82 FR 23593 - Certain Air Mattress Systems, Components Thereof, and Methods of Using the Same; Commission Final Determination of Violation of Section 337; Issuance of a Limited Exclusion Order; Termination of Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 98 (May 23, 2017)

Page Range		23593-23595
FR Document		2017-10476

Notice is hereby given that the U.S. International Trade Commission (``the Commission'') has determined that there is a violation of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337) (``section 337'') by respondents Sizewise Rentals LLC of Kansas City, Missouri; American National Manufacturing Inc. of Corona, California; and Dires LLC and Dires LLC d/b/a Personal Comfort Beds of Orlando, Florida (collectively, ``Respondents'') in the above-captioned investigation. The Commission has issued a limited exclusion order (``LEO'') directed to products of the Respondents and has terminated the investigation.

Federal Register, Volume 82 Issue 98 (Tuesday, May 23, 2017)

[Federal Register Volume 82, Number 98 (Tuesday, May 23, 2017)]
[Notices]
[Pages 23593-23595]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-10476]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-971]

Certain Air Mattress Systems, Components Thereof, and Methods of
Using the Same; Commission Final Determination of Violation of Section
337; Issuance of a Limited Exclusion Order; 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 (``the Commission'') has determined that there is a
violation of section 337 of the Tariff Act of 1930, as amended (19
U.S.C. 1337) (``section 337'') by respondents Sizewise Rentals LLC of
Kansas City, Missouri; American National Manufacturing Inc. of Corona,
California; and Dires LLC and Dires LLC d/b/a Personal Comfort Beds of
Orlando, Florida (collectively, ``Respondents'') in the above-captioned
investigation. The Commission has issued a limited exclusion order
(``LEO'') directed to products of the Respondents and has terminated
the investigation.

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
on November 20, 2015, based on a complaint filed by Select Comfort
Corporation of Minneapolis, Minnesota and Select Comfort SC Corporation
of Greenville, South Carolina (collectively, ``Select Comfort,'' or
``Complainants''). 80 FR 72738 (Nov. 20, 2015). The complaint alleges
violations of section 337 of the Tariff Act of 1930, as

[[Page 23594]]

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 air mattress systems, components thereof, and
methods of using the same by reason of infringement of certain claims
of U.S. Patent Nos. 5,904,172 (``the '172 patent'') and 7,389,554
(``the '554 patent''). Id. In addition to the private parties named as
respondents, the Commission named the Office of Unfair Import
Investigations as a party in this investigation. Id.
Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the
Commission ordered that the presiding administrative law judge
(``ALJ''):

[S]hall take evidence or other information and hear arguments
from the parties and other interested persons with respect to the
public interest in this investigation, as appropriate, and provide
the Commission with findings of fact and a recommended determination
on this issue, which shall be limited to the statutory public
interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1).

80 FR 72738 (Nov. 20, 2015).
The evidentiary hearing on the question of violation of section 337
was held August 8-12, 2016. The final ID on violation was issued on
November 18, 2016. The ALJ issued his recommended determination on
remedy, the public interest and bonding on the same day. The ALJ found
no violation of section 337 in this investigation. The ALJ recommended
that should the Commission find a violation of section 337 in the
present investigation, it issue an LEO prohibiting the importation of
Respondents' air controllers and air mattress systems found to infringe
the asserted patents. The ALJ also recommended the inclusion of a
provision for the '554 patent, whereby Respondents could certify that
certain imports are not covered by the LEO. The ALJ did not recommend
that the Commission issue a cease and desist order in this
investigation. The ALJ further recommended a zero bond during the
period of Presidential review.
All parties to this investigation filed timely petitions for review
of various portions of the final ID, as well as timely responses to the
petitions.
On December 13, 2016, Respondents filed a ``Motion For a Limited
Re-Opening of the Record for Consideration of Prior Art Not Identified
By Complainants During Discovery.'' Both the IA and Complainants filed
timely responsive pleadings opposing Respondents' motion. The
Commission has determined to deny Respondents' motion to re-open the
record.
On December 19, 2016, both Complainants and Respondents filed their
respective Public Interest Statement pursuant to 19 CFR 210.50(a)(4).
Responses from the public were likewise received by the Commission
pursuant to notice. See Notice of Request for Statements on the Public
Interest (Nov. 29, 2016).
The Commission determined to review various portions of the final
ID and issued a Notice to that effect dated January 23, 2017 (``Notice
of Review''). 82 FR 8623 (Jan. 27, 2017). In the Notice of Review, the
Commission also set a schedule for the filing of written submissions on
the issues under review, including certain questions posed by the
Commission, and on remedy, the public interest, and bonding. The
parties have briefed, with initial and reply submissions, the issues
under review and the issues of remedy, the public interest, and
bonding.
Having examined the record in this investigation, including the
parties' submissions filed in response to the Notice of Review, the
Commission has determined as follows:
(1) To reverse (a) the ID's finding that Respondents' P5000, P6000,
and Arco products do not meet the ``guides'' and ``stops'' limitation
of claim 2 of the '172 patent; (b) the ID's finding that the Gen 3 Arco
and Platinum 5000/6000 controllers do not meet the ``guides'' and
``stops'' limitation of claim 12 of the '172 patent; and (c) the ID's
finding that the Gen 3 Arco and Platinum 5000/6000 controllers do not
infringe claim 12 of the '172 patent;
(2) To affirm the ID's finding that the '172 Accused Products do
not meet the claim limitation ``pressure monitor means being operably
coupled to the processor and being in fluid communication with the at
least one bladder for continuously monitoring the pressure in the at
least one bladder'' in claims 2, 6, 20, 22, and 24 of the '172 patent;
(3) To (a) modify the ID's finding that the '172 Accused Products
do not infringe claim 9 of the '172 patent by striking the words ``For
the reasons stated above in the discussion of claim 2'' in the first
full paragraph on page 23 of the ID and, instead, find that the Accused
Products do not meet the ``continuously monitoring'' limitation of
claim 9 and therefore do not infringe claim 9 for the reasons detailed
in the accompanying Commission Opinion; and (b) affirm the ID's finding
of no induced infringement of claim 9 of the '172 patent;
(4) To take no position on the ID's discussion in the last
paragraph on page 20 and the first paragraph on page 21 of the ID. See
Beloit Corporation v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir.1984)
(``Beloit'');
(5) To modify the ID's finding regarding non-infringement of claim
16 of the '554 patent by striking the words ``For the reasons stated
above in the discussion of claim 1,'' in the fourth paragraph on page
70 of the ID and instead find that the '554 Accused Products do not
meet the ``air posturizing sleep surface'' limitation of claim 16 and
therefore do not infringe claim 16 for the reasons detailed in the
accompanying Commission Opinion;
(6) To reverse the ID's determination that the '554 Domestic
Industry Products do not practice the '554 patent and thus do not
satisfy the technical prong of the domestic industry requirement with
respect to the '554 patent and, instead, determine that for the reasons
detailed in the accompanying Commission Opinion, Complainants have
satisfied the technical prong with respect to the '554 patent based
only on the U15 and U11 products practicing claim 16 of the '554
patent;
(7) To take no position on the ID's determination on whether
Complainants satisfied the economic prong with regard to the '554
patent. See Beloit, 742 F.2d at 1423.
(8) To reverse the ID's determination regarding the economic prong
of the domestic industry requirement with respect to the '172 patent,
and find that the economic prong of the domestic industry requirement
is satisfied for the '172 patent.
Accordingly, the Commission finds that there is a violation of
section 337 with respect to the '172 patent in this investigation. The
Commission has determined that the appropriate relief in this
investigation includes an LEO prohibiting the unlicensed entry of
infringing air mattress systems, components thereof, and methods of
using the same that are covered by claims 12 or 16 of the '172 patent
and that are manufactured abroad by or on behalf of, or imported by or
on behalf of Respondents, or their affiliated companies, parents,
subsidiaries, or other related business entities, or their successors
or assigns.
The Commission has further determined that the public interest
factors enumerated in section 337(d)(l) (19 U.S.C. 1337(d)(l)) do not
preclude issuance of the LEO. Finally, the Commission has determined
that the amount of a bond should be set to zero (0) percent of entered
value during the period of Presidential review (19 U.S.C. 1337(j)). The
Commission's order was delivered to the President and the

[[Page 23595]]

United States Trade Representative on the day of its issuance.
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: May 17, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-10476 Filed 5-22-17; 8:45 am]
BILLING CODE 7020-02-P

23594 Federal Register / Vol. 82, No. 98 / Tuesday, May 23, 2017 / Notices

amended, 19 U.S.C. 1337, in the On December 19, 2016, both the ID. See Beloit Corporation v. Valmet
importation into the United States, the Complainants and Respondents filed Oy, 742 F.2d 1421, 1423 (Fed. Cir.1984)
sale for importation, and the sale within their respective Public Interest (‘‘Beloit’’);
the United States after importation of Statement pursuant to 19 CFR (5) To modify the ID’s finding
certain air mattress systems, 210.50(a)(4). Responses from the public regarding non-infringement of claim 16
components thereof, and methods of were likewise received by the of the ’554 patent by striking the words
using the same by reason of Commission pursuant to notice. See ‘‘For the reasons stated above in the
infringement of certain claims of U.S. Notice of Request for Statements on the discussion of claim 1,’’ in the fourth
Patent Nos. 5,904,172 (‘‘the ’172 Public Interest (Nov. 29, 2016). paragraph on page 70 of the ID and
patent’’) and 7,389,554 (‘‘the ’554 The Commission determined to instead find that the ’554 Accused
patent’’). Id. In addition to the private review various portions of the final ID Products do not meet the ‘‘air
parties named as respondents, the and issued a Notice to that effect dated posturizing sleep surface’’ limitation of
Commission named the Office of Unfair January 23, 2017 (‘‘Notice of Review’’). claim 16 and therefore do not infringe
Import Investigations as a party in this 82 FR 8623 (Jan. 27, 2017). In the Notice claim 16 for the reasons detailed in the
investigation. Id. of Review, the Commission also set a accompanying Commission Opinion;
Pursuant to Commission Rule schedule for the filing of written (6) To reverse the ID’s determination
210.50(b)(1), 19 CFR 210.50(b)(1), the submissions on the issues under review, that the ’554 Domestic Industry
Commission ordered that the presiding including certain questions posed by the Products do not practice the ’554 patent
administrative law judge (‘‘ALJ’’): Commission, and on remedy, the public and thus do not satisfy the technical
interest, and bonding. The parties have prong of the domestic industry
[S]hall take evidence or other information briefed, with initial and reply requirement with respect to the ’554
and hear arguments from the parties and patent and, instead, determine that for
other interested persons with respect to the
submissions, the issues under review
public interest in this investigation, as and the issues of remedy, the public the reasons detailed in the
appropriate, and provide the Commission interest, and bonding. accompanying Commission Opinion,
with findings of fact and a recommended Having examined the record in this Complainants have satisfied the
determination on this issue, which shall be investigation, including the parties’ technical prong with respect to the ’554
limited to the statutory public interest factors submissions filed in response to the patent based only on the U15 and U11
set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1). Notice of Review, the Commission has products practicing claim 16 of the ’554
80 FR 72738 (Nov. 20, 2015). determined as follows: patent;
(1) To reverse (a) the ID’s finding that (7) To take no position on the ID’s
The evidentiary hearing on the Respondents’ P5000, P6000, and Arco determination on whether Complainants
question of violation of section 337 was products do not meet the ‘‘guides’’ and satisfied the economic prong with
held August 8–12, 2016. The final ID on ‘‘stops’’ limitation of claim 2 of the ’172 regard to the ’554 patent. See Beloit, 742
violation was issued on November 18, patent; (b) the ID’s finding that the Gen F.2d at 1423.
2016. The ALJ issued his recommended 3 Arco and Platinum 5000/6000 (8) To reverse the ID’s determination
determination on remedy, the public controllers do not meet the ‘‘guides’’ regarding the economic prong of the
interest and bonding on the same day. and ‘‘stops’’ limitation of claim 12 of the domestic industry requirement with
The ALJ found no violation of section ’172 patent; and (c) the ID’s finding that respect to the ’172 patent, and find that
337 in this investigation. The ALJ the Gen 3 Arco and Platinum 5000/6000 the economic prong of the domestic
recommended that should the controllers do not infringe claim 12 of industry requirement is satisfied for the
Commission find a violation of section the ’172 patent; ’172 patent.
337 in the present investigation, it issue (2) To affirm the ID’s finding that the Accordingly, the Commission finds
an LEO prohibiting the importation of ’172 Accused Products do not meet the that there is a violation of section 337
Respondents’ air controllers and air claim limitation ‘‘pressure monitor with respect to the ’172 patent in this
mattress systems found to infringe the means being operably coupled to the investigation. The Commission has
asserted patents. The ALJ also processor and being in fluid determined that the appropriate relief in
recommended the inclusion of a communication with the at least one this investigation includes an LEO
provision for the ’554 patent, whereby bladder for continuously monitoring the prohibiting the unlicensed entry of
Respondents could certify that certain pressure in the at least one bladder’’ in infringing air mattress systems,
imports are not covered by the LEO. The claims 2, 6, 20, 22, and 24 of the ’172 components thereof, and methods of
ALJ did not recommend that the patent; using the same that are covered by
Commission issue a cease and desist (3) To (a) modify the ID’s finding that claims 12 or 16 of the ’172 patent and
order in this investigation. The ALJ the ’172 Accused Products do not that are manufactured abroad by or on
further recommended a zero bond infringe claim 9 of the ’172 patent by behalf of, or imported by or on behalf
during the period of Presidential review. striking the words ‘‘For the reasons of Respondents, or their affiliated
All parties to this investigation filed stated above in the discussion of claim companies, parents, subsidiaries, or
timely petitions for review of various 2’’ in the first full paragraph on page 23 other related business entities, or their
portions of the final ID, as well as timely of the ID and, instead, find that the successors or assigns.
responses to the petitions. Accused Products do not meet the The Commission has further
On December 13, 2016, Respondents ‘‘continuously monitoring’’ limitation of determined that the public interest
filed a ‘‘Motion For a Limited Re- claim 9 and therefore do not infringe factors enumerated in section 337(d)(l)
Opening of the Record for Consideration (19 U.S.C. 1337(d)(l)) do not preclude
sradovich on DSK3GMQ082PROD with NOTICES

claim 9 for the reasons detailed in the
of Prior Art Not Identified By accompanying Commission Opinion; issuance of the LEO. Finally, the
Complainants During Discovery.’’ Both and (b) affirm the ID’s finding of no Commission has determined that the
the IA and Complainants filed timely induced infringement of claim 9 of the amount of a bond should be set to zero
responsive pleadings opposing ’172 patent; (0) percent of entered value during the
Respondents’ motion. The Commission (4) To take no position on the ID’s period of Presidential review (19 U.S.C.
has determined to deny Respondents’ discussion in the last paragraph on page 1337(j)). The Commission’s order was
motion to re-open the record. 20 and the first paragraph on page 21 of delivered to the President and the

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Federal Register / Vol. 82, No. 98 / Tuesday, May 23, 2017 / Notices 23595

United States Trade Representative on In this action, the United States, on To submit Send them to:
the day of its issuance. behalf of the U.S. Environmental comments:
The authority for the Commission’s Protection Agency, together with the
determination is contained in section State of Texas, filed a Complaint and By email ....... pubcomment-ees.enrd@
337 of the Tariff Act of 1930, as proposed Consent Decree pertaining to usdoj.gov.
amended (19 U.S.C. 1337), and in Part By mail ......... Assistant Attorney General,
Clean Air Act violations at a bulk U.S. DOJ—ENRD, P.O.
210 of the Commission’s Rules of chemical storage tank facility located on Box 7611, Washington, DC
Practice and Procedure (19 CFR part the Houston Ship Channel that is owned 20044–7611.
210). and operated by Vopak Terminals North
By order of the Commission. America Inc. and Vopak Logistic During the public comment period,
Issued: May 17, 2017. Services USA Inc. (collectively, the consent decree may be examined
Lisa R. Barton, ‘‘Vopak’’). In the joint Complaint, the and downloaded at this Justice
Secretary to the Commission.
U.S. and the State of Texas allege Department Web site: https://
violations of (1) the New Source www.justice.gov/enrd/consent-decrees.
[FR Doc. 2017–10476 Filed 5–22–17; 8:45 am]
Performance Standards (‘‘NSPS’’) We will provide a paper copy of the
BILLING CODE 7020–02–P
requirements under Section 111 of the consent decree upon written request
Clean Air Act (‘‘CAA’’) and the and payment of reproduction costs.
implementing regulations, promulgated Please mail your request and payment
DEPARTMENT OF JUSTICE at 40 CFR part 60, subparts A, Ka, and to: Consent Decree Library, U.S. DOJ—
Kb; (2) the National Emission Standards ENRD, P.O. Box 7611, Washington, DC
Foreign Claims Settlement
for Hazardous Air Pollutants 20044–7611.
Commission
requirements under Section 112 of the Please enclose a check or money order
[F.C.S.C. Meeting and Hearing Notice No. CAA, 42 U.S.C. 7412, and the for $24.50 (25 cents per page
5–17] implementing regulations promulgated reproduction cost) payable to the United
at 40 CFR part 63, subparts A, DD, and States Treasury.
Sunshine Act Meeting EEEE; (3) the operating permit
requirements of Title V of the CAA, and Thomas P. Carroll,
The Foreign Claims Settlement
Assistant Section Chief, Environmental
Commission, pursuant to its regulations the implementing regulations; (4) the
federally enforceable Texas State Enforcement Section, Environment and
(45 CFR part 503.25) and the Natural Resources Division.
Government in the Sunshine Act (5 Implementation Plan; and (5) the
[FR Doc. 2017–10467 Filed 5–22–17; 8:45 am]
U.S.C. 552b), hereby gives notice in Facility’s operating permit, issued by
the Texas Commission on BILLING CODE 4410–15–P
regard to the scheduling of open
meetings as follows: Environmental Quality.
WEDNESDAY, MAY 31, 2017: 10:00 a.m.— Under the proposed settlement,
Vopak agrees to pay $2.5 million in civil DEPARTMENT OF LABOR
Issuance of Proposed Decisions in
claims against Iraq. penalties, split evenly between the
Employment and Training
STATUS: Open. United States and the State of Texas and
Administration
All meetings are held at the Foreign $40,000 in attorney’s fees to the State of
Claims Settlement Commission, 600 E Texas. In addition, the settlement Workforce Innovation and Opportunity
Street NW., Washington, DC. Requests requires Vopak to implement a range of Act (WIOA) 2017; Lower Living
for information, or advance notices of injunctive relief measures, including: (1) Standard Income Level (LLSIL)
intention to observe an open meeting, Constructing and operating a flare and
may be directed to: Patricia M. Hall, other emission controls at its AGENCY: Employment and Training
Foreign Claims Settlement Commission, wastewater treatment system; (2) Administration (ETA), Labor.
600 E Street NW., Suite 6002, implementing an advanced tank ACTION: Notice.
Washington, DC 20579. Telephone: inspection program at its tank terminal;
(3) engaging a third party auditor to SUMMARY: Title I of the Workforce
(202) 616–6975.
review Vopak’s waste minimization Innovation and Opportunity Act
Brian M. Simkin, practices and to monitor Vopak’s (WIOA) requires the U.S. Secretary of
Chief Counsel. compliance with the settlement; and (4) Labor (Secretary) to update and publish
[FR Doc. 2017–10665 Filed 5–19–17; 4:45 pm] undertaking various other measures to the LLSIL tables annually, for uses
BILLING CODE 4410–BA–P bring the facility into compliance with described in the law (including
the Clean Air Act. determining eligibility for youth). WIOA
The publication of this notice opens defines the term ‘‘low income
DEPARTMENT OF JUSTICE a period for public comment on the individual’’ as one who qualifies under
consent decree. Comments should be various criteria, including an individual
Notice of Lodging of Proposed in a family with total family income for
addressed to the Acting Assistant
Consent Decree Under the Clean Air a six-month period that does not exceed
Attorney General, Environment and
Act the higher level of the poverty line or 70
Natural Resources Division, and should
On May 17, 2017, the Department of refer to United States and State of Texas percent of the LLSIL. This issuance
Justice lodged a proposed consent v. Vopak Terminal Deer Park Inc. and provides the Secretary’s annual LLSIL
sradovich on DSK3GMQ082PROD with NOTICES

decree with the United States District Vopak Logistics Services USA Inc., Civil for 2017 and references the current 2017
Court for the Southern District of Texas Action No. 4:17–cv–1518, D.J. Ref. No. Health and Human Services ‘‘Poverty
in the lawsuit entitled United States and 90–5–2–1–11406. All comments must be Guidelines.’’
State of Texas v. Vopak Terminal Deer submitted no later than thirty (30) days DATES: This issuance is effective May
Park Inc. and Vopak Logistics Services after the publication date of this notice. 23, 2017.
USA Inc., Civil Action No. 4:17–cv– Comments may be submitted either by For Further Information or Questions
1518. email or by mail: on LLSIL: Please contact Samuel Wright,

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Document Created: 2017-05-23 02:14:40
Document Modified: 2017-05-23 02:14:40

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
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.
FR Citation		82 FR 23593