[Federal Register Volume 80, Number 28 (Wednesday, February 11, 2015)]
[Notices]
[Pages 7631-7633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02782]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-908]
Certain Soft-Edged Trampolines and Components Thereof Notice of
Commission Determination To Review the Final Initial Determination in
Part; Schedule for Filing Written Submissions on the Issues Under
Review and on Remedy, Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
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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 issued by the presiding administrative law judge
(``ALJ'') in the above-captioned investigation on December 5, 2014. The
Commission requests certain briefing from the parties on the issues
under review, as indicated in this notice. The Commission also requests
briefing from the parties and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Lucy Grace D. Noyola, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202-205-3438. 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 (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 January 30, 2014, based on a complaint filed by of Springfree
Trampoline, Inc. of Markham, Canada, Springfree Trampoline USA Inc. of
Markham, Canada, and Spring Free Limited Partnership of Markham, Canada
(collectively, ``Springfree''). 79 FR 4956, 4956 (Jan. 30, 2014). The
complaint alleges violations of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, in the importation, sale for importation,
or sale within the United States after importation of certain soft-
edged trampolines and components thereof by reason of infringement of
one or more of claims 1 and 13 of U.S. Patent No. 6,319,174 (the ``
'174 patent''). Id. The notice of investigation names Vuly Trampolines
Pty. Ltd. of Brisbane, Australia (``Vuly'') as the sole respondent. Id.
at 4957. The Office of Unfair Import Investigations did not participate
in the investigation. Id.
On December 5, 2014, the ALJ issued a final ID finding no violation
of section 337. The ALJ found that Vuly's accused products infringe
claims 1 and 13 of the '174 patent. The ALJ found that Springfree's
alleged domestic industry products practice claim 13, but found that
Springfree failed to satisfy the economic prong of the domestic
industry requirement. The ALJ further found that claim 1 was not shown
to be invalid, but found that claim 13 is invalid as anticipated by the
prior art. On December 18, 2014, the ALJ issued a recommended
determination (``RD'') on remedy and bonding. The ALJ recommended that,
if the Commission finds a section 337 violation, a limited exclusion
order should issue, with an exception for replacement, repair, and
warranty parts. The ALJ recommended that the bond rate be set at zero
percent.
On December 22, 2014, Springfree filed a petition for review of the
ALJ's construction of the claim term ``first retaining means'' in claim
1 and the ALJ's findings with respect to domestic industry and
anticipation of claim 13. The same day, Vuly filed a contingent
petition for review of nearly all the remaining determinations by the
ALJ in the event the Commission determines to review the ID. On January
2, 2015, the parties filed responses to the petitions. The Commission
did not receive any post-RD public interest comments from the parties
or the public.
Having examined the record of this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review the ALJ's determination of no violation.
Specifically, the Commission has determined to review (1) the ALJ's
construction of ``flexible mat,'' ``first retaining means,'' and
``flexible elongated rod''; (2) the ALJ's findings of infringement of
claim 1 and 13; (3) the ALJ's findings regarding the technical prong of
the domestic industry requirement with respect to claims 1 and 13; (4)
the ALJ's findings regarding validity with respect to claims 1 and 13;
and (5) the ALJ's finding regarding the economic prong of the domestic
industry requirement.
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the existing
evidentiary record. In connection with its review, the Commission
requests responses to the following questions only.
1. What is the plain and ordinary meaning of ``flexible mat''?
Please discuss whether this limitation, based on its plain and ordinary
meaning, is met by the accused products, the alleged domestic industry
products, and the prior art.
2. Please identify the structures disclosed in the '174 patent
corresponding to the claimed function of the ``first retaining means''
limitation. Discuss the relevance, if any, of Micro Chemical, Inc. v.
Great Plains Chemical Co., 194 F.3d 1250 (Fed. Cir. 1999) and Ishida
Co. v. Taylor, 221 F.3d 1310 (Fed. Cir. 2000). Please discuss how your
response affects the analyses with respect to infringement, the
technical prong of the domestic industry requirement, and validity.
3. What evidence in the record shows that Springfree's alleged
domestic industry investment or employment activities are significant
in the context of the industry in question, Springfree's relative size,
the article of commerce, and the realities of the marketplace?
4. With respect to Springfree's alleged domestic industry products,
how do Springfree's domestic industry investments in plant and
equipment and/or employment of labor and capital compare to its foreign
investments and/or employment? What share of the overall cost of
manufacturing and installation of a Springfree trampoline is accounted
for by installation service costs in the United States? Does this
information support a finding that Springfree's domestic activities are
significant?
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 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 upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public
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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 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 all of 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. Complainant Springfree is also requested to
submit proposed remedial orders for the Commission's consideration.
Springfree is also requested to state the date that the asserted patent
expires and the HTSUS numbers under which the accused products are
imported, and provide identification information for all known
importers of the subject articles. Initial written submissions and
proposed remedial orders must be filed no later than close of business
on Thursday, February 19, 2015. Initial written submissions by the
parties shall be no more than 40 pages, excluding any exhibits. Reply
submissions must be filed no later than the close of business on
Monday, March 2, 2015. Reply submissions by the parties shall be no
more than 20 pages, excluding any exhibits. 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-908'') 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 the any confidential filing. All nonconfidential
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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: February 5, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-02782 Filed 2-10-15; 8:45 am]
BILLING CODE 7020-02-P