23689 (Apr. 18, 2023).
The Commission has determined to review the ID in part.
Specifically, the Commission has determined to review the ID's finding
that OPEX has satisfied the economic prong of the domestic industry
requirement. The Commission has also determined to correct
typographical errors on pages 8, 35, and 38 of the ID. The Commission
has determined not to review the remaining findings in the ID.
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 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
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: 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 CALJ on remedy and bonding.
In its initial written submission, OPEX is also requested to
identify the remedy sought and to submit proposed remedial orders for
the Commission's consideration. OPEX is further requested to state the
dates that the asserted patents expire, 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 June 15, 2023. Reply
submissions must be filed no later than the close of business on June
22, 2023. 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-1293) 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
[[Page 37273]]
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 June 1,
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: June 2, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-12149 Filed 6-6-23; 8:45 am]
BILLING CODE 7020-02-P
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