82 FR 8623 - Certain Air Mattress Systems, Components Thereof, and Methods of Using the Same Commission Determination To Review in Part a Final Initial Determination; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 17 (January 27, 2017)

Page Range		8623-8625
FR Document		2017-01838

Notice is hereby given that the U.S. International Trade Commission (``the Commission'') has determined to review in part the final initial determination (``ID'') issued by the presiding administrative law judge (``ALJ'') finding no violation of section 337 of the Tariff Act of 1930, as amended (``section 337''), in the above- referenced investigation on November 18, 2016.

Federal Register, Volume 82 Issue 17 (Friday, January 27, 2017)

[Federal Register Volume 82, Number 17 (Friday, January 27, 2017)]
[Notices]
[Pages 8623-8625]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-01838]

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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 Determination To Review in Part a Final
Initial Determination; Schedule for Filing Written Submissions on the
Issues Under Review and on Remedy, the Public Interest, and Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``the Commission'') has determined to review in part the
final initial determination (``ID'') issued by the presiding
administrative law judge (``ALJ'') finding no violation of section 337
of the Tariff Act of 1930, as amended (``section 337''), in the above-
referenced investigation on November 18, 2016.

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 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. The notice of investigation names as 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''). Id. The Office of Unfair Import Investigations
(``OUII'') was also named as a party to the investigation. Id.
Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the
Commission ordered that the presiding 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

[[Page 8624]]

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 if the Commission finds a violation of section 337 in the present
investigation, the Commission issue a limited exclusion order (``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 certify that certain imports are not covered by the LEO
because they contain components for use in non-infringing products.
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 19, 2016, both Complainants and Respondents filed their
respective Public Interest Statement pursuant to 19 CFR 210.50(a)(4).
Responses from public were likewise received by the Commission pursuant
to notice. See Notice of Request for Statements on the Public Interest
(Nov. 29, 2016).
Having examined the record in this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID in part. In
particular, the Commission has determined as follows:

(1) To review the ID's findings that the P5000, P6000, and Arco
products do not meet ``guides and stops'' limitation in claim 2 of
the `172 patent, and that these products do not meet the same claim
limitation in claim 12 of the `172 patent and for that reason do not
infringe that claim;
(2) to review the ID's finding that the `172 Accused Products do
not meet claim limitation ``pressure monitor means being operably
coupled to the processor and being in fluid communications 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 review the ID's finding that the `172 Accused Products do
not infringe claim 9 of the `172 patent;
(4) to review, in part, the ID's analysis regarding whether the
`172 Accused Products infringe claim 2 of the `172 patent for the
limited purpose of taking no position on the ALJ's discussion in the
last paragraph of page 20 and in the first paragraph of page 21 of
the ID;
(5) to review the ID's finding that claim 16 of the `554 patent
is not infringed because Complainants did not establish that the
accused products practice the ``air posturizing sleep surface''
limitation;
(6) to review the ID's finding that the `554 Domestic Industry
Products do not practice the `554 patent;
(7) to review the ID's finding that Complainants did not satisfy
the economic prong of the domestic industry requirement with respect
to both the `172 and `554 patents.
The Commission has determined not to review the remainder of the
ID.

The parties are requested to brief their positions on only the
following issues, with reference to the applicable law and the
evidentiary record:
1. The ID finds that: ``Because Select Comfort asserts that guides
and stops of the P5000, P6000, and Arco products are screws and screw
bores, the undersigned finds that Select Comfort has failed to
establish that these products meet this limitation.'' ID at 27.
a. Does the record support a finding that ``Select Comfort asserts
that guides and stops of the P5000, P6000, and Arco products are screws
and screw bores?''
b. Does the record show that P5000, P6000, and Arco products meet
the guides and stops limitation in claims 2 and 12 of the `172 patent?
2. The ID finds that because Complainants did not establish that
the `172 Accused Products continuously monitor pressure using a
processor in conjunction with the transducer, the `172 Accused Products
do not meet claim limitation ``and pressure monitor means being
operably coupled to the processor and being in fluid communications
with the at least one bladder for continuously monitoring the pressure
in the at least one bladder.'' ID at 32; see id. at 29-32.
a. To the extent not already briefed to the Commission, please
discuss whether the record supports the ID's finding (with supporting
citations to the record evidence).
3. The ID finds that: ``Claim 9, like claim 2, includes the term
`continuously monitoring.' For the reasons stated above in the
discussion of claim 2, claim 9 is not infringed because Select Comfort
did not establish that the `172 Accused Products `continuously monitor'
pressure.'' ID at 32.
a. Does the record show that claim 9 of the `172 patent is not
infringed because Select Comfort did not establish that the `172
Accused Products ``continuously monitor'' pressure?
4. The ID finds that: ``Claim 16, like claim 1, includes the term
`air posturizing sleep surface.' For the reasons stated above in the
discussion of claim 1, claim 16 is not infringed because Select Comfort
did not establish that the accused products practice the `air
posturizing sleep surface' limitation.'' ID at 70.
a. Does the record show that the accused products infringe the
``air posturizing sleep surface'' limitation of claim 16 of the `554
patent?
5. Does the record show that the `554 Domestic Industry Products
practice the `554 patent?
6. The ID finds that: ``Claim 16, like claim 1, includes the term
`air posturizing sleep surface.' For the reasons stated above in the
discussion of claim 1, the `554 DI products do not practice claim 16
because they do not meet the `air posturizing sleep surface'
limitation.'' ID at 75.
a. Does the record show that the `554 DI products practice the
``air posturizing sleep surface'' limitation of claim 16 of the `554
patent?
7. With respect to Complainants' investment in plant and equipment
alleged under 19 U.S.C. 1337(a)(3)(A) the ID finds that:

While the Commission has stated that a precise allocation of
expenses among various DI products is not necessary, that precedent
cannot mean that Select Comfort's proposed allocation is acceptable;
i.e., allocating 100% of the rental expenses to the `172 patent, and
then a portion of those same expenses to the `554 patent DI
products. Accordingly, Select Comfort has not shown a domestic
industry for either the `172 patent or the `554 patent based upon 19
U.S.C. 1337(a)(3)(A).

ID at 89-90.

a. Do Commission and judicial precedents and the record in the
present investigation support the ID's finding?
b. Please explain with citation to the record what portion of the
asserted domestic investment in plant and equipment, in terms of the
dollar amount and percentage, can be allocated to the articles that
practice the `172 patent.
c. Does the record show that Complainants' investment in plant and
equipment under 19 U.S.C. 1337(a)(3)(A) is significant with respect to
the articles that practice the `172 patent?
d. Please explain with citation to the record what portion of the
asserted domestic investment in plant and equipment, in terms of the
dollar amount and percentage, can be allocated to the articles that
practice the `554 patent.
e. Does the record show that Complainants' investment in plant and
equipment under 19 U.S.C. 1337(a)(3)(A) is significant with respect to
the articles that practice the `554 patent?

[[Page 8625]]

8. With respect to Complainants' employment of labor or capital
alleged under 19 U.S.C. 1337(a)(3)(B) the ID finds that:

As with the plant and equipment issue in the previous section,
Select Comfort has again allocated 100% of the relevant expense (in
this section, employee compensation) to the `172 patent DI products
and then allocated a portion of those same expenses to the `554 DI
products. (CX-0445 at Q/A 59, 62; CX-0449C at Q/A 52; CIB at 92-93.)
For the reasons set forth in the previous section, this argument is
not persuasive. Accordingly, Select Comfort has not shown a domestic
industry for either the `172 patent or the `554 patent based upon 19
U.S.C. 1337(a)(3)(B).

ID at 91.
a. Do Commission and judicial precedents and the record in the
present investigation support the ID's finding?
b. Please explain with citation to the record what portion of the
asserted domestic employment of labor or capital, in terms of the
dollar amount and percentage, can be allocated to the articles that
practice the `172 patent.
c. Does the record show that Complainants' employment of labor or
capital under 19 U.S.C. 1337(a)(3)(B) is significant with respect to
the articles that practice the `172 patent?
d. Please explain with citation to the record what portion of the
asserted domestic employment of labor or capital, in terms of the
dollar amount and percentage, can be allocated to the articles that
practice the `554 patent.
e. Does the record show that Complainants' employment of labor or
capital under 19 U.S.C. 1337(a)(3)(B) is significant with respect to
the articles that practice the `554 patent?
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 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 are likely to do so. For
background, see Certain Devices for Connecting Computers via Telephone
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10
(Dec. 1994).
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.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues under review. The submissions
should be concise and thoroughly referenced to the record in this
investigation. 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
on remedy, the public interest and bonding issued on December 1, 2016,
by the ALJ. Complainants and the Commission investigative attorney
(``IA'') are also requested to submit proposed remedial orders for the
Commission's consideration.
Complainants are further requested to provide the expiration date
of the `172 and `554 patents, the HTSUS numbers under which the accused
articles are imported, and any known importers of the accused products.
The written submissions and proposed remedial orders must be filed no
later than the close of business on February 6, 2017. Reply submissions
must be filed no later than the close of business on February 13, 2017.
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-971'') 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/rules/handbook_on_electronicfiling.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 non-confidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
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: January 23, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-01838 Filed 1-26-17; 8:45 am]
BILLING CODE 7020-02-P

Federal Register / Vol. 82, No. 17 / Friday, January 27, 2017 / Notices 8623

Comments: 55± Yrs. old; old admin. bldg.; Landholding Agency: Navy Washington, DC 20436, telephone (202)
3,320 sq. ft.; old processing bldg.; 3,485 sq. Property Number: 77201710004 205–3115. Copies of non-confidential
ft.; vacant 24 mos.; sits on .39 fee acres; Status: Unutilized documents filed in connection with this
contact GSA for more information. Comments: Public access denied and no
investigation are or will be available for
alternative method to gain access without
Land
compromising national security. inspection during official business
Montana Reasons: Secured Area hours (8:45 a.m. to 5:15 p.m.) in the
Canyon Ferry Reservoir Townsend Office of the Secretary, U.S.
Minnesota
Parcel III International Trade Commission, 500 E
Facility 206- Base Exchange Street SW., Washington, DC 20436,
99 Delger Road
4970 Airport Road
Townsend MT 59644 telephone (202) 205–2000. General
FMKM Duluth Air National Guard Base
Landholding Agency: GSA information concerning the Commission
Property Number: 54201710003 Duluth MN 55811
Landholding Agency: Air Force may also be obtained by accessing its
Status: Surplus Internet server at https://www.usitc.gov.
GSA Number: 7–D–MT–06377–AA Property Number: 18201710001
Status: Excess The public record for this investigation
Directions: Disposal Agency: GSA;
Landholding Agency: Interior Comments: Property within 2,000 ft. of may be viewed on the Commission’s
Comments: 59.01 acres; contact GSA for more flammable or explosive materials that are electronic docket (EDIS) at https://
information. located on Federal facility. edis.usitc.gov. Hearing-impaired
Reasons: Within 2000 ft. of flammable or persons are advised that information on
Canyon Ferry Reservoir explosive material
Townsend Parcel I this matter can be obtained by
Southwest Corner of Centerville Rd. & Mill Texas contacting the Commission’s TDD
Rd Geothermal Well & Electrical terminal on (202) 205–1810.
Townsend MT 59644 Power Generation Site SUPPLEMENTARY INFORMATION: The
Landholding Agency: GSA Naval Air Station
Property Number: 54201710004 Commission instituted this investigation
Corpus Christi TX
Status: Surplus Landholding Agency: Navy
on November 20, 2015, based on a
GSA Number: 7–D–MT–06377–AA Property Number: 77201710003 complaint filed by Select Comfort
Directions: Disposal Agency: GSA; Status: Excess Corporation of Minneapolis, Minnesota
Landholding Agency: Interior Comments: Public access denied and no and Select Comfort SC Corporation of
Comments: 10.54 acres; contact GSA for more alternative method to gain access without Greenville, South Carolina (collectively,
information. compromising national security; property ‘‘Select Comfort,’’ or ‘‘Complainants’’).
Canyon Ferry Reservoir Townsend located within floodway which has not 80 FR 72738 (Nov. 20, 2015). The
Parcel II been correct of contained.
96 Canton Lane
complaint alleges violations of section
Reasons: Secured Area; Floodway 337 of the Tariff Act of 1930, as
Townsend MT 59644
[FR Doc. 2017–01545 Filed 1–26–17; 8:45 am] amended, 19 U.S.C. 1337, in the
Landholding Agency: GSA
Property Number: 54201710005 BILLING CODE 4210–67–P importation into the United States, the
Status: Surplus sale for importation, and the sale within
GSA Number: 7–D–MT–0637–AA the United States after importation of
Directions: Disposal Agency: GSA; INTERNATIONAL TRADE certain air mattress systems,
Landholding Agency: Interior COMMISSION components thereof, and methods of
Comments: 89.1 acres; contact GSA for more using the same by reason of
information. [Investigation No. 337–TA–971]
infringement of certain claims of U.S.
Virginia Patent Nos. 5,904,172 (‘‘the ‘172
Certain Air Mattress Systems,
IAD Centreville Outer Marker Components Thereof, and Methods of patent’’) and 7,389,554 (‘‘the ‘554
14201 Braddock Road patent’’). Id. The notice of investigation
Centreville VA 20120
Using the Same Commission
Determination To Review in Part a names as respondents Sizewise Rentals
Landholding Agency: GSA LLC of Kansas City, Missouri; American
Property Number: 54201710007 Final Initial Determination; Schedule
Status: Excess for Filing Written Submissions on the National Manufacturing Inc. of Corona,
GSA Number: VA–1166–AA Issues Under Review and on Remedy, California; and Dires LLC and Dires LLC
Comments: .26 acres/11,325.60 sq. ft.; contact the Public Interest, and Bonding d/b/a Personal Comfort Beds of Orlando,
GSA for more information. Florida (collectively, ‘‘Respondents’’).
AGENCY: U.S. International Trade Id. The Office of Unfair Import
Unsuitable Properties Commission. Investigations (‘‘OUII’’) was also named
Building ACTION: Notice. as a party to the investigation. Id.
Hawaii Pursuant to Commission Rule
SUMMARY: Notice is hereby given that 210.50(b)(1), 19 CFR 210.50(b)(1), the
2 Buildings
Marine Corps Base Hawaii, Kaneohe Bay the U.S. International Trade Commission ordered that the presiding
Kaneohe Bay HI 96863 Commission (‘‘the Commission’’) has ALJ:
Landholding Agency: Navy determined to review in part the final [S]hall take evidence or other information
Property Number: 77201710002 initial determination (‘‘ID’’) issued by and hear arguments from the parties and
Status: Excess the presiding administrative law judge other interested persons with respect to the
Directions: (‘‘ALJ’’) finding no violation of section public interest in this investigation, as
Building 3026 & 3027 337 of the Tariff Act of 1930, as appropriate, and provide the Commission
jstallworth on DSK7TPTVN1PROD with NOTICES

Comments: Public access denied and no amended (‘‘section 337’’), in the above- with findings of fact and a recommended
alternative method to gain access without determination on this issue, which shall be
referenced investigation on November
compromising national security. limited to the statutory public interest factors
Reasons: Secured Area 18, 2016.
set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1).
Pacific Missile Range Facility FOR FURTHER INFORMATION CONTACT:
Barking Sands Michael Liberman, Esq., Office of the 80 FR 72738 (Nov. 20, 2015).
South of Tarter Dr. & E of Nohili Road General Counsel, U.S. International The evidentiary hearing on the
Kauai HI Trade Commission, 500 E Street SW., question of violation of section 337 was

VerDate Sep<11>2014 13:58 Jan 26, 2017 Jkt 241001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\27JAN1.SGM 27JAN1

8624 Federal Register / Vol. 82, No. 17 / Friday, January 27, 2017 / Notices

held August 8–12, 2016. The final ID on (5) to review the ID’s finding that claim 16 because Select Comfort did not establish
violation was issued on November 18, of the ‘554 patent is not infringed because that the accused products practice the
2016. The ALJ issued his recommended Complainants did not establish that the ‘air posturizing sleep surface’
accused products practice the ‘‘air limitation.’’ ID at 70.
determination on remedy, the public
posturizing sleep surface’’ limitation;
interest and bonding on the same day. (6) to review the ID’s finding that the ‘554 a. Does the record show that the
The ALJ found no violation of section Domestic Industry Products do not practice accused products infringe the ‘‘air
337 in this investigation. The ALJ the ‘554 patent; posturizing sleep surface’’ limitation of
recommended that if the Commission (7) to review the ID’s finding that claim 16 of the ‘554 patent?
finds a violation of section 337 in the Complainants did not satisfy the economic 5. Does the record show that the ‘554
present investigation, the Commission prong of the domestic industry requirement Domestic Industry Products practice the
issue a limited exclusion order (‘‘LEO’’) with respect to both the ‘172 and ‘554 ‘554 patent?
prohibiting the importation of patents. 6. The ID finds that: ‘‘Claim 16, like
The Commission has determined not to
Respondents’ air controllers and air claim 1, includes the term ‘air
review the remainder of the ID.
mattress systems found to infringe the posturizing sleep surface.’ For the
asserted patents. The ALJ also The parties are requested to brief their reasons stated above in the discussion of
recommended the inclusion of a positions on only the following issues, claim 1, the ‘554 DI products do not
provision for the ‘554 patent, whereby with reference to the applicable law and practice claim 16 because they do not
Respondents certify that certain imports the evidentiary record: meet the ‘air posturizing sleep surface’
are not covered by the LEO because they 1. The ID finds that: ‘‘Because Select limitation.’’ ID at 75.
contain components for use in non- Comfort asserts that guides and stops of a. Does the record show that the ‘554
infringing products. the P5000, P6000, and Arco products DI products practice the ‘‘air posturizing
The ALJ did not recommend that the are screws and screw bores, the sleep surface’’ limitation of claim 16 of
Commission issue a cease and desist undersigned finds that Select Comfort the ‘554 patent?
order in this investigation. The ALJ has failed to establish that these 7. With respect to Complainants’
further recommended a zero bond products meet this limitation.’’ ID at 27. investment in plant and equipment
during the period of Presidential review. a. Does the record support a finding
alleged under 19 U.S.C. 1337(a)(3)(A)
All parties to this investigation filed that ‘‘Select Comfort asserts that guides
the ID finds that:
timely petitions for review of various and stops of the P5000, P6000, and Arco
portions of the final ID, as well as timely products are screws and screw bores?’’ While the Commission has stated that a
b. Does the record show that P5000, precise allocation of expenses among various
responses to the petitions. DI products is not necessary, that precedent
On December 19, 2016, both P6000, and Arco products meet the
cannot mean that Select Comfort’s proposed
Complainants and Respondents filed guides and stops limitation in claims 2
allocation is acceptable; i.e., allocating 100%
their respective Public Interest and 12 of the ‘172 patent? of the rental expenses to the ‘172 patent, and
Statement pursuant to 19 CFR 2. The ID finds that because then a portion of those same expenses to the
210.50(a)(4). Responses from public Complainants did not establish that the ‘554 patent DI products. Accordingly, Select
were likewise received by the ‘172 Accused Products continuously Comfort has not shown a domestic industry
Commission pursuant to notice. See monitor pressure using a processor in for either the ‘172 patent or the ‘554 patent
Notice of Request for Statements on the conjunction with the transducer, the based upon 19 U.S.C. 1337(a)(3)(A).
Public Interest (Nov. 29, 2016). ‘172 Accused Products do not meet ID at 89–90.
Having examined the record in this claim limitation ‘‘and pressure monitor
means being operably coupled to the a. Do Commission and judicial
investigation, including the final ID, the precedents and the record in the present
petitions for review, and the responses processor and being in fluid
communications with the at least one investigation support the ID’s finding?
thereto, the Commission has determined
bladder for continuously monitoring the b. Please explain with citation to the
to review the final ID in part. In
pressure in the at least one bladder.’’ ID record what portion of the asserted
particular, the Commission has
at 32; see id. at 29–32. domestic investment in plant and
determined as follows:
a. To the extent not already briefed to equipment, in terms of the dollar
(1) To review the ID’s findings that the amount and percentage, can be allocated
P5000, P6000, and Arco products do not
the Commission, please discuss whether
the record supports the ID’s finding to the articles that practice the ‘172
meet ‘‘guides and stops’’ limitation in claim
(with supporting citations to the record patent.
2 of the ‘172 patent, and that these products
do not meet the same claim limitation in evidence). c. Does the record show that
claim 12 of the ‘172 patent and for that 3. The ID finds that: ‘‘Claim 9, like Complainants’ investment in plant and
reason do not infringe that claim; claim 2, includes the term ‘continuously equipment under 19 U.S.C.
(2) to review the ID’s finding that the ‘172 monitoring.’ For the reasons stated 1337(a)(3)(A) is significant with respect
Accused Products do not meet claim above in the discussion of claim 2, to the articles that practice the ‘172
limitation ‘‘pressure monitor means being patent?
operably coupled to the processor and being
claim 9 is not infringed because Select
Comfort did not establish that the ‘172 d. Please explain with citation to the
in fluid communications with the at least one
bladder for continuously monitoring the Accused Products ‘continuously record what portion of the asserted
pressure in the at least one bladder’’ in monitor’ pressure.’’ ID at 32. domestic investment in plant and
claims 2, 6, 20, 22, and 24 of the ‘172 patent; a. Does the record show that claim 9 equipment, in terms of the dollar
(3) to review the ID’s finding that the ‘172 of the ‘172 patent is not infringed amount and percentage, can be allocated
Accused Products do not infringe claim 9 of to the articles that practice the ‘554
jstallworth on DSK7TPTVN1PROD with NOTICES

because Select Comfort did not establish
the ‘172 patent; that the ‘172 Accused Products patent.
(4) to review, in part, the ID’s analysis e. Does the record show that
‘‘continuously monitor’’ pressure?
regarding whether the ‘172 Accused Products
infringe claim 2 of the ‘172 patent for the
4. The ID finds that: ‘‘Claim 16, like Complainants’ investment in plant and
limited purpose of taking no position on the claim 1, includes the term ‘air equipment under 19 U.S.C.
ALJ’s discussion in the last paragraph of page posturizing sleep surface.’ For the 1337(a)(3)(A) is significant with respect
20 and in the first paragraph of page 21 of reasons stated above in the discussion of to the articles that practice the ‘554
the ID; claim 1, claim 16 is not infringed patent?

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Document Created: 2017-01-27 00:11:23
Document Modified: 2017-01-27 00:11:23

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 8623