Notice2024-05455
Certain Tobacco Heating Articles and Components Thereof; Notice of Commission Decision To Institute a Rescission Proceeding and to; Termination of the Rescission Proceeding
Primary source
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Published
March 14, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to institute a rescission proceeding and to rescind the limited exclusion order ("LEO") and cease and desist orders ("CDOs") issued in the underlying investigation. The rescission proceeding is terminated.
Full Text
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<title>Federal Register, Volume 89 Issue 51 (Thursday, March 14, 2024)</title>
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[Federal Register Volume 89, Number 51 (Thursday, March 14, 2024)]
[Notices]
[Pages 18668-18669]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05455]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1199 (Rescission)]
Certain Tobacco Heating Articles and Components Thereof; Notice
of Commission Decision To Institute a Rescission Proceeding and to;
Termination of the Rescission Proceeding
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 institute a rescission proceeding and to
rescind the limited exclusion order (``LEO'') and cease and desist
orders (``CDOs'') issued in the underlying investigation. The
rescission proceeding 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#8fcacbc6dcbcc7eae3ffcffafce6fbeca1e8e0f9"><span class="__cf_email__" data-cfemail="4d0809041e7e0528213d0d383e24392e632a223b">[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: On May 15, 2020, 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 RAI Strategic Holdings, Inc., R.J. Reynolds Vapor Company, and R.J.
Reynolds Tobacco Company, all of Winston-Salem, North Carolina
(collectively, ``Complainants''). See 85 FR 29482-83. The complaint, as
supplemented, alleges a violation of section 337 based upon the
importation of certain tobacco heating articles and components thereof
by reason of infringement of certain claims of U.S. Patent Nos.
9,839,238 (``the '238 patent''); 9,930,915 (``the '915 patent'');
9,901,123 (``the '123 patent). The complaint also alleges the existence
of a domestic industry. The notice of investigation names the following
respondents: Altria Client Services LLC (``ACS'') and Philip Morris
USA, Inc. (``PM USA'') both of Richmond, Virginia, and Philip Morris
Products S.A. (``PMPSA'') of Neuchatel, Switzerland (collectively,
``Respondents''). See id. The Office of Unfair Import Investigations
(``OUII'') is also a party to the investigation. See id.
On September 29, 2021, the Commission issued a final determination
finding a violation of section 337, based on Respondents' infringement
of claims 1-3 and 5 of the '915 patent and claims 27-30 of the '123
patent, but not the '238 patent. See 86 FR 54998-99 (Oct. 5, 2021). The
Commission further determined to issue an LEO against Respondents'
infringing products and CDOs against PM USA and ACS (collectively,
``the remedial orders''). See id. The Commission determined not to
impose a bond during the period of Presidential review. See id.
On December 1, 2021, Respondents filed an appeal from the
Commission's final determination with the U.S. Court of Appeals for the
Federal Circuit. See Philip Morris Products S.A. v. ITC, Appeal No.
2022-1227. On March 31, 2023, the Federal Circuit issued a precedential
opinion affirming the Commission's decision in full. See Philip Morris
Products S.A. v. ITC, 63 F.4th 1328 (Fed. Cir. 2023).
On February 8, 2024, Complainants and Respondents filed a joint
petition to rescind the remedial orders based on a settlement agreement
between Complainants and PMPSA. Pursuant to Commission Rule
210.76(a)(3), 19 CFR 210.76(a)(3), the petition asserts that it
includes a confidential and public version of the underlying agreement.
The petition also includes a statement that there are no other
agreements, written or oral, express or implied between the parties
concerning the subject matter of the investigation.
On February 20, 2024, OUII filed a response stating that it did not
support the joint petition as filed. Specifically, OUII argued the
joint petition did not substantially comply with the requirements of
Commission Rule 210.76(a)(3) because: (1) the attached Schedule 3.1
Patent License Agreement is not signed, and (2) respondents ACS and PM
USA are not parties to the agreement. OUII further argued that only
PMPSA should be rescinded from the remedial orders.
On February 22, 2024, Complainants and Respondents filed a joint
supplement to their petition. The joint supplement attaches the fully
executed Patent License Agreement as set forth in Schedule 3.1 of the
Settlement Agreement. The joint supplement also includes a discussion
as to the scope of the settlement agreement. OUII did not file a
further response to the joint supplement to the petition.
Having reviewed the joint petition, OUII's response thereto, the
joint supplement to the petition, and the record of the investigation,
the Commission has determined that the joint petition, as supplemented
with the fully executed Patent License Agreement, complies with the
Commission's rules and therefore granting the petition is warranted
under 19 U.S.C. 1337(k) and 19 CFR 210.76. The Commission has also
determined that the scope of the settlement agreement does not preclude
rescission of all of the remedial orders issued. See 86 FR 13731-33
(Mar. 10, 2021)
[[Page 18669]]
(Commission rescinded remedial orders based on petition to rescind
filed solely by complainant).
Accordingly, the Commission has determined to institute a
rescission proceeding and to rescind the remedial orders. The
rescission proceeding is terminated.
The Commission's vote on this determination took place on March 11,
2024.
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: March 11, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-05455 Filed 3-13-24; 8:45 am]
BILLING CODE 7020-02-P
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