Notice2024-28146
Certain Icemaking Machines and Components Thereof; Notice of a Commission Determination To Review 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; Extension of the Target Date
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Published
December 2, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review a final initial determination ("ID") of the chief administrative law judge ("CALJ"), finding a violation of section 337 in this investigation. 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 this investigation to February 13, 2025.
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<title>Federal Register, Volume 89 Issue 231 (Monday, December 2, 2024)</title>
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[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Notices]
[Pages 95233-95235]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28146]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1369]
Certain Icemaking Machines and Components Thereof; Notice of a
Commission Determination To Review 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; Extension of the 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 a final initial
determination (``ID'') of the chief administrative law judge
(``CALJ''), finding a violation of section 337 in this investigation.
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 this investigation to February 13, 2025.
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#397c7d706a0a715c5549794c4a504d5a175e564f"><span class="__cf_email__" data-cfemail="e0a5a4a9b3d3a8858c90a09593899483ce878f96">[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: On August 16, 2023, the Commission
instituted this investigation based on a complaint filed by Hoshizaki
America, Inc. of Peachtree City, Georgia (``Hoshizaki''). 88 FR 55721-
22 (Aug. 16, 2023). The complaint alleges 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, or the
sale within the United States after importation of certain icemaking
machines and components thereof by reason of the infringement of one or
more of claims 1-3, 6-8, and 11-20 of U.S. Patent No. 10,107,538 (``the
'538 patent''); claims 1-4, 10-13, and 16 of U.S. Patent No. 10,113,785
(``the '785 patent''); and claims 1, 2, 5-9, and 11-14 of U.S. Patent
No. 10,458,692 (``the '692 patent''). Id. at 5572. The Commission's
notice of investigation named as respondents Blue Air FSE LLC of
Gardena, California; and Bluenix Co., Ltd. of Gyeonggi-do, Republic of
Korea (collectively, ``Bluenix''). The Office of Unfair Import
Investigations was also named as a party in this investigation, but
ceased participating on October 13, 2023. Id.; see also EDIS Doc. ID
805894.
The CALJ issued IDs terminating the following claims from the
investigation at Hoshizaki's request: claims 2, 8, 11-18, and 20 of the
'538 patent; claims 2-4, 11-13, and 16 of the '785 patent; and claims
2, 6-8, and 11-14 of the '692 patent. Order No. 9 (Dec. 19, 2023),
unreviewed, Comm'n Notice, EDIS Doc. ID 811832 (Jan. 11, 2024); Order
No. 15 (Apr. 8, 2024), unreviewed, Comm'n Notice, EDIS Doc. ID 819782
(Apr. 26, 2024).
On April 25, 2024, the CALJ issued an ID granting Hoshizaki's
unopposed motion for summary determination that Hoshizaki satisfied the
domestic industry requirement. Order No. 16 (Apr. 25, 2024). The
Commission reviewed and then affirmed that ID. Comm'n Notice, EDIS Doc.
ID 822414 (May 29, 2024).
The CALJ conducted an evidentiary hearing from May 6, 2024, through
May 10, 2024.
On August 30, 2024, the CALJ issued his final ID on violation. That
ID found that a violation of section 337 had occurred in the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain icemaking
machines and components thereof that infringe certain claims of the
'538, '785, and '692 patents. On September 16, 2024, Bluenix filed a
petition for review of the ID, and Hoshizaki filed a contingent
petition for review of the ID. On September 23, 2024, Bluenix filed a
response to Hoshizaki's contingent petition for review. On September
24, 2024, Hoshizaki filed a response to Bluenix's petition for review.
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the CALJ, the evidentiary record,
and the parties' petitions for review and responses thereto, the
Commission has determined to review the ID in part. Specifically, the
Commission has determined to review the ID's infringement findings for
the '785 and '692 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) For the '785 and '692 patents, please address whether the
``function'' of the ``inner flat portion'' limitation for purposes of
the doctrine of equivalents analysis should include the overall
function of making ice or be more narrowly defined to just the
separation of active and passive cavities. As a legal matter, should
the doctrine of equivalents analysis focus on the specific function of
the claim limitation or the overall function of the claimed invention?
See AquaTex Indus., Inc. v. Techniche Sols., 479 F.3d 1320, 1326-27
(Fed. Cir. 2007) (finding error where the identified function of
promoting evaporation was for the filler layer as a whole rather than
the specific function of the ``fiberfill batting material''
limitation). As a factual matter, please address what role, if any, the
inner flat portions play with respect to the formation and harvesting
of ice in the claimed invention. See, e.g., '785 patent at 5:23-27
(``The degree to which ice extends over the inner flat portions 30
[[Page 95234]]
and the adjacent second protrusions 38 is determined, at least in part,
by the length of time that water is applied to the front and rear
plates 14, 16 during the ice forming cycle.'').
(2) Please address whether the difference between an inner flat
portion (as claimed) and a slightly curved inner portion (as found in
the accused products) will affect the ``way'' in which ice is formed
(i.e., by preventing the formation of ``boundary layers,'' or due to
less surface area of contact between the plates and the water that
forms ice during the cooling and harvesting cycles, or due to the shape
of the surrounding tubing coil). See RRB at 18-20.
(3) Please address the ``result'' that should be considered for
purposes of the doctrine of equivalents analysis, e.g., the efficiency
of the icemaking process or the quantity or quality of ice produced
from the icemaking machine. Please address whether the difference
between an inner flat portion (as claimed) and a slightly curved inner
portion (as found in the accused products) will affect that result.
(4) Assuming that the icemaking function should be considered in
determining equivalency, please address the expert testimony and other
supporting evidence for or against your positions in response to the
questions above (and in particular why the final ID found Dr. Tanbour's
testimony to be more credible than Bluenix's expert). See ID at 72
n.20.
(5) Please address any evidence of record indicating what
constitutes ``slightly curved inner portions'' in the accused products
as characterized in the ID. ID at 69. Will the degree of curvature of
the inner portion make a difference in an assessment of whether an
accused product is equivalent to the claimed ``inner flat portion''?
(6) For purposes of applying the function-way-result test for
equivalence, if you contend that that function of the claimed ``inner
flat portions'' is something other than ``separat[ing] active and
passive cavities, which are, in turn, interspersed so as to define ice
forming sites,'' ID at 70, indicate whether and where you raised that
contention in the post-hearing briefing before the CALJ. Similarly,
indicate whether and where you raised that contention in your petition
for review of the ID. If you did not contend before the CALJ or in a
petition for review that the function of the ``inner flat portions'' is
something other than the function identified in the ID, explain why
that contention has or has not now been forfeited, waived, or
abandoned.
(7) Do you contend that the asserted claims of the '785 and '692
patents are limited to evaporators comprising oval-shaped refrigerant
conduits? If so, explain where that limitation appears in the '785 and
'692 patents.
(8) Do you contend that the asserted claims of the '785 and '692
patents limit the surface area of the claimed ``inner flat portions''
to a particular size or range of sizes? If so, explain where that
limitation appears in the '785 and '692 patents.
(9) Do you contend that the asserted claims of the '785 and '692
patents are limited to evaporators that meet a certain efficiency
threshold? If so, explain where that limitation appears in the '785 and
'692 patents.
(10) Do you contend that the evaporators claimed in the asserted
claims of the '785 and '692 patents are limited to the dimensions shown
in figure 2 of those patents? If so, explain why your contention is not
in conflict with Hockerson-Halberstadt, Inc. v. Avia Grp. Int'l, Inc.,
222 F.3d 951, 956 (Fed. Cir. 2000) (``[I]t is well established that
patent drawings do not define the precise proportions of the elements
and may not be relied on to show particular sizes if the specification
is completely silent on the issue.'').
(11) In testifying regarding a lack of equivalence between the
claimed ``inner flat portions'' of the '785 and '692 patents and the
accused structures in the accused products, see tr. 521:2-526:13, did
Bluenix's expert witness treat the dimensions shown in figure 2 of the
'785 and '692 patents as limiting?
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/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.
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 CALJ on
remedy and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and to submit proposed remedial orders for
the Commission's consideration. Complainant 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 December 9, 2024. Reply submissions must be filed
no later than the close of business on December 16, 2024. No further
[[Page 95235]]
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 60 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 (Mar. 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1369) 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 February 13, 2025.
The Commission vote for this determination took place on November
25, 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: November 25, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-28146 Filed 11-29-24; 8:45 am]
BILLING CODE 7020-02-P
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