[Federal Register Volume 80, Number 58 (Thursday, March 26, 2015)]
[Notices]
[Pages 16023-16025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06898]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-923 Remand]
Certain Loom Kits for Creating Linked Articles: Commission
Determination To Review an Initial Determination in Part and, on
Review, To Affirm a Finding of Violation With Modifications; Request
for Written Submissions 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 an initial determination
(``ID'') (Order No. 13) issued by the presiding administrative law
judge (``ALJ'') in the above-captioned investigation. Particularly, the
Commission has determined to review the determination on domestic
industry in the ID. Upon review, the Commission affirms a finding of
domestic industry with modifications. The Commission's determination
results in a determination of a violation of section 337 of the Tariff
Act of 1930, as amended (19 U.S.C. 1337 or ``section 337'').
Accordingly, the Commission requests written submissions, under the
schedule set forth below, on remedy, public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Clark S. Cheney, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202-205-2661. 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 August 6, 2014, based on a complaint filed by Choon's Design, Inc.,
of Wixom, Michigan (``Choon's''). 79 FR 45844-45
[[Page 16024]]
(August 6, 2014). The complaint alleged violations of section 337 by
reason of the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain loom kits for creating linked articles that infringe U.S.
Patent No. 8,485,565 (``the '565 patent''). The notice of investigation
named thirteen respondents, all of which either have been found in
default or terminated from this investigation. See Notice of Commission
Determination Not to Review an Initial Determination Terminating the
Investigation as to Respondent Creative Kidstuff, LLC (September 26,
2014); Notice of Commission Determination Not to Review an Initial
Determination Finding Respondent Island in the Sun LLC in Default
(October 16, 2014); Notice of Commission Determination Not to Review
Two Initial Determinations Finding Certain Respondents in Default and
Terminating the Investigation with Respect to Another Respondent
(January 9, 2015); Notice of Commission Determination Not to Review an
Initial Determination Terminating the Investigation as to Respondent
Altatac, Inc. (January 13, 2015). The respondents in default are Island
in the Sun LLC; Quality Innovations Inc.; Yiwu Mengwang Craft & Art
Factory; Shenzhen Xuncent Technology Co., Ltd.; My Imports USA LLC;
Jayfinn LLC; Hongkong Haoguan Plastic Hardware Co., Ltd.; Blinkee.com,
LLC; Eyyup Arga; and Itcoolnomore (collectively, ``defaulting
respondents'').
On December 5, 2014, Choon's moved for a summary determination of a
violation of section 337 and for issuance of a general exclusion order.
On December 17, 2014, the Commission investigative attorney (``IA'')
submitted a response supporting the motion. No other responses to the
motion were received.
On February 3, 2015, the ALJ issued an ID granting Choon's motion
for summary determination of violation and recommending the issuance of
a general exclusion order. See Order No. 13. On February 13, 2015, the
IA submitted a petition for review of the ID in part. The IA argued
that the ALJ improperly accepted alleged domestic industry investments
in ``paying a patent attorney to prosecute U.S. and international
patent applications'' and ``visiting a Chinese factory for a week to
investigate manufacturing the Rainbow Loom[supreg] kits.'' See ID at
40. The IA also contended that certain foreign expenditures should have
been excluded and other domestic expenditures should have been included
in the total investment summarized by the ALJ on page 42 of the ID. The
IA asserts that, notwithstanding these points, the Commission should
affirm the ALJ's conclusion that Choon's has satisfied the domestic
industry requirement and that a violation of section 337 has been
proven.
On February 18, 2015, Choon's filed a response to the IA's
petition. Choon's took no position as to whether patent prosecution
costs or visiting Chinese manufacturers count as domestic industry
investments. Choon's agreed with the IA that certain domestic
expenditures should be included in the domestic investment total and
that the economic prong of the domestic industry requirement has been
met.
The Commission has determined to review only the domestic industry
economic prong determination in the ID. Upon review, the Commission
affirms a finding that Choon's has shown a substantial investment in
the exploitation of the '565 patent through engineering, and research
and development of articles protected by the '565 patent, but the
Commission modifies certain portions of the ID regarding the
expenditures comprising the domestic industry investments. The
Commission's modifications will be specified in a later Commission
opinion.
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 one or
more 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 (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 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: 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. Complainant and the IA are also requested to submit
proposed remedial orders for the Commission's consideration.
Complainant is also requested to state the date on which the '565
patent expires and the HTSUS subheadings under which the accused
products are imported.
Written submissions must be filed no later than close of business
on April 3, 2015. Reply submissions must be filed no later than the
close of business on April 10, 2015. Such submissions should address
the ALJ's recommended determinations on remedy and bonding which were
made in Order No. 13. 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 and submit eight
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-923'') in a prominent place on
the cover page and/or the first page. See Handbook for Electronic
Filing Procedures, http://vvww.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf. Persons with questions
regarding filing should contact the Secretary (202-205-
[[Page 16025]]
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 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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: March 20, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-06898 Filed 3-25-15; 8:45 am]
BILLING CODE 7020-02-P