[Federal Register Volume 77, Number 173 (Thursday, September 6, 2012)]
[Notices]
[Pages 54924-54926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21908]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-780]
Certain Protective Cases and Components Thereof; Commission
Determination To Review a Final Initial Determination Finding a
Violation of the Tariff Act of 1930; Schedule for Filing 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 final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on June 29, 2012, finding a violation of section 337 of the
Tariff Act of 1930, 19 U.S.C. 1337, in this investigation.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-3042. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its Internet server at http://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at http://edis.usitc.gov.
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 June 30, 2011, based on a complaint filed by Otter Products, LLC of
Fort Collins, Colorado (``Otter''). 76 FR 38417 (June 30, 2011). The
complaint alleged violations of section 337 of the Tariff Act of 1930
(19 U.S.C. 1337) in the importation into the United States, the sale
for importation, and the sale within the United States after
importation of certain protective cases and components thereof by
reason of infringement of some or all of the claims of United States
Patent Nos. D600,908; D617,784; D615,536; D617,785; D634,741; D636,386;
and claims 1, 5-7, 13, 15, 17, 19-21, 23, 25, 27, 28, 30-32, 37, 38,
42, and 44 of United States Patent No. 7,933,122 (``the '122 patent'');
and United States Trademark Registration Nos. 3,788,534; 3,788,535;
3,623,789; and 3,795,187. Id. The notice of investigation named the
following respondents: A.G. Findings and Mfg. Co., Inc. of Sunrise,
Florida (``A.G. Findings''); AFC Trident Inc. of Chino, California
(``AFC Trident''); Alibaba.com Hong Kong Ltd. of Hangzhou, China
(``Alibaba.com''); Anbess Electronics Co. Ltd. of Schenzhen, China
(``Anbess''); Cellairis Franchise, Inc. of Alpharetta, Georgia
(``Cellairis''); Cellet Products of Sante Fe Springs, California
(``Cellet''); DHgate.com of Beijing, China (``Dhgate.com''); Griffin
Technology, Inc. of Nashville, Tennessee (``Griffin''); Guangzhou
Evotech Industry Co., Ltd. of Guangdong, China (``Guangzhou Evotech'');
Hard Candy Cases LLC of Sacramento, California (``Hard Candy''); Hoffco
Brands, Inc. of Wheat Ridge, Colorado (``Hoffco''); Hong Kong Better
Technology Group Ltd. of Shenzhen, China (``Better Technology Group'');
Hong Kong HJJ Co. Ltd. of Shenzhen, China (``HJJ''); Hypercel
Corporation of Valencia, California (``Hypercel''); InMotion
Entertainment of Jacksonville, Florida (``InMotion''); MegaWatts
Computers, LLC of Tulsa, Oklahoma (``MegaWatts''); National Cellular of
Brooklyn, New York (``National Cellular''); OEMBargain.com of Wantagh,
New York (``OEMBargain.com''; One Step Up Ltd. of New York, New York
(``One Step Up''); Papaya Holdings Ltd. of Central, Hong Kong
(``Papaya''); Quanyun Electronics Co., Ltd. of Shenzhen, China
(``Quanyun''); ShenZhen Star & Way Trade Co., Ltd. of Guangzhou City,
China (``Star & Way''); Sinatech Industries Co., Ltd. of Guangzhou
City, China (``Sinatech''); SmileCase of Windsor Mill, Maryland
(``SmileCase''); Suntel Global Investment Ltd. of Guangzhou, China
(``Suntel''); TheCaseInPoint.com of Titusville, Florida
(``TheCaseInPoint.com''); TheCaseSpace of Fort Collins, Colorado
(``TheCaseSpace''); Topter Technology Co., Ltd. of Guangdong, China
(``Topter''); and Trait Technology (Shenzhen) Co., Ltd. of Shenzhen,
China (``Trait Technology''). Id. With respect to accused products by
Respondent Griffin, Otter asserted only the '122 patent.
On August 3, 2011, the ALJ issued an ID granting Otter leave to
amend the complaint and notice of investigation to add Global Cellular,
Inc. of Alpharetta, Georgia (``Global Cellular'') as a
[[Page 54925]]
respondent. See Order No. 3 (August 3, 2011). The Commission determined
not to review the order. See Notice of Commission Determination not to
Review an Initial Determination Granting Complainant's Motion to Amend
the Complaint and Notice of Investigation to Add a Respondent (August
18, 2011).
The following respondents were terminated from the investigation
based on settlement agreements, consent orders, or withdrawal of
allegations from the complaint: One Step Up, InMotion, Hard Candy,
DHGate.com, Alibaba.com, A.G. Findings, Cellairis, Global Cellular, AFC
Trident, Better Technology Group, and OEMBargain.com. The following
respondents were found in default: Anbess, Guangzhou Evotech, Hoffco,
HJJ, Sinatech, Suntel, Trait Technology, Papaya, Quanyun, Topter,
Cellet, TheCaseSpace, MegaWatts, Hypercel, Star & Way, SmileCase,
TheCaseInpoint.com, and National Cellular (collectively ``Defaulting
Respondents''). Griffin is the only remaining respondent not found in
default, and the only respondent that appeared before the Commission.
On June 29, 2012, the ALJ issued his final ID, finding a violation
of section 337 by Griffin and the Defaulting Respondents. Specifically,
the ALJ found that the Commission has subject matter jurisdiction: in
rem jurisdiction over the accused products and in personam jurisdiction
over the respondents. ID at 45-46. The ALJ also found that the
importation requirement of section 337 (19 U.S.C. 1337(a)(1)(B)) has
been satisfied. Id. at 38-45. Regarding infringement, the ALJ found
that the Defaulting Respondents' accused products infringe the asserted
claims of the asserted patents and the asserted trademarks. Id. at 62-
88. The ALJ further found that Griffin's accused products, the Griffin
survivor for iPad 2 and Griffin Explorer for iPhone 4, literally
infringe the asserted claims of the '122 patent but that the Griffin
Survivor for iPhone 4 and Griffin Survivor for iPod Touch do not
literally infringe the asserted claims of the '122 patent. Id. at 64-
78. The ALJ concluded that an industry exists within the United States
for the asserted patents and trademarks as required by 19 U.S.C.
1337(a)(2). Id. at 89-108.
The ID includes the ALJ's recommended determination on remedy and
bonding. The ALJ recommended that in the event the Commission finds a
violation of section 337, the Commission should issue a general
exclusion order directed to infringing articles. Id. at 118. The ALJ
found that there has been a widespread pattern of unauthorized use of
the asserted patents and that certain business conditions exist that
warrant a general exclusion order. Id. at 116. The ALJ also recommended
issuance of cease and desist orders directed to the defaulting
respondents, recommending that the cease and desist order should
encompass the Defaulting Respondents' Internet activities as well. Id.
at 120. Regarding Griffin, the ALJ found that the record evidence
establishes that it has commercially significant amounts of infringing
protective cases in inventory in the United States and recommended
issuing a cease and desist order directed to those infringing products.
Id. With respect to the amount of bond that should be posted during the
period of Presidential review, the ALJ recommended that if the
Commission finds a violation of section 337, it should set a bond of
331.80 percent of entered value for tablet cases and 195.12 percent for
non-tablet cases for infringing products of the Defaulting Respondents
imported. For Griffin's infringing products, the ALJ recommended
setting a bond of 12.45 percent for tablet cases and no bond for non-
tablet cases imported during the period of Presidential review.
On July 16, 2012, Otter filed a petition for review of the ID. That
same day, the Commission investigative attorney filed a petition for
review. On July 17, 2012, Griffin filed a petition for review (the
Commission granted Griffin's motion for leave to file its petition one
day late). On July 24, 2012, the parties filed responses to the
petitions for review.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in part.
Specifically, the Commission has determined to review the ALJ's finding
that the accused Griffin Survivor for iPod Touch does not literally
infringe the asserted claims of the '122 patent. The Commission has
determined not to review any other issues in the ID.
The parties are requested to brief their positions on the issue
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in responses to the following questions:
1. Does the '122 patent teach that the shape identified as ``switch
opening'' and the shapes identified as ``grooves'' are mutually
exclusive?
2. Is the feature identified in the '122 patent as a ``switch
opening'' identical to the feature in the Griffin Survivor for iPod
touch Mr. Anders identified as a ``groove''? See CX-1 at page 52
(reproduced in ID at 69).
3. Does the ``groove'' limitation, as construed by the ALJ, read on
the tab/groove features identified by Mr. Anders and located at the top
portion of the Survivor for the iPod Touch?
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent(s) 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 In the Matter of Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843
(December 1994) (Commission Opinion).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy on the public interest. The factors
the Commission will consider are 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
or disapprove the Commission's action. 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. 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
[[Page 54926]]
written submissions on the issues identified in this notice. Parties to
the investigation, interested government agencies, OUII, 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. Complainant is also requested to submit proposed remedial
orders for the Commission's consideration. Complainant is also
requested to state the dates that the patents expire and the HTSUS
numbers under which the accused products are imported. The written
submissions and proposed remedial orders must be filed no later than
close of business on September 14, 2012. Initial submissions are
limited to 100 pages, not including any attachments or exhibits related
to discussion of the remedy, bonding or public interest. Reply
submissions must be filed no later than the close of business on
September 21, 2012. Reply submissions are limited to 50 pages, not
including any attachments or exhibits related to discussion of the
remedy, bonding or public interest. 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 and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to section 210.4(f) of the Commission's Rules of Practice and
Procedure (19 CFR 210.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-754'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_ filing.pdf). 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. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted non-confidential version of the document must also be filed
simultaneously with any confidential filing. All non-confidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
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 sections 210.42-46 and 210.50 of the Commission's Rules of Practice
and Procedure (19 CFR 210.42-46 and 210.50).
By order of the Commission.
Issued: August 30, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-21908 Filed 9-5-12; 8:45 am]
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