Certain Gas Spring Nailer Products and Components Thereof;

 
CONTENT
Federal Register, Volume 84 Issue 243 (Wednesday, December 18, 2019)
[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Notices]
[Pages 69391-69392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27200]
[[Page 69391]]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1082]
Certain Gas Spring Nailer Products and Components Thereof;
Commission Determination To Review in Part a Remand Initial
Determination Finding No Violation of Section 337; Request for Written
Submissions on Remedy, Bonding, and the Public Interest
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``the Commission'') has determined to review in part a
remand initial determination (``RID'') of the presiding administrative
law judge (``ALJ'') finding no violation of section 337. The Commission
is also requesting written submissions on remedy, bonding, and the
public interest.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2310. 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 https://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://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 November 20, 2017, based on a complaint filed on behalf of Kyocera
Senco Brands Inc. (``Kyocera'') of Cincinnati, Ohio. 82 FR 55118-19
(Nov. 20, 2017). The complaint, as amended and supplemented, alleges
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based upon the importation into the United States, the
sale for importation, and the sale within the United States after
importation of certain gas spring nailer products and components
thereof by reason of infringement of certain claims of U.S. Patent Nos.
8,011,547 (``the '547 patent''); 8,267,296 (``the '296 patent'');
8,27,297 (``the '297 patent''); 8,387,718 (``the '718 patent'');
8,286,722 (``the '722 patent''); and 8,602,282 (``the '282 patent'').
The complaint further alleges the existence of a domestic industry. The
Commission's notice of investigation named as a respondent Hitachi Koki
U.S.A., Ltd. (``Hitachi'') of Braselton, Georgia. The Office of Unfair
Import Investigations is not participating in the investigation. The
'547 patent has been terminated from the investigation and the notice
of investigation was amended to add claim 30 of the '297 patent to the
investigation. Order No. 13 (June 4, 2018), unreviewed by Comm'n Notice
(June 22, 2018); Order No. 15 (June 19, 2018), unreviewed by Comm'n
Notice (July 9, 2018), 83 FR 32685-66 (July 15, 2018). Prior to the
evidentiary hearing, the parties stipulated that the '718 patent is the
only remaining patent at issue since no violation could be shown as to
the '296, '297, '722, and '282 patents based on an evidentiary ruling
limiting the scope of testimony of Kyocera's expert. See ID at 1-2.
    On June 7, 2019, the ALJ issued a final ID finding no violation of
section 337 as to the '718 patent based on non-infringement and the
failure of Kyocera to establish the existence of a domestic industry
that practices the '718 patent. Specifically, the ID finds that neither
Hitachi's accused products nor Kyocera's domestic products satisfy the
``system controller'' limitation of the asserted claims.
    On August 14, 2019, the Commission determined to review the ID and
remand in part. See Comm'n Notice (Aug. 14, 2019). Specifically, the
Commission determined to review the ID's finding that Kyocera did not
establish: (1) Either direct or induced infringement of the asserted
claims of the '718 patent; and (2) practice of the asserted claims by
Kyocera's DI products to satisfy the domestic industry requirement. The
Commission also determined to review the ID's finding that Kyocera
demonstrated sufficient activities and investments relating to the
articles protected by the '718 patent to satisfy the domestic industry
requirement. Id. Also, the Commission remanded the issues of whether
Kyocera has established, by a preponderance of the evidence, that: (1)
The remaining limitations (irrespective of the ``system controller''
limitation) of the asserted claims of the '718 patent are met by
Hitachi's accused products; (2) the remaining limitations of the
asserted claims are practiced by Kyocera's domestic industry products;
and (3) Hitachi induced infringement of the asserted claims. Id.
    On October 28, 2019, the ALJ issued the subject RID finding no
violation of section 337 as to the '718 patent based on non-
infringement and the failure of Kyocera to establish the existence of a
domestic industry that practices the '718 patent. Specifically, the RID
finds that: (1) Neither Hitachi's accused products nor Kyocera's
domestic industry (``DI'') products satisfy the ``displacement volume''
limitation (i.e., '' (A) a hollow cylinder comprising a cylindrical
wall with a movable piston therewith, said hollow cylinder containing a
displacement volume created by a stroke of said piston'') and the
``initiating a driving cycle'' limitation (i.e., ``initiating a driving
cycle by pressing said exit end against a workpiece and actuating said
trigger, thereby causing said fastener driving mechanism to force the
driver member to move toward said exit end and drive a fastener into
said workpiece'') of the asserted claims and (2) Kyocera fails to
establish that Hitachi possesses the requisite specific intent to
induce infringement of the claims.
    On November 12, 2019, Kyocera petitioned, and Hitachi contingently
petitioned, for review of the RID. On November 20, 2019, Kyocera and
Hitachi each filed a response in opposition to the other party's
petition for review.
    Having reviewed the record of the investigation, including the
parties' briefing, the Commission has determined to review the subject
RID in part. Specifically, the Commission has determined to review the
RID's finding that Kyocera did not establish: (1) Direct infringement
of the asserted claims with respect to the ``displacement volume'' and
``initiating a driving cycle'' limitations; (2) practice of the
asserted claims by its DI products with respect to these limitations;
and (3) induced infringement of the asserted claims. The Commission has
determined not to review the remainder of the RID.
[[Page 69392]]
    The Commission also requests that the parties brief the following
questions on review:
    1. With respect to the economic prong of the domestic industry
requirement, did the ID address the contextual analysis required by our
precedent to determine if Kyocera's investments are significant? See,
e.g., Certain Carburetors and Products Containing Such Carburetors,
Inv. No. 337-TA-1123, Comm'n Op. at 17-19 (Oct. 28, 2019). If not, does
the record evidence support a finding that Kyocera satisfies this
requirement?
    2. Did Hitachi present any argument(s) concerning contextual
analysis in its petition for review? If so, please identify the
argument(s) and the relevant petition pages, evidence, and authorities
cited on the issue.
    3. Does the RID's interpretation and application of the
``initiating a driving cycle'' limitation exclude the embodiments
depicted in Figures 1 and 16 of the '718 patent?
    Responses or replies to the briefing questions should not exceed 30
pages.
    In connection with the final disposition of this investigation, the
Commission may (1) issue an order that results 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 respective
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 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).
    When 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.
    When 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 section 337(j), 19 U.S.C.
1337(j) and the 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 written submissions on the issues under review that
specifically address the Commission's questions set forth in this
notice. The submissions should be concise and thoroughly referenced to
the record in this investigation. Parties to the investigation,
interested government agencies, and any other interested parties are
encouraged to file written submissions on the issues of remedy,
bonding, and the public interest. 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 date that the asserted patent expires, the HTSUS numbers
under which the accused products are imported, and to supply the names
of known importers of the products at issue in this investigation. The
responses to the questions on review, written submissions, and proposed
remedial orders must be filed no later than close of business on
January 3, 2020. Reply submissions must be filed no later than the
close of business on January 10, 2020. 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 eight
true paper copies to the Office of the Secretary 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-1082'') in a prominent place on the cover page and/or the
first page. (See Handbook on Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
regarding filing should contact the Secretary at (202) 205-2000.
    Any person desiring to submit a document to the Commission in
confidence must request confidential treatment unless the information
has already been granted such treatment during the proceedings. All
such requests should be directed to the Secretary of the Commission and
must include a full statement of the reasons why the Commission should
grant such treatment. See 19 CFR 210.6. Documents for which
confidential treatment by the Commission is sought will be treated
accordingly. A redacted non-confidential version of the document must
also be filed simultaneously with any confidential filing. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel,\1\ solely for
cybersecurity purposes. All non-confidential written submissions will
be available for public inspection at the Office of the Secretary and
on EDIS.
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    \1\ All contract personnel will sign appropriate nondisclosure
agreements.
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    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: December 12, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-27200 Filed 12-17-19; 8:45 am]
 BILLING CODE 7020-02-P