Notice2025-00322
Certain Rolled-Edge Rigid Plastic Food Trays; Notice of Commission Determination to Institute a Rescission Proceeding and to Temporarily Suspend a Limited Exclusion Order
Primary source
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Published
January 10, 2025
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 temporarily suspend enforcement of a limited exclusion order ("LEO") issued in the underlying investigation.
Full Text
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<title>Federal Register, Volume 90 Issue 6 (Friday, January 10, 2025)</title>
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[Federal Register Volume 90, Number 6 (Friday, January 10, 2025)]
[Notices]
[Page 2023]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00322]
[[Page 2023]]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1203 (Rescission)]
Certain Rolled-Edge Rigid Plastic Food Trays; Notice of
Commission Determination to Institute a Rescission Proceeding and to
Temporarily Suspend a Limited Exclusion Order
AGENCY: 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
temporarily suspend enforcement of a limited exclusion order (``LEO'')
issued in the underlying investigation.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. 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#eca9a8a5bfdfa489809cac999f85988fc28b839a"><span class="__cf_email__" data-cfemail="0b4e4f425838436e677b4b7e78627f68256c647d">[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 June 23, 2020, the Commission instituted
this investigation based on a complaint filed on behalf of Clearly
Clean Products, LLC of South Windsor, Connecticut, and Converter
Manufacturing, LLC of Orwigsburg, Pennsylvania (together,
``Complainants''). 85 FR 37689-90 (Jun. 23, 2020). The complaint
alleged 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, and the sale within the United States
after importation of certain rolled-edge rigid plastic food trays that
infringe claim 9 of U.S. Patent No. 9,908,281 (``the '281 patent'') and
claims 1, 12, 20, and 21 of U.S. Patent No. 10,562,680 (``the '680
patent''). Id. at 37689-90. The complaint also alleged that a domestic
industry exists. Id. at 37689. The Commission's notice of investigation
names as respondents Eco Food Pak (USA), Inc. of Chino, California
(``Eco Food Pak''), and Ningbo Linhua Plastic Co., Ltd. of Xiwu, China
(``Ningbo Linhua Plastic''). Id. at 37690. The Office of Unfair Import
Investigations participated in this investigation. Id.
The investigation was terminated with respect to Eco Food Pak based
on the entry of a consent order. Order No. 6 (Oct. 1, 2020), unreviewed
by Comm'n Notice (Oct. 20, 2020).
On October 6, 2020, the Commission found Ningbo Linhua Plastic in
default for failing to respond to the complaint, the notice of
investigation, and an order to show cause why it should not be found in
default. Order No. 7 (Oct. 6, 2020), unreviewed by Comm'n Notice (Oct.
20, 2020). On February 25, 2021, the Commission issued a LEO against
Ningbo Linhua Plastic with respect to claims claim 9 of the '281 patent
and claims 1, 12, 20, and 21 of the '680 patent, and terminated the
investigation.
On December 4, 2024, Ningbo Linhua Plastic filed a petition to
rescind the LEO because the subject patent claims were found
unpatentable by the United States Patent and Trademark Office's
(``USPTO'') Patent Trial and Appeal Board (``PTAB''). Ningbo Linhua
Plastic provided the PTAB's final written decisions that found, inter
alia, that claim 9 of the '281 patent and claims 1, 12, 20, and 21 of
the '680 patent are unpatentable, as well as the U.S. Court of Appeals
for the Federal Circuit's affirmances of those final written decisions
and denials of en banc review. Ningbo Linhua Plastic asserts that the
unpatentability of the patent claims in the limited exclusion order is
now final and unappealable, and constitutes a changed circumstance that
warrants recission of the limited exclusion order pursuant to 35 U.S.C.
1337(k)(1) and 19 CFR 210.76.
On December 13, 2024, Complainants filed a response opposing the
rescission of the LEO. Complainants argue that patent claims are valid
until the USPTO cancels the claims, which cannot occur until after the
time of filing for a writ of certiorari expires or the completion of a
U.S. Supreme Court appeal. Complainants state that Converter
Manufacturing LLC intends to seek a writ of certiorari for U.S. Supreme
Court review of the appeal prior to the February 10, 2025 deadline.
Having reviewed Ningbo Linhua Plastic's petition seeking to rescind
the LEO and Complainants' response, the Commission has determined to
institute a recission proceeding. Based on the Federal Circuit's
summary affirmance of the PTAB's final written decisions regarding the
invalidity of the LEO's subject claims and its denial of Complainant's
petition for rehearing en banc, the Commission finds that the
conditions which led to the LEO no longer exist, and are unlikely to be
reinstated, under 19 U.S.C. 1337(k)(1) and (2)(B). The Commission also
finds that the requirements of Commission Rule 210.76(a) (19 CFR
210.76(a)) are satisfied. Because the LEO's patent claims are still
subject to U.S. Supreme Court appeal, the Commission has determined to
grant partial relief and to temporarily suspend enforcement of the LEO
pending the cancellation of its subject patent claims or the reversal
or vacatur of the Federal Circuit's decisions. The Commission Order
issued concurrently herewith temporarily suspends enforcement of the
LEO.
The Commission has determined that no other actions are necessary
at this time, so the rescission proceeding remains pending, and the
parties are instructed to keep the Commission apprised of any
significant developments on appeal or at the USPTO.
The Commission vote for this determination took place on January 3,
2025.
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: January 3, 2025.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2025-00322 Filed 1-8-25; 8:45 am]
BILLING CODE 7020-02-P
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