Notice2026-18302
Certain Glow Fish Tape Systems, Safety Helmet Systems, 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, Remedy, Bond, and the Public Interest
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Published
September 9, 2026
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("the Commission") has determined to review in part a final initial determination ("FID") issued by the presiding chief administrative law judge's ("CALJ") in the above-captioned investigation finding a violation of section 337 of the Tariff Act of 1930, and to solicit briefing on the issues under review as well as remedy, bonding, and the public interest.
Full Text
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<title>Federal Register, Volume 91 Issue 173 (Wednesday, September 9, 2026)</title>
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[Federal Register Volume 91, Number 173 (Wednesday, September 9, 2026)]
[Notices]
[Pages 57383-57386]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18302]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1442]
Certain Glow Fish Tape Systems, Safety Helmet Systems, 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, Remedy,
Bond, and the Public Interest
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``the Commission'') has determined to review in part a
final initial determination (``FID'') issued by the presiding chief
administrative law judge's (``CALJ'') in the above-captioned
investigation finding a violation of section 337 of the Tariff Act of
1930, and to solicit briefing on the issues under review as well as
remedy, bonding, and the public interest.
FOR FURTHER INFORMATION CONTACT: Carl Bretscher, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone 202-205-2382. 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#783d3c312b4b301d1408380d0b110c1b561f170e"><span class="__cf_email__" data-cfemail="febbbab7adcdb69b928ebe8b8d978a9dd0999188">[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 March 19, 2025, the Commission instituted
this investigation based on a complaint, as supplemented, filed by
Klein Tools, Inc., of Lincolnshire, Illinois (``Klein'') alleging
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 glow fish tape systems, safety helmet
systems, and components thereof by reason of the infringement of
asserted claims 1, 3-8, 10-11, and 13-17 of U.S. Patent Nos. 11,452,327
(``the '327 patent''); claims 6, 8-9, 11, and 14-17 of U.S. Patent No.
11,713,209 (``the '209 patent''); and claims 1-2, 4, 6-8,
[[Page 57384]]
10, and 14-17 of U.S. Patent No. 12,187,573 (``the '573 patent''). 90
FR 12790. The complaint further alleges that a domestic industry
exists. Id. The Commission's notice of investigation named as
respondent Milwaukee Electric Tool Corporation, of Brookfield,
Wisconsin (``Milwaukee''). Id. The Office of Unfair Import
Investigations is not participating in the investigation. Id.
On May 30, 2025, the Commission amended the notice of investigation
to include allegations of infringement of claims 1-4 of U.S. Patent No.
12,268,265 (``the '265 patent''). Order No. 6 (May 1, 2025), unreviewed
by Comm'n Notice (May 30, 2025). The '265 patent and related '327
patent are referred to collectively herein as the ``Helmet Patents.''
The '209 patent and related '573 patent are referred to collectively
herein as the ``Glow Fish Tape Patents.''
On December 12, 2025, the Commission partially terminated the
investigation with respect to claims 1, 3-7, 11, and 16 of the '327
patent; claims 11 and 14-17 of the '209 patent; and claims 1-2, 4, 10,
and 14-17 of the '573 patent. Order No. 14 (Nov. 20, 2025), unreviewed
by Comm'n Notice (Dec. 12, 2025). On January 28, 2026, the Commission
partially terminated the investigation with respect to claims 13-15 of
the '327 patent, claims 8 and 9 of the '209 patent, and claims 7 and 8
of the '573 patent.
On January 20, 2026, the Commission granted Klein's motion for
summary determination that it satisfied the domestic industry
requirement for the Glow Fish Tape Patents. Order No. 17 (Dec. 19,
2025), unreviewed by Comm'n Notice (Jan. 20, 2026).
The presiding CALJ held an evidentiary hearing from January 5-8,
2026. By the time of the hearing, the claims of the Helmet Patents
still at issue for infringement or domestic industry purposes were
claims 8, 10, and 17 of the '327 patent and claims 1-4 of the '265
patent. The claims of the Glow Fish Tape Patents still at issue for
either purpose were claims 1, 5, and 6 of the '209 patent and claims 1,
5, and 6 of the '573 patent.
On June 5, 2026, the CALJ issued the FID. With respect to the
Helmet Patents, the FID finds that: (i) Milwaukee infringed the '265
patent but not the '327 patent; (ii) the asserted claims of the Helmet
Patents are not invalid; and (iii) Klein satisfied both the technical
and economic prongs of the domestic industry requirement for both
Helmet Patents. FID at 216. With respect to the Glow Fish Tape Patents,
the FID finds that: (i) Milwaukee did not infringe either the '209
patent or '573 patent; (ii) the asserted claims of the Glow Fish Tape
Patent are not invalid; and (iii) Klein also satisfied the technical
prong of the domestic industry requirement with respect to claim 6 of
each Glow Fish Tape Patent (the economic prong having already been
decided by Order No. 14, supra). Id. The FID concludes that Milwaukee
violated section 337 with respect to the '265 patent (a Helmet Patent)
but not the 327 patent or either of the Glow Fish Tape Patents. Id.
The FID includes the CALJ's Recommendation on Remedy and Bond
(``RD''). The CALJ recommends that if a violation is found, the
Commission should issue a limited exclusion order (``LEO'') and cease
and desist order (``CDO'') against Milwaukee with respect to the
asserted claims of the '265 patent. The RD also recommends that the
Commission set a bond in the amount of 100 percent of the entered value
of covered hard hats and safety helmet products that may be imported
during the 60-day period of Presidential review.
On June 22, 2026, both Milwaukee and Klein filed petitions or
contingent petitions for review of certain adverse findings in the FID.
Milwaukee filed a petition for review of: (i) the FID's construction
and infringement findings for the 265 patent; (ii) its finding that the
asserted claims of the Helmet Patents are not invalid as obvious under
35 U.S.C. 103 or for lack of sufficient written description under 35
U.S.C. 112(a); (iii) its finding that the claims of the Glow Fish Tape
Patents are not invalid as obvious; and (iv) its finding that Klein
satisfied the technical and economic prongs of the domestic industry
requirement for the Helmet Patents. Klein, in turn, filed a contingent
petition for review of: (i) the FID's construction and non-infringement
findings for the '327 patent; (ii) its construction and non-
infringement findings for the Glow Fish Tape Patents; and (iii) its
finding that copying is not among the objective indicia of non-
obviousness of the Glow Fish Tape Patents. On June 30, 2026, the
parties filed their respective responses to the opposing party's
petition.
On July 10, 2026, Klein's counsel submitted a letter to the
Commission identifying certain allegedly false statements in
Milwaukee's opposition to Klein's petition. On the same date,
Milwaukee's counsel submitted a response, to which it attached a copy
of a letter to Klein's counsel dated July 8, 2026, explaining why
Milwaukee's representations are allegedly correct. Upon review of the
letters, the Commission has declined to consider them because they are
not permissible under the Commission's rules.
On July 15, 2026, the Commission issued a notice requesting
submissions on public interest issues raised by the recommended relief,
should the Commission find a violation. 91 FR 43402-03 (July 15, 2026).
The Commission has not received any third-party responses to its
request.
Upon review of the FID, the petitions for review and responses
thereto, and the evidence of record, the Commission has determined to
review the following findings in the FID. With respect to the Helmet
Patents, the Commission has determined to review the FID's finding
that: (i) the asserted claims of the '265 patent and '327 patent are
not obvious under 35 U.S.C. 103 and (ii) Klein satisfied the economic
prong of the domestic industry requirement. With respect to the Glow
Fish Tape Patents, the Commission has determined to review: (i) the
construction of the claim term ``wherein at least a portion of the case
is configured to allow the luminescent material to be energized by
light passing through the portion'' in the '573 patent and related
findings; (ii) the finding of non-infringement of the '209 and '573
patents, both literal and under the doctrine of equivalents; and (iii)
the finding that the asserted claims of the Glow Fish Tape Patents are
not invalid as obvious. The Commission has determined not to review the
remainder of the FID.
The parties are asked to provide additional briefing on the
following issues under review:
(1) Explain whether the evidence and argument presented by
Milwaukee show that a person skilled in the art at the time of the
invention of the Helmet Patents would have been motivated or have any
reason to combine the prior art Chinese Patent Publication CN 202026888
U to Yan with (i) U.S. Patent No. 9,993,043 to Daley; (ii) U.S. Patent
No. 4,304,009 to Nesbitt; and/or (iii) German Patent Application DE 20
2006 007 009 U1 to Kiessler to produce the claimed inventions of the
Helmet Patents with a reasonable likelihood of success.
(2) With respect to the Glow Fish Patents, explain whether the
passage of light through a solid transparent material versus passage of
light through an open slot or window affects the ``way'' the light
energizes the luminescent surface of the fish tape and its relevance,
if any, to analyzing infringement under the doctrine of equivalents.
(3) Regarding the proposed combination of the prior art European
Patent Application Publication EP 1391412 (``Hartranft'') with U.S.
Patent No. 6,293,519 (``Farretta''), explain
[[Page 57385]]
whether either reference teaches away from such a combination, whether
there is a motivation or reason to combine the references, and the
extent to which the alleged objective indicia of non-obviousness are
directed to the claimed inventions of the Glow Fish Tape Patents versus
other, unclaimed features.
(4) Under a holistic approach to the domestic industry analysis
consistent with the Federal Circuit's holding in Wuhan Healthgen
Biotechnology Corp. v. Int'l Trade Comm'n, 127 F.4th 1334, 1339 (Fed.
Cir. 2025), please explain whether Klein presented sufficient evidence
to the ALJ to show the asserted investments significant pursuant to
section 337(a)(3)(B) or substantial pursuant to section 337(a)(3)(C)
for the Helmet Patents. Under such a holistic approach, does the record
contain evidence to enable the Commission to compare the domestic
investments in engineering, research, and design or in manufacturing of
the DI products to foreign manufacturing and other foreign costs of the
DI products? See Certain Soft Projectile Launching Devices, Components
Thereof, Ammunition, and Products Containing Same, Inv. No. 337-TA-1325
(Jan. 5, 2026) (including Separate Views of Chair Karpel in Dissent);
Certain Movable Barrier Operator Systems and Components Thereof, Inv.
No. 337-TA-1118, Comm'n Op. at 26 (Jan. 12, 2021). For the Helmet
Patents, in comparing domestic labor or capital investments relating to
the DI products to foreign investments to demonstrate significance,
what foreign investments are relevant? Citing to the evidentiary
record, what evidence is on record regarding Klein's foreign
investments?
(5) The FID found a certain number of ``Texas-Made Hard Hats'' and
``Customized Hard Hats'' were manufactured from 2023 to 2024, and found
an associated amount of domestic manufacturing labor costs. FID at 208.
Please explain, using the evidence in the record, how Klein was able to
produce this amount of hats with the amount of domestic manufacturing
labor costs cited.
The parties are invited to brief only the discrete issues requested
above, with reference to the applicable law and limited to arguments
and evidence in the existing evidentiary record. The parties are not to
brief any 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
cease and desist order 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. See 19
U.S.C. 1337(d)(1). 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 to submit proposed remedial orders for
the Commission's consideration. Complainant is further requested to
state the dates the Asserted Patents will expire, the HTSUS subheadings
under which the accused products are imported, and 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 the close of
business on September 18, 2026. All reply submissions must be filed no
later than the close of business on September 25, 2026. Opening
submissions from the parties are limited to 45 pages. Reply submissions
from the parties are limited to 30 pages. All submissions 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-1442) 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/secretary/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/secretary/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
[[Page 57386]]
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
3, 2026.
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: September 3, 2026.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2026-18302 Filed 9-8-26; 8:45 am]
BILLING CODE 7020-02-P
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