81 FR 94417 - Certain Foam Footwear; Commission Determination To Adopt a Report Issued by the Office of Unfair Import Investigations as Its Advisory Opinion

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 247 (December 23, 2016)

Notice is hereby given that the U.S. International Trade Commission has determined to adopt the report prepared by the Office of Unfair Import Investigations (``OUII'') as the Commission's advisory opinion in the above-captioned proceeding.

[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Notices]
[Pages 94417-94418]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31051]


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INTERNATIONAL TRADE COMMISSION

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


Certain Foam Footwear; Commission Determination To Adopt a Report 
Issued by the Office of Unfair Import Investigations as Its Advisory 
Opinion

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 adopt the report prepared by the Office of 
Unfair Import Investigations (``OUII'') as the Commission's advisory 
opinion in the above-captioned proceeding.

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 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 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

[[Page 94418]]

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.
    On August 11, 2016, the Commission determined that requesters' 
petition complied with the requirements for institution of an advisory 
opinion proceeding under Commission Rule 210.79. The Commission 
therefore determined to institute an advisory opinion proceeding and 
assigned the proceeding to OUII. 81 FR 54820 (Aug. 17, 2016). The 
Commission assigned OUII the task of investigating and preparing a 
report concerning requesters' Fleece Dawgs footwear, and it named 
Crocs, Double Diamond, and USA Dawgs as parties to the proceeding.
    On November 7, 2016, OUII issued a report concluding that 
requesters' Mossy Oak Women's Fleece Dawgs footwear (``the Subject 
Articles'') is not covered by the general exclusion order and cease and 
desist order directed against Double Diamond issued in the underlying 
investigation. In so doing, OUII concluded, inter alia, that (1) 
requesters met their burden of showing non-infringement by the Subject 
Articles with respect to the claim term ``strap section'' for claims 1-
2 of the '858 patent; and (2) the Subject Articles do not meet the 
``ordinary observer'' test for infringement of the '789 patent. See 
Crocs, Inc. v. ITC, 598 F.3d 1294, 1302 (Fed. Cir. 2010). No party 
filed comments on the OUII report.
    After reviewing the report, the Commission has determined to adopt 
the report issued by OUII as its advisory opinion in this proceeding.
    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 20, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-31051 Filed 12-22-16; 8:45 am]
 BILLING CODE 7020-02-P