Notice2024-11186
Certain Compact Wallets 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
Primary source
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Published
May 22, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's ("ALJ") final initial determination ("ID") finding a violation of section 337 in the above-captioned investigation. The Commission requests written submissions from the parties on the issues under review and submissions from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding under the schedule set forth below.
Full Text
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<title>Federal Register, Volume 89 Issue 100 (Wednesday, May 22, 2024)</title>
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[Federal Register Volume 89, Number 100 (Wednesday, May 22, 2024)]
[Notices]
[Pages 45010-45012]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11186]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1355]
Certain Compact Wallets 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
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 presiding
administrative law judge's (``ALJ'') final initial determination
(``ID'') finding a violation of section 337 in the above-captioned
investigation. The Commission requests written submissions from the
parties on the issues under review and submissions from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding under the schedule set forth
below.
FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2392. 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#5b1e1f120868133e372b1b2e28322f38753c342d"><span class="__cf_email__" data-cfemail="084d4c415b3b406d6478487d7b617c6b266f677e">[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
on March 15, 2023, based on a complaint filed by The Ridge Wallet, LLC
of Santa Monica, California (``Ridge'' or ``Complainant''). 88 FR
16030-031 (Mar. 15, 2023). The 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 compact wallets and components thereof by reason of trade dress
infringement and infringement of claims 1-4, 9, and 12-17 of U.S.
Patent No. 10,791,808 (``the '808 patent''). Id. The Commission's
notice of investigation named Rosemar Enterprises LLC d/b/a RossM
Wallet of Palm Springs, California (``RossM''); INSGG of Hangzhou City,
Zhejiang Province, China; Mosaic Brands, Inc. of Alamo, California
(``Mosaic''); Shenzhen Swztech Co., Ltd. d/b/a SWZA (``SWZA'') of
Shenzhen, Guangdong, China; and Shenzhen Pincan Technology Co., Ltd. d/
b/a ARW-Wallet (``ARW'') of Shenzhen, Guangdong, China as respondents.
The Office of Unfair Import Investigations (``OUII'') also participated
in this investigation.
After institution, Respondents RossM and INSGG were found in
default (collectively, the ``Defaulting Respondents''). See Order No.
12 (Jul. 11, 2023), unreviewed by Comm'n Notice (Jul. 28, 2023). In
addition, Respondent Mosaic was terminated from the investigation based
on settlement. See Order No. 16 (Sept. 6, 2023), unreviewed by Comm'n
Notice (Sept. 22, 2023).
Before the evidentiary hearing, the investigation was terminated as
to Ridge's trade dress allegations and as to Ridge's infringement
allegations with respect to claims 3, 4, 9, 12, 13, 15, 16, and 17 of
the '808 patent. See Order No. 25 (Oct. 6, 2023), unreviewed by Comm'n
Notice (Nov. 6, 2023).
Only Respondents SWZA and ARW (collectively, the ``Participating
Respondents'') participated at the evidentiary hearing held on November
6-7, 2023. After the hearing, counsel for the Participating Respondents
withdrew after being ``discharged'' by the Participating Respondents.
ID at 2 (citing Order No. 30 (Dec. 13, 2023)). The Participating
Respondents did not file post-hearing briefs. Id. at 3.
On March 15, 2024, the ALJ issued a combined final ID and
recommended
[[Page 45011]]
determination (``RD''), finding a violation of section 337 by the
Defaulting Respondents and the Participating Respondents. Specifically,
the final ID found, inter alia, that the importation requirement is
satisfied as to the accused products; that the accused products
infringe claims 1, 2, and 14 of the '808 patent; that Ridge has
satisfied the domestic industry requirement with respect to the '808
patent; and that claims 1, 2, and 14 have not been shown to be invalid.
In addition, the RD recommended that the Commission issue a general
exclusion order and a cease and desist order directed to each of the
respondents. The RD also recommended that the Commission impose a one-
hundred percent (100%) bond during the period of Presidential review.
On April 15, 2024, Ridge filed a statement on public interest
pursuant to Commission Rule 210.50(a)(4), 19 CFR 210.50(a)(4).
No petitions for review were filed, which means each party has
abandoned all issues decided adversely to that party. See 19 CFR
210.43(b)(4).
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, and the record evidence,
the Commission has determined to review the ID in part on its own
initiative. 19 CFR 210.44. Specifically, the Commission has determined
to review the ID's findings with respect to jurisdiction and the
economic prong.
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. Explain the basis for considering investments prior to the
issuance of a patent (pre-issuance investments) for purposes of a
domestic industry under 19 U.S.C. 1337(a)(3)(A) and (B). How do the
Federal Circuit's cases holding that there is an ``articles''
requirement for all subparagraphs (A)-(C) of section 337(a)(3) affect
the Commission's reasoning in Video Game Systems crediting engineering
and research and development investments that predate the issuance of a
patent under certain circumstances? See Certain Video Game Systems and
Controllers, Inv. No. 337-TA-743, Comm'n Op., 2011 WL 1523774, at *4
(Apr. 14, 2011); Motiva, LLC v. ITC, 716 F.3d 596, 600-601 (Fed. Cir.
2013) (citing Interdigital Commc'ns, LLC v. ITC, 707 F.3d 1295, 1297-98
(Fed. Cir. 2013) (``[J]ust as the ``plant or equipment'' referred to in
subparagraph (A) must exist with respect to articles protected by the
patent, such as by producing protected goods, the research and
development or licensing activities referred to in subparagraph (C)
must also exist with respect to articles protected by the patent, such
as by licensing protected products.'')).
2. Regardless of pre- or post-issuance status of investments, how
far back in time should the Commission look to in determining whether a
domestic industry exists in a section 337 investigation? What factors
should the Commission consider in determining the timeframe over which
investments may be counted towards a domestic industry analysis?
3. As of the filing of the complaint, how many full-time equivalent
(FTE) employees were employed by Complainant in the ``design and
development team'' working on product research, design, development,
and/or engineering work related to the domestic industry products?
4. Provide any information in the record about foreign labor
expenditures associated with the manufacturing of the domestic industry
products for the time period Aug. 2016-Feb. 2023, and also for the
narrower post-issuance time period Oct. 2020-Feb. 2023.
5. Provide any information in the record about foreign capital
expenditures associated with the manufacturing of the domestic industry
products for the time period Aug. 2016-Feb. 2023, and also for the
narrower post-issuance time period Oct. 2020-Feb. 2023.
6. Provide any information in the record about foreign plant and
equipment expenditures associated with the manufacturing of the
domestic industry products for the time period Aug. 2016-Feb. 2023, and
also for the narrower post-issuance time period Oct. 2020-Feb. 2023.
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.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested to state the date that the Asserted
Patent expires, 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 May 30, 2024.
Reply submissions must be filed no later
[[Page 45012]]
than the close of business on June 6, 2024. 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 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1355) 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 May 16,
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).
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant(s) complete service for any
party/parties without a method of electronic service noted on the
attached Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
By order of the Commission.
Issued: May 16, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-11186 Filed 5-21-24; 8:45 am]
BILLING CODE 7020-02-P
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