81 FR 70702 - Certain Arrowheads With Deploying Blades and Components Thereof and Packaging Therefor; Commission Decision To Review in Part an Initial Determination Granting Complainants' Motion for Summary Determination of a Violation of Section 337; Request for Submissions

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 198 (October 13, 2016)

Notice is hereby given that the U.S. International Trade Commission has determined to review in part an initial determination (``ID'') (Order No. 10) of the presiding administrative law judge (``ALJ'') granting complainants' motion for summary determination of a violation of section 337. The Commission also requests written submissions regarding remedy, bonding, and the public interest.

[Federal Register Volume 81, Number 198 (Thursday, October 13, 2016)]
[Notices]
[Pages 70702-70704]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-24719]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-977]


Certain Arrowheads With Deploying Blades and Components Thereof 
and Packaging Therefor; Commission Decision To Review in Part an 
Initial Determination Granting Complainants' Motion for Summary 
Determination of a Violation of Section 337; Request for Submissions

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part an initial determination 
(``ID'') (Order No. 10) of the presiding administrative law judge 
(``ALJ'') granting complainants' motion for summary determination of a 
violation of section 337. The Commission also requests written 
submissions regarding 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

[[Page 70703]]

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 December 22, 2015, based on a complaint filed on behalf of FeraDyne 
Outdoors LLC and Out RAGE LLC, both of Cartersville, Georgia. 80 FR 
79612-13. The complaint, as 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 
arrowheads with deploying blades and components thereof and packaging 
therefor by reason of infringement of certain claims of U.S. Patent 
Nos. RE44,144; 6,517,454 (``the '454 patent''); 8,758,176 (``the '176 
patent''); 8,986,141 (``the '141 patent''); 9,068,806 (``the '806 
patent''); 7,771,298 (``the '298 patent''); D710,962; D711,489; and of 
U.S. Trademark Registration No. 4,812,058. The complaint further 
alleges the existence of a domestic industry. The Commission's notice 
of investigation named the following nine respondents: Linyi Junxing 
Sports Equipment Co., Ltd. (``Junxing Sports'') of Shandong, China; 
Ningbo Faith Sports Co., Ltd. (``Faith Sports''), Ningbo Forever Best 
Import & Export Co., Ltd. (``Forever Best''), and Ningbo Linkboy 
Outdoor Sports Co., Ltd. (``Linkboy Outdoor''), all of Zhejiang, China; 
Shenzhen Zowaysoon Trading Company Ltd. (``Zowaysoon Trading'') of 
Shenzhen, China; Xiamen Xinhongyou Industrial Trade Co. Ltd. 
(``Xinhongyou Industrial'') and Xiamen Zhongxinyuan Industry & Trade 
Ltd. (``Zhongxinyuan Industry''), both of Fujian, China; and Zhengzhou 
IRQ Trading Limited Company (``IRQ Trading'') and Zhengzhou Paiao Trade 
Co., Ltd. (``Paiao Trade''), both of Henan, China. The Office of Unfair 
Import Investigations (``OUII'') is also a party to the investigation.
    On April 28, 2016, complainants filed a motion for summary 
determination of a violation of section 337 pursuant to Commission Rule 
210.16(c)(2) to support its request for entry of a general exclusion 
order with respect to all asserted intellectual property. OUII filed a 
response in support of the motion.
    On May 10, 2016, the Commission issued notice of its determination 
not to review the ALJ's ID (Order No. 6) finding the following seven 
respondents in default: Junxing Sports, Forever Best, Linkboy Outdoor, 
Zowaysoon Trading, Zhongxinyuan Industry, IRQ Trading, and Paiao Trade. 
On June 23, 2016, the Commission issued notice of its determination not 
to review the ALJ's ID (Order No. 8) finding Xinhongyou Industrial in 
default. On June 28, 2016, the Commission issued notice of its 
determination not to review the ALJ's ID (Order No. 9) terminating the 
investigation as to (1) Faith Sports based on withdrawal of the 
complaint as to Faith Sports; and (2) claims 2-3, 5, and 8 of the '545 
patent; claims 5 and 10 of the '298 patent; claim 3 of the '176 patent; 
claim 8 of the '141 patent; and claim 3 of the '806 patent based on 
withdrawal of these patent claims against all named respondents.
    The ALJ issued the subject ID on August 22, 2016, granting 
complainants' motion for summary determination. The ALJ found that all 
defaulting respondents met the importation requirement and that 
complainants satisfied the domestic industry requirement. See 19 U.S.C. 
1337(a)(1)(B), (a)(2). The ID finds that a violation of section 337 has 
occurred based on its finding that each of the defaulting respondents' 
accused products infringe one or more of the asserted claims of the 
patents at issue and infringe the trademark at issue as established by 
substantial, reliable, and probative evidence in accordance with 
Commission Rule 210.16(c)(2). The ID also contained the ALJ's 
recommended determination on remedy and bonding. The ALJ recommended 
issuance of a general exclusion order with respect to the asserted 
intellectual property, but did not recommend issuance of cease and 
desist orders directed against the defaulting respondents. No petitions 
for review were filed.
    Having examined the record of this investigation, the Commission 
has determined to review in part the subject ID. Specifically, the 
Commission has determined to review: (1) The ID's finding that 
complainants satisfy the economic prong of the domestic industry 
requirement under section 337(a)(3)(C) with respect to all asserted 
patents and the asserted trademark; and (2) the ID's finding that the 
Commission has personal jurisdiction over all defaulting respondents. 
The Commission also corrects typographical errors on pages 14, 18, and 
24 of the subject ID. The last two sentences of the first full 
paragraph on page 14 are deleted (i.e., beginning with ``In this 
investigation . . .''), and the two references to claim 32 of the '144 
patent on pages 18 and 24 are corrected to reference claim 38 of the 
'144 patent. The Commission has determined not to review the remainder 
of the ID. On review with respect to issue (1), the Commission has 
determined to take no position on the ID's finding that complainants 
satisfy the economic prong of the domestic industry requirement under 
section 337(a)(3)(C) with respect to all asserted patents and the 
asserted trademark. On review with respect to issue (2), the Commission 
has determined to modify the ID and adds the following sentence on page 
8 of the ID (before the sentence beginning with ``It is therefore found 
. . .''):

    Also, there is a sufficient connection between the defaulting 
respondents and the United States to make it fair to require them to 
defend the action at the Commission. See Mot. at 8-11, 66-68 (citing 
Certain Agricultural Tractors, Lawn Tractors, Riding Lawnmowers, and 
Components Thereof, Inv. No. 337-TA-486, Comm'n Op., 2003 WL 
22147635, at *12 (July 1, 2003)).

    As noted above, eight respondents were found in default. Section 
337(g) and Commission Rule 210.16(c) authorize the Commission to order 
relief against respondents found in default unless, after considering 
the public interest, it finds that such relief should not issue. Before 
the ALJ, complainants sought a general exclusion order under section 
337(g)(2) and cease and desist orders directed against the defaulting 
respondents. Because a general exclusion order is sought, complainants 
are required to establish that a violation of section 337 has occurred 
by substantive, reliable, and probative evidence pursuant to Commission 
Rule 210.16(c)(2).
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result 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 
respondent(s) 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

[[Page 70704]]

Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 
(December 1994). In particular, if complainants seek a cease and desist 
order directed against any defaulting respondent, please brief the 
following issues:
    (1) Please identify with citations to the record any information 
regarding commercially significant inventory in the United States as to 
each respondent against whom a cease and desist order is sought. If 
complainants also rely on other significant domestic operations that 
could undercut the remedy provided by an exclusion order, please 
identify with citations to the record such information as to each 
respondent against whom a cease and desist order is sought.
    (2) In relation to the infringing products, please identify any 
information in the record, including allegations in the pleadings, that 
addresses the existence of any domestic inventory, any domestic 
operations, or any sales-related activity directed at the United States 
for each respondent against whom a cease and desist order is sought.
    If 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.
    If 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 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 and prescribed by the 
Secretary of the Treasury. 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: Parties to the investigation, interested 
government agencies, and any other interested parties are encouraged to 
file written submissions on the issues of remedy, the public interest, 
and bonding. Such submissions should address the recommended 
determination by the ALJ on remedy and bonding.
    Complainants and OUII are also requested to submit proposed 
remedial orders for the Commission's consideration. Complainant is also 
requested to state the dates that the patents expire, 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 
written submissions and proposed remedial orders must be filed no later 
than close of business on October 20, 2016. Reply submissions must be 
filed no later than the close of business on October 27, 2016. 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 8 
true paper copies to the Office of the Secretary by noon the next day 
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-977'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/mles/handbook_on_electronic_filing.pdf). Persons with questions regarding 
filing should contact the Secretary (202-205-2000).
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. 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, solely for cybersecurity 
purposes. All contract personnel will sign appropriate nondisclosure 
agreements. All nonconfidential written submissions will be available 
for public inspection at the Office of the Secretary and on EDIS.
    Any person desiring to submit a document (or portion thereof) to 
the Commission in confidence must request confidential treatment. 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 201.6. 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 non-
confidential written submissions will be available for public 
inspection at the Office of the Secretary.
    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: October 6, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-24719 Filed 10-12-16; 8:45 am]
 BILLING CODE 7020-02-P