82 FR 10395 - Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and Kits Containing the Same; Modification of Initial Determination; Issuance of a General Exclusion Order, a Limited Exclusion Order, and Cease and Desist Orders; Termination of Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 27 (February 10, 2017)

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 (19 U.S.C. 1337) in the above- captioned investigation. The Commission has determined to modify the ALJ's initial determination (``ID'') (Order No. 42) in part and to issue a general exclusion order (``GEO''), a limited exclusion order (``LEO''); and cease and desist orders (``CDOs''). The investigation is terminated.

[Federal Register Volume 82, Number 27 (Friday, February 10, 2017)]
[Notices]
[Pages 10395-10396]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-02751]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-959]


Certain Electric Skin Care Devices, Brushes and Chargers 
Therefor, and Kits Containing the Same; Modification of Initial 
Determination; Issuance of a General Exclusion Order, a Limited 
Exclusion Order, and Cease and Desist Orders; 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 (19 U.S.C. 1337) in the above-
captioned investigation. The Commission has determined to modify the 
ALJ's initial determination (``ID'') (Order No. 42) in part and to 
issue a general exclusion order (``GEO''), a limited exclusion order 
(``LEO''); and cease and desist orders (``CDOs''). The investigation is 
terminated.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3115. 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 
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337''), on June 25, 2015, based on a complaint filed by 
Pacific Bioscience Laboratories, Inc. of Redmond, Washington 
(``Complainant,'' or ``PBL''). 80 FR 36576-77 (Jun. 25, 2015). The 
amended complaint, as supplemented, alleges a violation of section 337 
based upon the importation into the United States, the sale for 
importation, or the sale within the United States after importation of 
certain electric skin care devices, brushes and chargers therefor, and 
kits containing the same by reason of infringement of certain claims of 
U.S. Patent Nos. 7,320,691 (``the '691 patent'') and 7,386,906 (``the 
'906 patent''), and U.S. Design Patent No. D523,809 (``the D'809 
patent''). The complaint further alleges violations of section 337 by 
reason of trade dress infringement, the threat or effect of which is to 
destroy or substantially injure an industry in the United States. Id. 
The complaint named numerous respondents. The Commission's Office of 
Unfair Import Investigations was named as a party.
    During the course of the investigation, eight of the respondents 
were terminated by consent order: Nutra-Luxe M.D., LLC of Fort Myers, 
Florida (Order No. 10) (consent order issued Jan. 5, 2016); 
SkincarebyAlana of Dana Point, California (Order No. 11) (consent order 
issued Oct. 6, 2015); Unicos USA, Inc. of LaHabra, California (Order 
No. 15) (consent order issued Oct. 20, 2015); H2PRO Beautylife, Inc. of 
Placentia, California (Order No. 19) (consent order issued Oct. 22, 
2015); Jewlzie of New York, New York (Order No. 20) (consent order 
issued Oct. 22, 2015); Home Skinovations Inc. of Richmond Hill, 
Ontario, Canada, and Home Skinovations Ltd. of Yokneam, Israel (Order 
No. 30) (consent order issued Dec. 23, 2015); and Accord Media, LLC of 
New York, New York (Order No. 31) (consent order issued Dec. 23, 2015). 
Respondent RN Ventures Ltd. of London, United Kingdom, was terminated 
based on a settlement agreement (Order No. 36) (not reviewed Feb. 4, 
2016). Respondents Michael Todd LP and MTTO LLC, both of Port St. 
Lucie, Florida, were also terminated based on a settlement agreement 
(Order No. 37) (not reviewed Mar. 3, 2016).
    The remaining ten respondents were found in default: Coreana 
Cosmetics Co., Ltd. of Chungcheongnam-do, Republic of Korea; Flageoli 
Classic Limited of Las Vegas, Nevada (``Flageoli''); Serious Skin Care, 
Inc. of Carson City, Nevada (``Serious Skin Care''); Shanghai Anzikang 
Electric Co., Ltd. of Shanghai, China (``Anzikang''); and Wenzhou Ai Er 
Electrical Technology Co., Ltd. of ZheJiang, China (Order No. 13) (not 
reviewed, as modified by Order No. 15, Oct. 20, 2015); ANEX Corporation 
of Seoul, Republic of Korea; Korean Beauty Co., Ltd. of Seoul, Republic 
of Korea; and Our Family Jewels, Inc. of Parker, Colorado (``Our Family 
Jewels'') (Order No. 18) (not reviewed Oct. 22, 2015); Beauty Tech, 
Inc. of Coral Gables, Florida (``Beauty Tech'') (Order No. 24) (not 
reviewed Nov. 13, 2015); and Xnovi Electronic Co., Ltd. of Shenzhen, 
China (Order No. 32) (not reviewed Dec. 23, 2015) (collectively, ``the 
Defaulting Respondents'').
    On February 18, 2016, complainant PBL filed a motion for summary 
determination of violation of Section 337 by the Defaulting 
Respondents. The Commission investigative attorney (``IA'') filed a 
response in support of the motion. No other responses were filed.
    On April 11, 2016, the ALJ issued an ID (Order No. 42) granting 
complainant's motion for summary determination of violation and making 
recommendations regarding remedy and

[[Page 10396]]

bonding. The IA filed a timely petition for review-in-part of the ID. 
No other party petitioned for review of the ID. Complainant PBL filed a 
response in support of the IA's petition. No other responses were 
filed.
    On May 26, 2016, the Commission determined to review the ID in 
part, and issued a ``Notice Of A Commission Determination To Review In 
Part An Initial Determination Granting Complainant's Motion For Summary 
Determination Of Violation Of Section 337; Request For Written 
Submissions On Remedy, The Public Interest, And Bonding'' (``the 
Commission Notice''), in which the Commission specified the issues 
under review. See 81 FR 35377-79 (Jun. 2, 2016). In particular, the 
Commission determined ``to review the ID's findings on the economic 
prong of the domestic industry requirement as to the patent-based 
allegations, all issues related to violation of the asserted trade 
dress, and to correct certain minor typographical errors.'' Commission 
Notice at 2. The Commission did not request any submissions on the 
issues under review.
    The Commission requested written submissions on remedy, public 
interest, and bonding. Id. at 3. PBL and the IA timely filed their 
submissions pursuant to the Commission Notice. Settled respondents 
Michael Todd LP and MTTO LLC also filed a Written Submission on the 
Issue of Remedy and a Reply to PBL's Written Submission. No other 
submissions were received in response to the Commission Notice.
    Having examined the record in this investigation, the Commission 
has determined as follows:
    (I) With respect to the ID's findings on the economic prong of the 
domestic industry requirement as to the patent-based allegations:
    (A) To vacate the subsection labeled ``Significant Investment.'' on 
pages 21-22 of the ID.
    (B) To take no position on, and therefore vacate, the ID's analysis 
and findings pertaining to the ID's determination that the ``non-
manufacturing expenditures would need to be backed out of the 
calculation of qualifying investments under subsections (A) as well as 
(B).'' ID/RD at 25.
    (C) To affirm the ID's finding that PBL satisfied the economic 
prong requirement under subsections 337(a)(3)(A) and (B).
    (D) To take no position on, and therefore vacate, the ID's analysis 
and findings regarding whether PBL satisfied the economic prong 
requirement under subsection (C) of section 337(a)(3). See Beloit 
Corporation v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir.1984) 
(``Beloit'').
    (II) With respect to all of the ID's findings pertaining to the 
alleged violation of PBL's asserted trade dress, the Commission takes 
no position. See Beloit, 742 F.2d at 1423. The Commission finds that 
the respondents accused of infringing the trade dress are in default 
under section 337(g)(1).
    (III) The Commission has corrected two typographical errors by 
substituting ``Mot. Ex. 35 (Fabien Decl.) ]] 31, 35'' for ``Id. ]] 
31,35'' in the last paragraph on page 38 of the ID, and ``Mot. Ex. 35 
(Fabien Decl.) ]] 31, 35'' for ``Id. ]] 31, 35'' in the last paragraph 
on page 31 of the ID.
    Having reviewed the submissions on remedy, the public interest and 
bonding filed in response to the Commission's Notice, and the 
evidentiary record, the Commission has determined that the appropriate 
form of relief in this investigation is: (a) A GEO prohibiting the 
unlicensed importation of certain electric skin care devices, brushes 
or chargers therefor, or kits containing same that infringe one or more 
of claims 1, 4-6, 16, 22, 31, 33, 39-41, 42, 44-46, 49 of the '691 
patent and claims 1-2, 4-5, and 7-15 of the '906 patent; (b) an LEO 
prohibiting the unlicensed entry of (i) infringing electric skin care 
devices, brushes or chargers therefor, or kits containing same that are 
covered by the claim of the D'809 patent and that are manufactured 
abroad by or on behalf of, or imported by or on behalf of respondents 
Beauty Tech; Flageoli; Our Family Jewels; Serious Skin Care; and 
Anzikang, and (ii) electric skin care devices, brushes or chargers 
therefor, or kits containing same that are covered by one or more of 
the Clarisonic Device Trade Dress or Clarisonic Charging Station Trade 
Dress and that are manufactured abroad by or on behalf of, or imported 
by or on behalf of respondents Our Family Jewels or Anzikang; and (c) 
cease and desist orders directed against each domestic and foreign 
Defaulting Respondent.
    Chairman Schmidtlein and Commissioner Kieff each write separately 
to explain their views as to the basis for issuing the cease and desist 
orders.
    The Commission has further determined that the public interest 
factors enumerated in subsections (d)(l), (f)(1), and (g)(1) (19 U.S.C. 
1337(d)(l), (f)(1), (g)(1)) do not preclude issuance of the above-
referenced remedial orders. Additionally, 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 orders, opinion, and the record upon which it 
based its determination were delivered to the President and to the 
United States Trade Representative on the day of their issuance. The 
Commission has also notified the Secretary of the Treasury of the 
orders.
    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: February 6, 2017.

Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-02751 Filed 2-9-17; 8:45 am]
BILLING CODE 7020-02-P