[Federal Register Volume 81, Number 106 (Thursday, June 2, 2016)]
[Notices]
[Pages 35377-35379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12923]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-959]
Certain Electric Skin Care Devices, Brushes and Chargers
Therefor, and Kits Containing the Same; Commission Determination To
Review in Part an Initial Determination Granting Complainant's Motion
for Summary Determination of Violation of Section 337; 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. 42) of the presiding administrative law judge
(``ALJ'') granting complainant's motion for summary determination of
violation of section 337.
FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-3115. 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.
[[Page 35378]]
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337''), on June 25, 2015, based on a complaint filed by
Pacific Bioscience Laboratories, Inc. of Redmond, Washington (``PBL'').
80 FR 36576-77 (Jun. 25, 2015). The amended complaint, as supplemented,
alleges a violation of section 337 based upon the importation into the
United States, the sale for importation, or the sale within the United
States after importation of certain electric skin care devices, brushes
and chargers therefor, and kits containing the same by reason of
infringement of certain claims of U.S. Patent Nos. 7,320,691 and
7,386,906, and U.S. Design Patent No. D523,809. The complaint further
alleges violations of section 337 by reason of trade dress
infringement, the threat or effect of which is to destroy or
substantially injure an industry in the United States. Id. The
complaint named numerous respondents. The Commission's Office of Unfair
Import Investigations was named as a party.
During the course of the investigation, eight of the respondents
were terminated by consent order: Nutra-Luxe M.D., LLC of Fort Myers,
Florida (Order No. 10) (consent order issued Jan. 5, 2016);
SkincarebyAlana of Dana Point, California (Order No. 11) (consent order
issued Oct. 6, 2015); Unicos USA, Inc. of LaHabra, California (Order
No. 15) (consent order issued Oct. 20, 2015); H2PRO Beautylife, Inc. of
Placentia, California (Order No. 19) (consent order issued Oct. 22,
2015); Jewlzie of New York, New York (Order No. 20) (consent order
issued Oct. 22, 2015); Home Skinovations Inc. of Richmond Hill,
Ontario, Canada, and Home Skinovations Ltd. of Yokneam, Israel (Order
No. 30) (consent order issued Dec. 23, 2015); and Accord Media, LLC of
New York, New York (Order No. 31) (consent order issued Dec. 23, 2015).
Respondent RN Ventures Ltd. of London, United Kingdom, was terminated
based on a settlement agreement (Order No. 36) (not reviewed Feb. 4,
2016). Respondents Michael Todd LP and MTTO LLC, both of Port St.
Lucie, Florida, were also terminated based on a settlement agreement
(Order No. 37) (not reviewed Mar. 3, 2016).
The remaining ten respondents were found in default: Coreana
Cosmetics Co., Ltd. of Chungcheongnam-do, Republic of Korea; Flageoli
Classic Limited of Las Vegas, Nevada; Serious Skin Care, Inc. of Carson
City, Nevada; Shanghai Anzikang Electric Co., Ltd. of Shanghai, China;
and Wenzhou Ai Er Electrical Technology Co., Ltd. of ZheJiang, China
(Order No. 13) (not reviewed, as modified by Order No. 15, Oct. 20,
2015); ANEX Corporation of Seoul, Republic of Korea; Korean Beauty Co.,
Ltd. of Seoul, Republic of Korea; and Our Family Jewels, Inc. of
Parker, Colorado (Order No. 18) (not reviewed Oct. 22, 2015); Beauty
Tech, Inc. of Coral Gables, Florida (Order No. 24) (not reviewed Nov.
13, 2015); and Xnovi Electronic Co., Ltd. of Shenzhen, China (Order No.
32) (not reviewed Dec. 23, 2015) (collectively, ``the defaulting
Respondents'').
On February 18, 2016, complainant PBL filed a motion for summary
determination of violation of Section 337 by the defaulting
Respondents. The Commission investigative attorney (``IA'') filed a
response in support of the motion. No other responses were filed.
On April 11, 2016, the ALJ issued an ID (Order No. 42) granting
complainant's motion and making recommendations regarding remedy and
bonding. The IA filed a timely petition for review-in-part of the ID.
No other party petitioned for review of the ID. Complainant PBL filed a
response in support of the IA's petition. No other responses were
filed.
The Commission has determined to review the ID in part.
Specifically, the Commission has determined to review the ID's findings
on the economic prong of the domestic industry requirement as to the
patent-based allegations, all issues related to violation of the
asserted trade dress, and to correct certain minor typographical
errors. The Commission does not request any submissions on the issues
under review.
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 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 are likely to do so. For
background, see Certain Devices for Connecting Computers via Telephone
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (Dec. 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. 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 further requested to provide the expiration dates of
each of the asserted patents, and state the HTSUS subheadings under
which the accused articles are imported. Complainant is also requested
to supply the names of known importers of the infringing articles. The
written submissions and proposed remedial orders must be filed no later
than the close of business on June 9, 2016. Reply submissions must be
filed no later than the close of business on June 16, 2016. Such
submissions should address the ALJ's recommended determinations on
remedy and bonding which were made in Order No. 42. 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
[[Page 35379]]
the investigation number (``Inv. No. 337-TA-959'') 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 part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: May 26, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-12923 Filed 6-1-16; 8:45 am]
BILLING CODE 7020-02-P