Certain Gas Spring Nailer Products and Components Thereof;

CourtInternational Trade Commission
Citation84 FR 69391
Published date18 December 2019
Record Number2019-27200
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
                

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