81 FR 15742 - Certain Beverage Brewing Capsules, Components Thereof, and Products Containing the Same; Commission's Final Determination Finding No Violation of Section 337 by Solofill LLC or DongGuan Hai Rui Precision Mould Co., Ltd.; Issuance of a Limited Exclusion Order and Cease and Desist Orders to Defaulted Respondents; Termination of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 57 (March 24, 2016)

Notice is hereby given that the U.S. International Trade Commission has found no violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. Sec. 1337 (``section 337'') by Solofill LLC and DongGuan Hai Rui Precision Mould Co., Ltd., and has issued a limited exclusion order and cease desist orders to the defaulted respondents Eko Brands, LLC, Evermuch Technology Co., Ltd., and Ever Much Company, Ltd. The investigation is terminated.

[Federal Register Volume 81, Number 57 (Thursday, March 24, 2016)]
[Notices]
[Pages 15742-15743]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-06654]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-929]


Certain Beverage Brewing Capsules, Components Thereof, and 
Products Containing the Same; Commission's Final Determination Finding 
No Violation of Section 337 by Solofill LLC or DongGuan Hai Rui 
Precision Mould Co., Ltd.; Issuance of a Limited Exclusion Order and 
Cease and Desist Orders to Defaulted Respondents; Termination of the 
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 found no violation of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. Sec.  1337 (``section 337'') by Solofill 
LLC and DongGuan Hai Rui Precision Mould Co., Ltd., and has issued a 
limited exclusion order and cease desist orders to the defaulted 
respondents Eko Brands, LLC, Evermuch Technology Co., Ltd., and Ever 
Much Company, Ltd. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
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 (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 September 9, 2014, based on a complaint filed by Adrian Rivera of 
Whittier, California, and Adrian Rivera Maynez Enterprises, Inc., of 
Santa Fe Springs, California (together, ``ARM''). 79 FR 53445-46. The 
complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. Sec.  1337, in the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain beverage brewing capsules, components 
thereof, and products containing the same that infringe claims 5-8 and 
18-20 of U.S. Patent No. 8,720,320 (``the '320 patent''). Id. at 53445. 
The Commission's notice of investigation named as respondents Solofill 
LLC of Houston, Texas (``Solofill''); DongGuan Hai Rui Precision Mould 
Co., Ltd. of Dong Guan City, China (``DongGuan''); Eko Brands, LLC 
(``Eko Brands''), of Woodinville, Washington; Evermuch Technology Co., 
Ltd. (``Evermuch Technology''), of Hong Kong, China; Ever Much Company 
Ltd. (``Evermuch Company'') of Shenzhen, China; Melitta USA, Inc. 
(``Melitta''), of North Clearwater, Florida; LBP Mfg., Inc. of Cicero, 
Illinois and LBP Packaging (Shenzhen) Co. Ltd. of Shenzhen, China 
(together, ``LBP''); Spark Innovators Corp. (``Spark''), of Fairfield, 
New Jersey; B. Marlboros International Ltd. (HK) (``B. Marlboros'') of 
Hong Kong, China; and Amazon.com, Inc. (``Amazon'') of Seattle, 
Washington. The Office of Unfair Import Investigations was also named 
as a party to the investigation. Id.
    The Commission terminated the investigation with respect to 
Melitta, Spark, LBP, and B. Marlboros based on the entry of consent 
orders and terminated the investigation with respect to Amazon based on 
a settlement agreement. Notice (Dec. 18, 2014); Notice (Jan. 13, 2015); 
Notice (Mar. 27, 2015); Notice (Apr. 10, 2015). The Commission also 
found Eko Brands, Evermuch Technology, and Evermuch Company in default 
for failing to respond to the complaint and notice of investigation. 
Notice (May 18, 2015). Accordingly, Solofill and DongGuan (together, 
``Respondents'') are the only respondents actively participating in the 
investigation.
    On September 4, 2015, the ALJ issued his final initial 
determination (``ID'') finding no violation of section 337. The ID 
found that ARM had established every element for finding a violation of 
section 337 except for infringement. The ID found that Respondents were 
not liable for direct infringement because direct infringement required 
the combination of Respondents' products with a third-party single 
serve beverage brewer, and that Respondents were not liable for induced 
or contributory infringement because they did not have pre-suit 
knowledge of the '320 patent. The ID did find that Respondents' 
products directly infringed claims 5-7, 18, and 20 of the '320 patent 
(``the asserted claims'') when combined with a third-party single serve 
coffee brewer, that the asserted claims were not shown invalid by clear 
and convincing evidence, and that ARM satisfied both the technical and 
economic prongs of the domestic industry requirement. The ALJ also 
issued his recommendation on remedy and bonding along with his ID.
    On September 21, 2015, ARM petitioned for review of the ID's 
findings that Respondents were not liable for induced and contributory 
infringement because of a lack of pre-suit knowledge, and Respondents 
petitioned for review of several of the ID's findings. On September 29, 
2015, the parties opposed each other's petitions, and the Commission 
Investigative Attorney (``IA'') opposed both petitions.
    On November 9, 2015, the Commission determined to review the final 
ID in part. Specifically the Commission determined to review the 
following: (1) The ID's findings on the construction, infringement, and 
technical prong of the domestic industry requirement for the limitation 
``a needle-like structure, disposed below the base''; (2) the ID's 
findings on induced and contributory infringement; (3) the ID's 
findings that the asserted claims are not invalid for a lack of written 
description, as anticipated by Beaulieu and the APA, or as obvious; and 
(4) the ID's findings on the economic prong of the domestic industry 
requirement. The Commission determined not to review the remaining 
findings in the ID. The Commission also requested briefing from the 
parties on the issue of pre-suit knowledge, and briefing from the 
parties and the public on the issues of remedy, the public interest, 
and bonding. The Commission

[[Page 15743]]

received initial written submissions from ARM, Respondents, and the IA 
on November 20, 2015, and responsive written submissions from ARM, 
Respondents, and the IA on December 1, 2015. No submissions were 
received from the public.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions, responses, and other submissions from 
the parties, the Commission has determined that ARM has not proven a 
violation of section 337 by Solofill and DongGuan. Specifically, the 
Commission has determined to modify the ID's construction of ``a 
needle-like structure, disposed below the base,'' and, under the 
modified construction, affirms under modified reasoning the ID's 
findings on infringement and the technical prong of the domestic 
industry requirement. The Commission has also determined to reverse the 
ID's finding that Respondents are not liable for contributory and 
induced infringement. The Commission has further determined that that 
claims 5 and 6 of the '320 patent are invalid as anticipated by 
Beaulieu and that claims 5-7, 18, and 20 of the '320 patent are invalid 
for a lack of written description (Commissioner Kieff dissenting on 
written description). Additionally, the Commission has determined that 
Respondents have not shown that claims 7, 18, and 20 are invalid as 
anticipated or that claims 5-7, 18, and 20 are invalid as obvious. 
Finally, the Commission has determined to affirm the ID's findings on 
the economic prong. All other findings in the ID that are consistent 
with the Commission's determinations are affirmed.
    The Commission also previously found the statutory requirements of 
section 337(g)(1) (19 U.S.C. Sec.  1337(g)(1)) and Commission Rule 
210.16(a)(1) (19 CFR 210.16(a)(1)) met with respect to Eko Brands, 
Evermuch Technology, and Evermuch Company, and found these respondents 
in default. See ALJ Order No. 19, unreviewed Notice (May 18, 2015).
    The Commission has determined that the appropriate form of relief 
in this investigation is: (1) A limited exclusion order prohibiting the 
unlicensed entry of beverage brewing capsules, components thereof, and 
products containing same that are manufactured abroad by or on behalf 
of, or imported by or on behalf of, Eko Brands, Evermuch Technology, or 
Evermuch Company, that infringe one or more of claims 8 and 19 of the 
'320 patent; (2) cease and desist orders prohibiting Eko Brands, 
Evermuch Technology, and Evermuch Company from importing, selling, 
marketing, advertising, distributing, transferring (except for 
exportation), soliciting United States agents or distributors, and 
aiding or abetting other entities in the importation, sale for 
importation, sale after importation, transfer (except for exportation), 
or distribution of beverage brewing capsules, components thereof, and 
products containing same that infringe one or more of claims 8 and 19 
of the '320 patent. The Commission has further determined that the 
public interest factors enumerated in section 337(g)(1) (19 U.S.C. 
Sec.  1337(g)(1)) do not preclude the issuance of the remedial orders. 
Finally, the Commission has determined that the bond during the period 
of Presidential review shall be in the amount of 100 percent of the 
entered value of the imported subject articles of Eko Brands, Evermuch 
Technology, and Evermuch Company. The Commission's orders were 
delivered to the President and the United States Trade Representative 
on the day of their issuance. A Commission Opinion concerning the 
Commission's finding of no violation by Solofill or DongGuan will issue 
shortly.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. Sec.  
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 17, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-06654 Filed 3-23-16; 8:45 am]
 BILLING CODE 7020-02-P