Notice2023-14778
Certain Playards and Strollers; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a Violation; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of Target Date
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Published
July 12, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review in part a final initial determination ("ID") of the presiding administrative law judge ("ALJ"), finding a violation. The Commission requests written submissions from the parties on the issues under review and submissions 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 determined to extend the target date for completion of the investigation to August 28, 2023.
Full Text
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<title>Federal Register, Volume 88 Issue 132 (Wednesday, July 12, 2023)</title>
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[Federal Register Volume 88, Number 132 (Wednesday, July 12, 2023)]
[Notices]
[Pages 44396-44399]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-14778]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1288]
Certain Playards and Strollers; Notice of a Commission
Determination To Review in Part a Final Initial Determination Finding a
Violation; Request for Written Submissions on the Issues Under Review
and on Remedy, the Public Interest, and Bonding; Extension of Target
Date
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 determined to review in part a final
initial determination (``ID'') of the presiding administrative law
judge (``ALJ''), finding a violation. The Commission requests written
submissions from the parties on the issues under review and submissions
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 determined
to extend the target date for completion of the investigation to August
28, 2023.
FOR FURTHER INFORMATION CONTACT: Benjamin S. Richards, Esq., Office of
the General Counsel, U.S. International Trade Commission, 500 E Street
SW, Washington, DC 20436, telephone (202) 708-5453. 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#a2e7e6ebf191eac7ced2e2d7d1cbd6c18cc5cdd4"><span class="__cf_email__" data-cfemail="30757479630378555c407045435944531e575f46">[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
by publication in the Federal Register on December 27, 2021. 86 FR
73318 (Dec. 27, 2021). The complainants are
[[Page 44397]]
Graco Children's Products Inc., of Atlanta, GA (``Graco'') and
Wonderland Nurserygoods Co., Ltd. of Taipei, Taiwan (``Wonderland'').
Graco and Wonderland's complaint, as supplemented, alleged violations
of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337,
in the importation into the United States, the sale for importation, or
the sale within the United States after importation of certain playards
and strollers by reason of infringement of certain claims of U.S.
Patent Nos. 9,706,855 (``the '855 patent''); 9,414,694 (``the '694
patent''); RE43,919 (``the '919 patent''); and 6,979,017 (``the '017
patent''). Id. The complaint further alleged that a domestic industry
exists. Id. The Commission's notice of investigation named as
respondents Baby Trend, Inc. of Fontana, CA (``Baby Trend''); Dongguan
Golden Prosper Baby Products Co., Ltd., of Guangdong, China (``Golden
Prosper''); Sichuan Hobbies Baby Products Co., Ltd., of Sichuan, China
(``Sichuan Hobbies''); and Anhui Chile Baby Products Co., Ltd. of Anhui
Province, China (``Anhui Chile''). Id. The Office of Unfair Import
Investigations is not participating in the investigation. Id.
On April 1, 2022, the Commission determined not to review an ID
terminating the investigation as to the '017 patent. Order No. 7 (Mar.
7, 2022), unreviewed by Comm'n Notice (Apr. 1, 2022). On April 12,
2022, the Commission determined not to review an ID terminating the
investigation as to respondent Golden Prosper based on withdrawal of
the complaint. Order No. 8 (Mar. 23, 2022), unreviewed by Comm'n Notice
(Apr. 12, 2022). And, on December 14, 2022, the Commission determined
not to review an ID terminating the investigation as to claims 3-9, 11-
12, 14, and 16-20 of the '855 patent, claims 2, 4-9, 11-17, and 19-20
of the '694 patent, and claims 8, 10-12, 14-19, and 27-28 of the '919
patent as to all respondents, and terminating the investigation as to
claim 20 of the '919 patent as to respondents Sichuan Hobbies and Anhui
Chile (but not Baby Trend). Order No. 21 (Nov. 15, 2022), unreviewed by
Comm'n Notice (Dec. 14, 2022).
The ALJ held an evidentiary hearing from December 12-15, 2022, at
which point, only claims 1, 2, 10, 13, and 15 of the '855 patent and
claims 1, 10, and 18 of the '694 patent remained as to all respondents
and claim 20 of the '919 patent remained as to respondent Baby Trend.
At the time of the evidentiary hearing, there were three remaining
respondents in this investigation: Baby Trend, Sichuan Hobbies, and
Anhui Chile (``Respondents'').
On March 31, 2023, the ALJ issued the final ID in this
investigation. The ID found that a violation of section 337 has
occurred based on the respondents' importation and sale of products
that infringe certain claims of the '855 patent and the '694 patent. By
contrast, the ID found that no violation has occurred in connection
with the '919 patent. The ALJ issued his recommended determination
(``RD'') on remedy and bond concurrently with the ID. The RD
recommended issuance of a limited exclusion order (``LEO'') directed to
accused products that infringe the '855 or '694 patents. In addition to
the LEO, the RD recommended the issuance of a cease-and-desist order
(``CDO''). As to bond, the RD recommended a bond rate of 4% for the
product accused of infringing only the '919 patent and a bond rate of
59% for the remaining accused products.
The parties filed petitions for review of the ID on April 14, 2023,
and responses thereto on April 24, 2023.
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, and the petitions for
review, the Commission has determined to review the ID in part.
Specifically, the Commission has determined to review: (1) for the '855
patent, whether claim 15 is anticipated by Gabriella, and whether
claims 1, 2, 10, and 13 are obvious based on Troutman and Song or Hsia
and Song; (2) for the '694 patent, whether claim 18 is anticipated by
Hsia and whether claims 1 and 10 are obvious based on Troutman and
Tharalson; (3) the '919 patent in its entirety; and (4) whether the
technical and economic prongs of the domestic industry requirement are
met for all three patents.
In connection with its review, the 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) Must the Commission identify a reason that an ordinary artisan
would have been motivated to add legs like those claimed in claim 1 and
10 of the '855 patent (such as those disclosed in Song) to the
stationary bassinet of Troutman, as opposed to adding legs generally?
See, e.g., ID at 64 (``I find that Respondents have established that a
person of ordinary skill in the art would have been motivated to add
legs to Troutman's infant support unit.''). Does the evidence of record
demonstrate clearly and convincingly that such a motivation exists?
(2) On page five (5) of their petition for review, Respondents
identify ``[w]hether . . . Hsia anticipates . . . claim 18 of the '694
Patent'' as an issue for review. Identify where, if anywhere,
Respondents raised that issue in their pre- and/or post-hearing briefs
before the ALJ? Did the ALJ address that issue?
(3) What is the status of the Wonderland Nursery Goods Co., Ltd. v.
Baby Trend Inc., Case No. 5:14-cv-01153-JWH-SP, district court
decision? Is it a final decision? Has an appeal been filed? Must the
Commission give the judgment preclusive effect with regard to
invalidity under 35 U.S.C. 251?
(4) Did Respondents preserve the argument that the recited
``attachment structure'' in claim 20 of the '919 patent excludes
external fasteners?
(5) Is Complainants' argument that ``mount and secure'' as used in
the '919 patent requires only that the fabric member be ``held
securely'' along the inside of the support tubes a new claim
construction that is waived?
(6) Is there any evidence in the record that a skilled searcher
conducting a diligent search reasonably could have been expected to
discover Mariol, Tabarin, or Noblet?
(7) Should the Manufacturing Respondents, against whom claim 20 of
the '919 patent was not asserted, be allowed to assert a defense of
invalidity as to claim 20?
(8) For purposes of determining estoppel in a second proceeding,
does privity require that there be a relationship between Baby Trend
and the Manufacturing Respondents at the time of the first proceeding
or the second? Is the answer different for purposes of IPR estoppel?
Did Complainants establish that privity exists between Baby Trend and
the Manufacturing Respondents for the purposes of IPR estoppel?
(9) Did the ALJ address privity with regard to the second
Manufacturer Respondent, Anhui Chile?
(10) Do the customer-manufacturer contracts between Baby Trend and
each Manufacturing Respondent create privity for purposes of IPR
estoppel?
(11) Does claim 20 of the '919 patent require the Clamped/Slit
connection? Does the specification clearly and unequivocally disclose
any embodiments that do not use the Clamped/Slit connection?
(12) The Final ID considered the investments for the '855 and '694
patents together. See, e.g., ID at 118. If the Commission determines
that one or more claims of the '855 patent and/or '694 patent asserted
for purposes of domestic industry in this case have been shown to be
invalid, please identify,
[[Page 44398]]
with citations to the record, the appropriate domestic industry
investments attributable to each patent.
(13) Can investments made by an entity that is a contractor/
subcontractor, but is not a licensee of the complainant, be considered
part of the domestic industry under the facts in this investigation?
For purposes of determining significant or substantial investments or
employment with respect to articles that practice the patents asserted
in this investigation under section 337(a)(3), should the Commission
consider the actual investments made by the entity or the payments made
to that party by the Complainant for contracted manufacturing activity?
(14) Please discuss whether, in an investigation in which the DI
products are manufactured outside the United States, it is consistent
with the statute, legislative history, and court and Commission
precedent not to consider foreign manufacturing expenses in determining
the significance of domestic industry investments and expenditures.
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
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: 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. The parties should specifically address, among
other things, whether the Commission should issue a cease and desist
order as to all respondents or just to Baby Trend.
In its initial submission, Complainants are also requested to
identify the remedy sought and to submit proposed remedial orders for
the Commission's consideration. Complainants are 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 July 20, 2023. Reply submissions must be
filed no later than the close of business on July 27, 2023. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission. Opening submissions are limited to 75 pages. Reply
submissions are limited to 35 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-1288) 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 has also determined to extend the target date for
completion of this investigation to August 28, 2023.
The Commission vote for this determination took place on July 6,
2023.
[[Page 44399]]
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: July 6, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-14778 Filed 7-11-23; 8:45 am]
BILLING CODE 7020-02-P
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