81 FR 54820 - Certain Foam Footwear; Institution of an Advisory Opinion Proceeding

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 159 (August 17, 2016)

Notice is hereby given that the U.S. International Trade Commission has determined to institute an advisory opinion proceeding in the above-captioned investigation.

[Federal Register Volume 81, Number 159 (Wednesday, August 17, 2016)]
[Notices]
[Page 54820]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-19561]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-567 (Advisory Opinion Proceeding)]


Certain Foam Footwear; Institution of an Advisory Opinion 
Proceeding

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 institute an advisory opinion proceeding 
in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, 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 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 May 11, 2006, based on a complaint, as amended, filed by Crocs, Inc. 
(``Crocs'') of Niwot, Colorado. 71 FR 27514-15 (May 11, 2006). The 
complaint alleged, inter alia, violations of section 337 of the Tariff 
Act of 1930, as amended (19 U.S.C. 1337), in the importation into the 
United States, the sale for importation, and the sale within the United 
States after importation of certain foam footwear, by reason of 
infringement of claims 1-2 of U.S. Patent No. 6,993,858 (``the '858 
patent'') and U.S. Patent No. D517,789 (``the '789 patent''). The 
notice of investigation named several respondents including Double 
Diamond Distribution Ltd. (``Double Diamond'') of Saskatoon, Canada.
    On July 25, 2008, the Commission issued its final determination 
finding no violation of section 337 based on non-infringement and non-
satisfaction of the technical prong of the domestic industry 
requirement with respect to the '789 patent, and invalidity of the '858 
patent as obvious under 35 U.S.C. 103. 73 FR 45073-74 (Aug. 1, 2008). 
On July 15, 2011, after an appeal to the U.S. Court of Appeals for the 
Federal Circuit and subsequent remand vacating the Commission's 
previous finding of no violation, the Commission found a violation of 
section 337 based on infringement of the asserted claims of the patents 
and issued a general exclusion order and, inter alia, a cease and 
desist order directed against Double Diamond. 76 FR 43723-24 (July 21, 
2011).
    On July 12, 2016, Double Diamond and U.S.A. Dawgs, Inc. (``USA 
Dawgs'') of Las Vegas, Nevada (collectively, the ``requesters'') 
petitioned for institution of an advisory opinion proceeding as to 
whether their Fleece Dawgs footwear is covered by the general exclusion 
order or cease and desist order directed against Double Diamond. No 
responses were filed.
    The Commission has determined that requesters' petition complies 
with the requirements for institution of an advisory opinion proceeding 
under Commission Rule 210.79 to determine whether their Fleece Dawgs 
footwear infringes the '789 patent or claims 1 or 2 of the '858 patent. 
Accordingly, the Commission has determined to institute an advisory 
opinion proceeding and refer requesters' petition to the Office of 
Unfair Import Investigations (``OUII''). The parties will furnish OUII 
with information as requested, and OUII shall investigate and issue a 
report to the Commission within ninety (90) days of the date of 
publication of this notice in the Federal Register. The Commission will 
issue an advisory opinion within 45 days of receipt of OUII's written 
report. The following entities are named as parties to the proceeding: 
(1) Crocs; (2) Double Diamond; and (3) USA Dawgs.
    The authority for the Commission's determination is contained in 
sections 335 and 337 of the Tariff Act of 1930, as amended (19 U.S.C. 
1335, 1337), and in Part 210 of the Commission's Rules of Practice and 
Procedure (19 CFR part 210).

    By Order of the Commission.

    Issued: August 11, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-19561 Filed 8-16-16; 8:45 am]
 BILLING CODE 7020-02-P