Certain Self-Anchoring Beverage Containers; Commission Final Determination of Violation of Section 337; Issuance of a General Exclusion Order; Termination of Investigation
| Published date | 21 December 2018 |
| Record Number | 2018-27712 |
| Court | International Trade Commission |
Federal Register, Volume 83 Issue 245 (Friday, December 21, 2018)
[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Notices]
[Pages 65744-65746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27712]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1092]
Certain Self-Anchoring Beverage Containers; Commission Final
Determination of Violation of Section 337; Issuance of a General
Exclusion Order; Termination of Investigation
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 that there is a violation of section 337 of
the Tariff Act of 1930, as amended, in the above-captioned
investigation. The Commission has issued a general exclusion order
(``GEO'') barring entry of certain self-anchoring beverage containers
that infringe the patent asserted in this investigation. The Commission
has terminated this investigation.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
[[Page 65745]]
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. 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 January 8, 2018, based on a complaint, as amended, filed by
Complainants Alfay Designs, Inc., of Rahway, New Jersey; Mighty Mug,
Inc., of Rahway, New Jersey; and Harry Zimmerman of Los Angeles,
California (collectively, ``Complainants''). 83 FR 835-36 (Jan. 8,
2018). The amended complaint alleged violations of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in
the importation into the United States, the sale for importation, and
the sale within the United States after importation of certain self-
anchoring beverage containers by reason of infringement of certain
claims of U.S. Patent Nos. 8,028,850 (``the `850 patent'') and
8,757,418 (``the '418 patent''), as well as U.S. Trademark Registration
No. 4,191,803 (``the '803 trademark''). Id. The amended complaint
further alleged that a domestic industry in the United States exists or
is in the process of being established.
The notice of investigation named eight respondents: Telebrands,
Corp. of Fairfield, New Jersey (``Telebrands''); HIRALIY of Guangzhou,
Chin; Chekue, Shenzen Chekue Trading Co. Ltd. of Shenzhen, China;
Tapcet, Guangzhou Tinghui Trade Co., Ltd. of Guangzhou, China; OTELAS,
MB of Klaipeda, Lithuania; and Artiart Limited of Taipei, Taiwan
(collectively, the ``Unserved Respondents''); and OUOH, Zhejiang OUOH
Houseware Co., Ltd., of Wenzhou, China (``OUOH''), and DevBattles of
Ternopil, Ukraine (``DevBattles''). Id. The notice of investigation
also named the Office of Unfair Import Investigations (``OUII'') as a
party to the investigation. Id. The Commission subsequently terminated
the investigation with respect to Telebrands and the Unserved
Respondents. See Order No. 8 (Feb. 16, 2018) (unreviewed Notice (Mar.
15, 2018)); Order No. 10 (Apr. 10, 2018) (unreviewed Notice (May 8,
2018)).
On May 3, 2018, the ALJ issued an initial determination (``ID'')
(Order No. 11) finding in default the last two remaining respondents,
OUOH and DevBattles (collectively, ``the defaulting respondents''). The
Commission determined not to review the ID. Comm'n Notice (June 1,
2018).
On May 25, 2018, Complainants filed a motion for summary
determination that the defaulting respondents have sold for importation
into the United States, imported into the United States, or sold after
importation certain self-anchoring beverage containers that infringe
certain claims of the `850 patent in violation of section 337. The
motion also requested a recommendation for entry of a GEO; but the
motion did not request cease and desist orders directed against either
defaulting respondent.
On June 6, 2018, the ALJ issued an ID (Order No. 12), granting
Complainants' motion to withdraw all allegations based on the '803
trademark and the '418 patent. The Commission determined not to review
the ID. Comm'n Notice (June 25, 2018).
On June 14, 2018, Complainants filed a supplement to their May 25,
2018, motion for summary determination. On the same day, OUII filed a
response in support of Complainants' motion.
On August 27, 2018, the ALJ issued an ID (Order No. 15) granting
Complainants' motion for summary determination. The ALJ found that the
importation requirement is satisfied as to each defaulting respondent,
that the accused products of each defaulting respondent infringe claim
1 of the `850 patent, and that Complainants satisfied the domestic
industry requirement. No petitions for review of the ID were filed. The
ALJ recommended issuance of a GEO and the imposition of a bond in the
amount of 100 percent of the entered value of subject products during
the period of Presidential review.
On October 5, 2018, the Commission determined to review in part the
ID granting summary determination of a section 337 violation. 83 FR
51703 (Oct. 12, 2018) (``Notice''). Specifically, the Commission
determined to review: (1) The ID's findings on infringement to correct
typographical errors, namely to modify a cross-reference ``[f]or the
foregoing reasons'' at page 11 of the ID to ``[f]or the following
reasons'' and to modify a citation to ``Mot. Ex. 3 at Attachments 1
(OUOH) and 6 (DevBattles)'' at page 11 of the ID to ``Mot. Ex. 3 at
Attachments 3 (OUOH) and 6 (DevBattles)'', and to strike the sentence
at page 11 of the ID that refers to claim charts attached to the
Amended Complaint (``Complainants also attached claim charts to the
Amended Complaint . . . of the patent. (Compl Exh. 38 at 13-15 (OUOH),
16-18 (DevBattles).)''); (2) the ID's findings on importation, and on
review, (a) affirm the ID's finding on importation as to defaulting
respondent OUOH on the modified ground that Complainants have
established by substantial, reliable, and probative evidence that the
importation requirement of section 337 is satisfied with respect to
defaulting respondent OUOH and (b) take no position on whether
Complainants have established by substantial, reliable, and probative
evidence the importation requirement as to defaulting respondent
DevBattles; and (3) the ID's findings on the economic prong of the
domestic industry, and on review, affirm the ID's finding of the
existence of a domestic industry under subsection 337(a)(3)(B), and to
take no position on whether a domestic industry exists under
subsections 337(a)(3)(A) or (C). Accordingly, the Commission found a
violation of section 337 as to defaulting respondent OUOH by
substantial, reliable, and probative evidence.
In its Notice, the Commission requested written submissions on the
issues of remedy, the public interest, and bonding. 83 FR 51703 (Oct.
12, 2018). Complainants and OUII timely filed initial written
submissions, and OUII also filed a reply to Complainants' submission.
No other submissions were filed in response to the Commission Notice.
Having reviewed the submissions filed in response to the Commission
Notice and the evidentiary record, the Commission has determined that
the appropriate form of relief in this investigation is a GEO
prohibiting the unlicensed importation of certain self-anchoring
beverage containers that infringe claim 1 of the asserted patent. The
Commission has further determined that the public interest factors
enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude
issuance of the GEO. Finally, the Commission has determined that a bond
in the amount of one hundred (100) percent of the entered value is
required to permit temporary importation of the articles in question
during the period of Presidential review (19 U.S.C. 1337(j)). The
investigation is terminated.
The Commission's order and opinion were delivered to the President
and to
[[Page 65746]]
the United States Trade Representative on the day of their issuance.
The Commission has also notified the Secretary of the Treasury and
Customs and Border Protection of the order.
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 18, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-27712 Filed 12-20-18; 8:45 am]
BILLING CODE 7020-02-P
