Notice2025-18254
Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same; Notice of a Commission Determination To Review and, on Review, To Affirm a Remand Initial Determination Finding That Complainant Has Satisfied the Economic Prong of the Domestic Industry Requirement; Request for Briefing on Remedy, the Public Interest, and Bonding
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 22, 2025
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review a remand initial determination ("RID") of the presiding administrative law judge ("ALJ"), finding that PAX Labs, Inc. ("Complainant") satisfied the economic prong of the domestic industry requirement under section 337 of the Tariff Act of 1930, as amended. On review, the Commission has determined to affirm the RID's finding that Complainant satisfied the economic prong of the domestic industry requirement under section 337(a)(3)(A) and (B).\1\ The Commission requests written 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. ---------------------------------------------------------------------------
Full Text
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<title>Federal Register, Volume 90 Issue 181 (Monday, September 22, 2025)</title>
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[Federal Register Volume 90, Number 181 (Monday, September 22, 2025)]
[Notices]
[Pages 45410-45413]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-18254]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1392]
Certain Oil Vaporizing Devices, Components Thereof, and Products
Containing the Same; Notice of a Commission Determination To Review
and, on Review, To Affirm a Remand Initial Determination Finding That
Complainant Has Satisfied the Economic Prong of the Domestic Industry
Requirement; Request for Briefing 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 (``Commission'') has determined to review a remand initial
determination (``RID'') of the presiding administrative law judge
(``ALJ''), finding that PAX Labs, Inc. (``Complainant'') satisfied the
economic prong of the domestic industry requirement under section 337
of the Tariff Act of 1930, as amended. On review, the Commission has
determined to affirm the RID's finding that Complainant satisfied the
economic prong of the domestic industry requirement under section
337(a)(3)(A) and (B).\1\ The Commission requests written 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.
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\1\ Commissioner Johanson concurs with the Commission's finding
of a domestic industry under subsection 337(a)(3)(B) based on
alternative reasoning as set forth in his separate views in this
investigation, and he takes no position on Complainant's investments
under 337(a)(3)(A).
FOR FURTHER INFORMATION CONTACT: B. Rashmi Borah, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2518. 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#4e0b0a071d7d062b223e0e3b3d273a2d60292138"><span class="__cf_email__" data-cfemail="1451505d47275c7178645461677d60773a737b62">[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
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on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on March 6, 2024, based on a complaint filed by Complainant. 89 FR
16025-26 (Mar. 6, 2024). The complaint, as supplemented, alleges
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337 (``section 337''), in the importation into the United
States, the sale for importation, or the sale within the United States
after importation of certain oil vaporizing devices, components
thereof, and products containing the same by reason of infringement of
certain claims of U.S. Patent Nos. 11,369,756 (``the '756 patent'');
11,766,527 (``the '527 patent''); 11,369,757 (``the '757 patent''); and
11,759,580 (``the '580 patent'') (together, the ``Asserted Patents'').
Id. The complaint further alleges that a domestic industry exists. Id.
The Commission's notice of investigation named as respondents STIIIZY
IP LLC f/k/a STIIIZY, LLC; STIIIZY, Inc. d/b/a
[[Page 45411]]
Shryne Group Inc. (collectively, ``STIIIZY''); ALD Group Limited; and
ALD Hong Kong Holdings (collectively, ``ALD'') (together,
``Respondents'') Id. The Office of Unfair Import Investigations is not
participating in the investigation. Id.
The Commission previously terminated the investigation as to claims
4 and 21 of the '527 patent. Order No. 11 (July 11, 2024), unreviewed
by Comm'n Notice (July 30, 2024). The Commission also terminated the
investigation as to claims 2, 3, 6-9, and 11-17 of the '756 patent;
claims 3-8, 10-12, 14, and 17-19 of the '757 patent; claims 2-3, 6-9,
12-16, 19, 20, 24, 25, and 27-29 of the '527 patent; and claims 2-5, 9,
12-15, and 19 of the '580 patent. Order No. 20 (Sept. 6, 2024),
unreviewed by Comm'n Notice (Oct. 7, 2024).
The ALJ held an evidentiary hearing from October 21-23, 2024.
After the hearing, the Commission terminated the investigation as
to claims 2, 9, and 16 of the '757 patent; claims 23, 26, and 30 of the
'527 patent; and claims 11, 16-18, and 20 of the '580 patent. Order No.
32 (Nov. 8, 2024), unreviewed by Comm'n Notice (Dec. 10, 2024).
As of the issuance of the final initial determination (``FID''),
the remaining asserted claims were: claims 1, 5, and 10 of the '756
patent; claims 1, 5, 10, 11, 17, 18, and 22 of the '527 patent; claims
1, 13, 15, and 20 of the '757 patent; and claims 1, 6-8, and 10 of the
'580 patent.
On March 6, 2025, the ALJ issued the FID finding no violation of
section 337. The FID finds that: the accused STIIIZY-LIIIL, the
STIIIZY-1G(C), and the STIIIZY-ORIG-1 products infringe at least one
claim of each Asserted Patent; the accused STIIIZY-AIO, the FLARE(C),
and the FLARE(V) products each infringe at least one asserted claim of
the '527 and '580 patents; the accused ROVE(C) and ROVE(V) products
each infringe at least one asserted claim of the '527 patent; the
accused STIIIZY Redesigned Products and FLARE-REDESIGNS infringe at
least one claim of the '580 patent; the ROVE(C) and ROVE(V) products do
not infringe the asserted claims of the '580 patent; and the accused
ROVE-REDESIGNS do not infringe any asserted claim. The FID further
finds that Respondents induced infringement and contributorily
infringed all asserted claims, none of the asserted claims are invalid
under 35 U.S.C. 102, 103, and/or 112, ] 1, and Complainant has
satisfied the technical prong of the domestic industry requirement for
all Asserted Patents. The FID finds, however, that Complainant has not
satisfied the economic prong of the domestic industry requirement for
any of the Asserted Patents. Id.
The FID also includes the ALJ's recommended determination (``RD'')
on remedy, the public interest, and bonding should the Commission find
a violation of section 337. Specifically, the RD recommends that the
Commission issue a limited exclusion order barring entry of STIIIZY's
and ALD's products that infringe the asserted claims of the Asserted
Patents. The RD also recommends issuing a cease and desist order
directed to STIIIZY, but not to ALD, because ALD does not maintain
significant commercial operations in the United States. The RD further
recommends that the Commission set a bond of 100 percent for any
importations of infringing products during the period of Presidential
review.
On March 18, 2025, Complainant filed a petition seeking review of
the following findings: (1) that certain accused products do not
infringe the asserted claims of the'580 patent; (2) that certain
redesigned products do not infringe the asserted claims of the '756,
'527, or '757 patent; and (3) that Complainant has not satisfied the
economic prong of the domestic industry requirement. On the same day,
Respondents filed a petition seeking review of the following findings:
(1) that certain redesigned products infringe the asserted claims of
the '580 patent under the doctrine of equivalents; (2) that claims 1,
6, or 8 of the '580 patent are not invalid as anticipated; and (3) that
Respondents failed to meet their burden to show that a skilled artisan
would have been motivated to combine certain prior art references.
Respondents also asked the Commission to determine: (1) whether
Complainant's investments made while the Complainant was a licensee
should be counted under subsections (A) or (B) of the economic prong of
the domestic industry requirement; (2) whether Complainant fails to
satisfy the economic prong of the domestic industry requirement because
Complainant's domestic industry expenditures are based on activities
that are illegal under the Controlled Substances Act; and (3) whether
Complainant demonstrated that it had a domestic industry on the date
the complaint was filed. On March 26, 2025, Complainant and Respondents
filed their respective petition responses.
On March 31, 2025, Professor William J. McNichol, Jr., an adjunct
professor at Rutgers Law School, submitted a response to the
Commission's Federal Register notice seeking public interest
submissions. See 90 FR 11851-52 (Mar. 12, 2025). On April 7, 2025, the
Complainant and ALD filed their respective submissions on the public
interest pursuant to Commission Rule 210.50(a)(4). 19 CFR 210.52(a)(4).
On May 16, 2025, the Commission issued a notice indicating that it
was reviewing the FID's findings that: (1) certain accused products do
not infringe the '580 patent; (2) certain redesigned products infringe
the '580 patent; and (3) Complainant has not satisfied its burden as to
the economic prong of the domestic industry requirement. See Comm'n
Not. at 3 (May 16, 2025). On review, the Commission determined that
``the FID errs by stating as a bright-line rule that `pre-issuance
investments [are not] cognizable under subparagraphs (A) and (B) of
section 337(a)(3).' '' Id. The Commission remanded the investigation
and directed the ALJ to ``consider whether Complainant's alleged
domestic industry investments were made with respect to the articles
protected by the patent (i.e., the products that the FID finds satisfy
the technical prong of the domestic industry requirement), not limited
by whether those investments were made post-patent issuance.'' Remand
Order at 4 (May 16, 2025). The other issues remain under review.
On June 9, 2025, Complainant and Respondents submitted their
respective remand briefs. The ALJ did not provide for the parties to
file reply briefs.
On July 18, 2025, the ALJ issued the RID finding that Complainant
has satisfied the economic prong of the domestic industry requirement
under section 337(a)(3)(A) and (B).
On July 30, 2025, Respondents submitted a petition for review of
the RID. Respondents request review of the RID's finding that
Complainant was an exclusive licensee to the Asserted Patents before
June 28, 2022, and that investments made before that date should count
towards Complainant's domestic industry. On August 6, 2025, Complainant
submitted a response to Respondents' petition for review.
Having examined the record of this investigation, including the RID
and the parties' submissions, the Commission has determined to review
the RID. First, the Commission has determined to supplement the
following sentence on page 7 of the RID: ``Nor is there a dispute that
all investments toward a domestic industry were incurred while
[Complainant] was an exclusive licensee to the Asserted Patents.'' The
Commission notes that Respondents dispute whether Complainant was an
exclusive licensee to the Asserted Patents before the Asserted Patents
issued. However, Respondents raised
[[Page 45412]]
this argument for the first time in their remand submission, and
accordingly, this argument is waived. See, e.g., Certain Fitness
Devices, Streaming Components Thereof, and Systems Containing Same,
Inv. No. 337-TA-1265, Comm'n Op. at 19-20 (Mar. 23, 2023) (finding
arguments not made in the pre-hearing brief to be waived). Furthermore,
the Commission has determined to modify the following sentence on page
14 of the RID: ``The 1.0-gram pod only practices the '757 and '580
patents, so less than 100% of all DI investments are attributable to a
domestic industry for these patents'' to read: ``The 1.0-gram pod is
not alleged to practice the '757 and '580 patents, so less than 100% of
all DI investments are attributable to a domestic industry for these
patents.''
The Commission otherwise affirms the RID's finding that Complainant
has satisfied the economic prong of the domestic industry requirement
under section 337(a)(3)(A) and (B), including its subsidiary finding
that Complainant was an exclusive licensee when it made its domestic
industry investments. The Commission finds that the RID reflects a
holistic approach to the domestic industry analysis consistent with the
Federal Circuit's recent holding in Wuhan Healthgen Biotechnology Corp.
v. Int'l Trade Comm'n, 127 F.4th 1334, 1339 (Fed. Cir. 2025); see also
Lashify, Inc. v. Int'l Trade Comm'n, 130 F.4th 948, 963 (Fed. Cir.
2025).
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: 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 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. All initial written
submissions, from the parties and/or third parties/interested
government agencies, and proposed remedial orders from the parties must
be filed no later than close of business on October 1, 2025. All reply
submissions must be filed no later than the close of business on
October 8, 2025. Opening submissions from the parties are limited to 25
pages. Reply submissions from the parties are limited to 15 pages. All
submission from third parties and/or interested government agencies are
limited to 10 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 pursuant to 19
CFR 210.4(f). Submissions should refer to the investigation number
(Inv. No. 337-TA-1392) 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 September
17, 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
[[Page 45413]]
Practice and Procedure (19 CFR part 210).
By order of the Commission.
Issued: September 17, 2025.
Sharon Bellamy,
Supervisory Hearings and Information Officer.
[FR Doc. 2025-18254 Filed 9-19-25; 8:45 am]
BILLING CODE 7020-02-P
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</html>Indexed from Federal Register on September 22, 2025.
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