[Federal Register Volume 78, Number 16 (Thursday, January 24, 2013)]
[Notices]
[Pages 5207-5208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01374]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-804]
Certain Led Photographic Lighting Devices and Components Thereof;
Commission's Final Determination Finding a Violation of Section 337;
Issuance of a General Exclusion Order; Termination of Certain
Respondents Based on Consent Order; Issuance of Consent Order; and
Termination of the Investigation
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 found a violation of section 337 in this investigation
and has issued a general exclusion order prohibiting importation of
infringing LED photographic lighting devices and components thereof.
The Commission has also determined to terminate certain respondents on
the basis of a consent order stipulation, and has issued a consent
order.
FOR FURTHER INFORMATION CONTACT: Amanda S. Pitcher, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-2737. The public version of
the complaint can be accessed on the Commission's electronic docket
(EDIS) at http://edis.usitc.gov, and 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 (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 September 7, 2011, based on a complaint filed by Litepanels, Inc.
and Litepanels, Ltd. (collectively, ``Litepanels''). 76 FR 55416 (Sept.
7, 2011). The complaint alleged violations of section 337 of the Tariff
Act of 1930, as amended (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 LED photographic lighting devices
and components thereof that infringe certain claims of U.S. Patent Nos.
7,429,117 (later terminated from the investigation); 7,510,290 (later
terminated from the investigation); 7,972,022 (``the '022 patent'');
7,318,652 (``the '652 patent''); and 6,948,823 (``the '823 patent'').
Id. The Notice of Institution named respondents Flolight, LLC.
(``Flolight''), of Campbell, California; Prompter People, Inc.
(``Prompter'') of Campbell, California; Ikan Corporation (``Ikan''), of
Houston, Texas; Advanced Business Computer Services, LLC d/b/a Cool
Lights, USA (``CoolLights'') of Reno, Nevada; Elation Lighting, Inc. of
Los Angeles, California (``Elation''); Fuzhou F&V Photographic
Equipment Co., Ltd. (``F&V''), of Fujian, China; Fotodiox, Inc. of
Waukegan, Illinois, Yuyao Lishuai Photo-Facility Co., Ltd. of Zhejiang
Province, China, Yuyao Fotodiox Photo Equipment Co., Ltd. of Zhejiang
Province, China, and Yuyao Lily Collection Co., Ltd. of Yuyao, China
(collectively the ``Fotodiox respondents''); Shantou Nanguang
Photographic Equipment Co., Ltd. (``Nanguang''), of Guangdong Province,
China; Visio Light, Inc. (``Visio''), of Taipei, Taiwan; Tianjin Wuqing
Huanyu Film and TV Equipment Factory of Tianjin, China (``Tianjin'');
and Stellar Lighting Systems (``Stellar''), of Los Angeles, California.
Id. A Commission Investigative Attorney (``IA'') of the Office of
Unfair Import Investigations also participated in this investigation.
Visio, Nanguang, and F&V were terminated based on entry of consent
orders, Elation was terminated based upon a settlement agreement and
Tianjin was found in default. See Notice of Commission Determination
Not to Review an Initial Determination Terminating the Investigation as
to Respondent Visio Light, Inc. Based on Entry of Consent Order;
Issuance of Consent Order (December 2, 2011); See Notice of Commission
Determination to Review an Initial Determination Finding Respondent
Tianjin Wuquing Huanyu Film and TV Equipment Factory in Default
(January 17, 2012); Notice of Commission Determination Not to Review an
Initial Determination Terminating Respondent Elation Lighting, Inc.
from the Investigation (March 2, 2012); Commission
[[Page 5208]]
Determination Not to Review an Initial Determination Terminating the
Investigation as to Fuzhou F&V Photographic Equipment Co., Ltd. and
Shantou Nanguang Photographic Equipment Co., Ltd. Based on Entry of a
Consent Order (July 26, 2012).
On November 16, 2012, complainants Litepanels, and the Fotodiox
respondents and Ikan (collectively ``Consenting Respondents'') filed a
joint motion to terminate the investigation based on a consent order
stipulation and proposed consent order. At the time the parties filed
the joint motion, the investigation was under review by the Commission
and no longer before the ALJ. The IA filed a response that was
generally in support of the motion, but included an objection to
specific language in the consent order. In response to the IA's
objection, the parties submitted a revised proposed consent order on
November 30, 2012. The stipulation and consent order satisfied the IA's
objection. Litepanels and the Consenting Respondents assert that the
consent order and consent order stipulation do not impose any undue
burden on the public health and welfare, competitive conditions in the
United States economy, the product of like or directly competitive
articles in the United States or to United States consumers. We are not
aware of any adverse impact that termination of the investigation as to
the Consenting Respondents would have on the public interest. In
addition, termination of the investigation as to the Consenting
Respondents, as proposed in the motion, is generally in the public
interest. Accordingly, the Commission grants the joint motion to
terminate the Consenting Respondents and issues a consent order. The
remaining respondents are Flolight, Prompter, Cool Lights and Stellar.
On September 7, 2012, the Administrative Law Judge (``ALJ'') issued
his Final Initial Determination (``ID''), finding a violation of
section 337. The ALJ held that a violation occurred in the importation
into the United States, the sale for importation, or the sale within
the United States after importation of certain LED photographic
lighting devices and components thereof that infringe one or more of
claims 1, 57-58, and 60 of the '022 patent; claims 1, 2, 5, 16, 18, 19,
25 and 27 of the '652 patent; and claim 19 of the '823 patent. ID at
ii. The ALJ further held that no violation of section 337 occurred in
the importation into the United States, the sale for importation, or
the sale within the United States after importation of certain LED
photographic lighting devices and components thereof that infringe
claims 17 and 28 of the '823 patent because claims 17 and 28 are
invalid as anticipated. Id. at ii, 81.
On September 24, 2012, Litepanels, the IA and the Respondents
petitioned for review of the ID. On October 2, 2012, the parties filed
responses to the various petitions.
On November 13, 2012, the Commission determined to review the ID in
part and requested briefing on the issues under review, and on remedy,
the public interest and bonding. 77 FR 69499-500 (November 19, 2012).
The issues reviewed include: (1) The ALJ's determination that the
preambles of the asserted independent claims of the '652 patent, the
'823 patent and the '022 patent were not limitations and his
alternative construction of the preambles; (2) the ALJ's findings of
infringement; (3) the ALJ's findings of obviousness and anticipation;
(4) the ALJ's construction of the limitation of ``an integrated power
source'' of claim 17 of the '823 patent; and (5) the ALJ's findings on
the technical prong of domestic industry as related to the asserted
patents. Id. The parties filed written submissions and replies
regarding the issues under review, and remedy, the public interest, and
bonding. The Notice of Review also sought briefing from the parties and
the public regarding five questions relating to the public interest. On
December 18, 2012, Litepanels filed a Conditional Motion to Strike or
Reply to Respondents Reply Brief In Response to the Commission's
Notice. On December 27, 2012, Respondents filed a ``Response to
Complainants' Conditional Motion to Strike or Reply to Respondents'
Reply Brief in Support of the Commission's Notice.'' The Commission has
determined to deny Litepanels' motion.
Having examined the record of this investigation, including the
ALJ's final ID, and the parties' and public submissions, the Commission
has determined that there is a violation of section 337 with respect to
the '022 and '652 patents. The Commission has also determined to
reverse the ALJ's finding of a violation based on the '823 patent
because the only claim of the '823 patent that Litepanels alleges is
practiced by the domestic industry products (i.e., claim 17) is found
to be invalid. The Commission has determined to reverse the ALJ and
find that the preambles of the asserted patents are limitations and
should be construed based on their plain and ordinary meaning. The
Commission affirms the ALJ's findings on modified grounds to find: (1)
That the ``integrated power source'' limitation of claim 17 of the '823
patent is construed so that it is not restricted to the battery
housing, and may include, but is not limited to, the battery and/or
battery housing; (2) that the asserted independent claims of the '652
patent, '823 patent and the '022 patent are infringed; (3) that claims
17 and 28 of the '823 patent are invalid as anticipated; (4) that the
asserted claims of the '652 and '022 patents are not invalid; and (5)
that the technical prong of domestic industry is met for the '022 and
'652 patents and with respect to the '823 patent, that the elements of
claim 17 of the '823 patent are practiced by the domestic industry
products but finds that Litepanels has not proven that a valid patent
claim is practiced by the domestic industry products. As part of the
Commission's findings on anticipation and obviousness, the Commission
takes no positions on a few limitations as set forth in our
accompanying opinion. The Commission adopts the remaining findings of
the ALJ, including that the asserted dependent claims of the '652
patent, the '022 patent, and the '823 patent are infringed and that
claim 19 of the '823 patent is not invalid.
The Commission has further determined that the appropriate remedy
is a general exclusion order prohibiting from entry LED photographic
lighting devices and components thereof that infringe claims 1, 57, 58,
and 60 of the '022 patent and claims 1-2, 5, 16,18-19, 25, and 27 of
the '652 patent. The Commission has determined that the public interest
factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not
preclude issuance of the general exclusion order. Finally, the
Commission has determined that a bond in the amount of 43 percent of
the entered value is required to permit temporary importation during
the period of Presidential review (19 U.S.C. 1337(j)) of LED
photographic lighting devices and components thereof that are subject
to the order. The Commission's order and opinion were delivered to the
President and to the United States Trade Representative on the day of
their issuance.
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).
Issued: January 17, 2013.
By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-01374 Filed 1-23-13; 8:45 am]
BILLING CODE 7020-02-P