83 FR 47188 - Certain Robotic Vacuum Cleaning Devices and Components Thereof Such as Spare Parts; Commission Determination To Review a Final Initial Determination in Part; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target Date

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 83, Issue 181 (September 18, 2018)

Notice is hereby given that the U.S. International Trade Commission has determined to review-in-part the presiding administrative law judge's final initial determination, finding a violation of section 337 of the Tariff Act of 1930, as amended with respect to U.S. Patent Nos. 8,600,553 and 9,038,233 and no violation with respect to U.S. Patent Nos. 6,809,490 and 8,474,090. The Commission has also determined to extend the target date for completion of the above-captioned investigation until November 20, 2018. The Commission requests certain briefing from the parties on the issues under review, as indicated in this notice. The Commission also requests briefing from the parties and interested persons on the issues of remedy, the public interest, and bonding.

[Federal Register Volume 83, Number 181 (Tuesday, September 18, 2018)]
[Notices]
[Pages 47188-47190]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-20189]


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

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1057]


Certain Robotic Vacuum Cleaning Devices and Components Thereof 
Such as Spare Parts; Commission Determination To Review a Final Initial 
Determination in Part; Schedule for Filing Written Submissions on the 
Issues Under Review and on Remedy, the Public Interest, and Bonding; 
Extension of the Target Date

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 the presiding 
administrative law judge's final initial determination, finding a 
violation of section 337 of the Tariff Act of 1930, as amended with 
respect to U.S. Patent Nos. 8,600,553 and 9,038,233 and no violation 
with respect to U.S. Patent Nos. 6,809,490 and 8,474,090. The 
Commission has also determined to extend the target date for completion 
of the above-captioned investigation until November 20, 2018. The 
Commission requests certain briefing from the parties on the issues 
under review, as indicated in this notice. The Commission also requests 
briefing from the parties and interested persons on the issues of 
remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Lucy Grace D. Noyola, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone 202-205-3438. 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 (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, on May 23, 2017, based on a complaint filed by iRobot Corporation 
of Bedford, Massachusetts (``iRobot''). 82 FR 23592 (May 23, 2017). The 
complaint alleges a violation of section 337 by reason of infringement 
of certain claims of U.S. Patent Nos. 6,809,490 (``the '490 patent''); 
7,155,308 (``the '308 patent''); 8,474,090 (``the '090 patent''); 
8,600,553 (``the '553 patent''); 9,038,233 (``the '233 patent''); and 
9,486,924 (``the '924 patent''). The complaint names as respondents 
Bissell Homecare, Inc. of Grand Rapids, Michigan (``Bissell''); Hoover, 
Inc. of Glenwillow, Ohio and Royal Appliance Manufacturing Co., Inc. d/
b/a TTI Floor Care North America, Inc. of Glenwillow, Ohio 
(collectively, ``Hoover''); bObsweep, Inc. of Toronto, Canada and 
bObsweep USA of Henderson, Nevada (collectively, ``bObsweep''); The 
Black & Decker Corporation of Towson, Maryland and Black & Decker 
(U.S.) Inc. of Towson, Maryland (collectively, ``Black & Decker''); 
Shenzhen ZhiYi Technology Co., Ltd., d/b/a iLife of Shenzhen, China 
(``iLife''); Matsutek Enterprises Co., Ltd. of Taipei City, Taiwan 
(``Matsutek''); Suzhou Real Power Electric Appliance Co., Ltd. of 
Suzhou, China (``Suzhou''); and Shenzhen Silver Star Intelligent 
Technology Co., Ltd. of Shenzhen, China (``SSSIT''). The Office of 
Unfair Import Investigations is not a party in this investigation.
    The investigation has been terminated with respect to respondents 
Suzhou, Black & Decker, Bissell, and Matsutek. Notice (Oct. 18, 2017) 
(determining not to review Order No. 23 (Sept. 26, 2017)); Notice (Jan. 
31, 2018) (determining not to review Order No. 31 (Jan. 9, 2018)); 
Notice (Feb. 16, 2018) (determining not to review Order No. 34 (Jan. 
25, 2018)). The '924 and the '308 patents are also no longer part of 
the investigation. Notice (Jan. 16, 2018) (determining not to review 
Order No. 29 (Dec. 14, 2017)); Notice (Mar. 15, 2018) (determining not 
to review Order No. 40 (Feb. 21, 2018)).
    On July 16, 2018, the Commission determined that iRobot satisfied 
the economic prong of the domestic industry requirement under 19 U.S.C. 
1337(a)(3)(B). Notice (July 16, 2018) (determining to affirm with

[[Page 47189]]

modifications Order No. 39 (Feb. 13, 2018)).
    On June 25, 2018, the presiding administrative law judge (``ALJ'') 
issued a final initial determination (``ID''), finding a violation of 
section 337 with respect to the '553 and '233 patents and no violation 
with respect to the '490 and '090 patents. Specifically, with respect 
to the '553 patent, the ALJ found that: (1) iLife directly infringes 
claim 42, but not claims 1, 12, 13, and 22; (2) iLife has not induced 
or contributed to infringement of the patent; (3) iRobot has satisfied 
the technical prong of the domestic industry requirement; (4) claim 1, 
but not claims 11 and 12, is invalid for anticipation; and (5) claims 
4, 12, 13, and 22 are not invalid for obviousness. With respect to the 
'490 patent, the ALJ found that: (1) iLife and bObsweep directly 
infringe claim 42, but not claims 1 and 12, and Hoover directly 
infringes claim 42; (2) iLife, Hoover, bObsweep, and SSSIT have not 
induced or contributed to infringement of the patent; (3) iRobot has 
satisfied the technical prong of the domestic industry requirement; (4) 
claim 1, but not claim 12, is invalid for anticipation; (5) claims 12 
and 42 are invalid for obviousness; and (6) claims 1 and 42 are not 
invalid for indefiniteness. With respect to the '090 patent, the ALJ 
found that: (1) iLife, Hoover, SSSIT and bObsweep directly infringe 
claims 1, 2, 3, 5, 7, 10, and 17; (2) iLife, Hoover, bObsweep, and 
SSSIT have not induced or contributed to infringement of the patent; 
(3) iRobot has satisfied the technical prong of the domestic industry 
requirement; (4) claims 1, 5, 7, 10, and 17 are not invalid for 
anticipation; and (5) claims 1, 2, 3, 4, 5, 7, 10, and 17 are invalid 
for obviousness in view of certain prior art combinations, but not 
others. With respect to the '233 patent, the ALJ found that: (1) iLife 
and bObsweep directly infringe claims 1, 10, 11, 14, 15, and 16 and 
Hoover directly infringes the same claims with respect to the Hoover 
Quest 1000 products, but not the Hoover Rogue/Y1 and Hoover Y2 
products; (2) iLife, Hoover, bObsweep, and SSSIT have not induced or 
contributed to infringement of the patent; (3) iRobot has satisfied the 
technical prong of the domestic industry requirement; and (4) claims 1, 
10, 11, 14, 15, and 16 of the '233 patent are not invalid for 
anticipation, obviousness, nor lack of written description.
    The ALJ also issued a Recommended Determination on Remedy and Bond 
(``RD''), recommending, if the Commission finds a section 337 
violation, the issuance of (1) a limited exclusion order against 
certain robotic vacuum cleaning devices and components thereof that are 
imported, sold for importation, and/or sold after importation by 
Hoover, bObsweep, SSSIT, and iLife, (2) cease and desist orders against 
Hoover and iLife, and (3) imposition of a bond of 18.89 percent for 
iLife products, 48.65 percent for bObsweep products, and 41.35 percent 
for Hoover products that are imported during the period of Presidential 
review.
    On July 25, 2018, iRobot filed post-RD statements on the public 
interest under Commission Rule 210.50(a)(4). The Commission did not 
receive any post-RD public interest comments from Respondents pursuant 
to Commission Rule 210.50(a)(4). The Commission did not receive 
comments from the public in response to the Commission notice issued on 
July 10, 2018. 83 FR 31977 (July 10, 2018).
    On July 9, 2018, iRobot and Respondents each filed a petition for 
review challenging various findings in the final ID. On July 17, 2018, 
iRobot and Respondents each filed responses to the other party's 
petition for review.
    Having examined the record of this investigation, including the 
final ID, the Commission has determined to review in part the ALJ's 
determination of a section 337 violation. Specifically, the Commission 
has determined to review the ALJ's findings on: (1) Induced and 
contributory infringement with respect to the '553, '490, '090, and 
'233 patents; (2) anticipation with respect to the asserted claims of 
the '553 patent; (3) obviousness with respect to the asserted claims of 
the '553 patent; (4) direct infringement of the '090 patent by 
Respondents; (5) anticipation with respect to the asserted claims of 
the '090 patent; (6) obviousness with respect to the asserted claims of 
the '090 patent; (7) anticipation with respect to the asserted claims 
of the '233 patent; and (8) consideration of U.S. Patent No. 6,594,844 
as prior art under 35 U.S.C. 102(a) and concerning obviousness under 35 
U.S.C. 103.
    The Commission has determined not to review the remaining issues 
decided in the final ID.
    The Commission has also determined to extend the target date for 
completion of the investigation until November 20, 2018.
    In connection with its review, the Commission requests responses to 
the following questions. The parties are requested to brief their 
positions with reference to the applicable law and the existing 
evidentiary record.
    1. Before the ALJ, did Respondents assert invalidity of claims 1 
and 12 of the '553 patent under 35 U.S.C. 102(b) based on a theory that 
the invention was ``described in a printed publication'' or that the 
invention was ``in public use''? See ID at 57.
    2. What is the theory under section 102(b) (i.e., ``described in a 
printed publication'' or ``in public use'') addressed by the final ID 
to find claim 1 of the '553 patent invalid as anticipated by Suckmaster 
and to find claim 12 not invalid as anticipated by Suckmaster? See ID 
at 57-70.
    3. Assuming Respondents argued before the ALJ invalidity of claim 
12 of the '553 patent based on ``public use'' under section 102(b):
    a. Does there need to be a showing that the Suckmaster robot was 
used in public to practice the steps of claim 12 to find anticipation 
of that claim based on a public use theory?
    b. Does the record evidence show that the Suckmaster robot 
performed the steps of claim 12 during the Atlanta Hobby Robot Club 
Vacuum Contest?
    4. Describe the principle of operation of U.S. Patent No. 5,995,884 
(``Allen'') and discuss whether modifying Allen with a ``control 
module'' as required by the asserted claims of the '090 patent would 
change that principle of operation.
    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 a cease and desist order that could result in the respondents 
Hoover and iLife 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 Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (Dec. 1994), 
Comm'n Opinion.
    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 order 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

[[Page 47190]]

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: The parties to the investigation are requested 
to file written submissions on all of the issues identified in this 
notice. 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. Complainant is also requested to submit 
proposed remedial orders for the Commission's consideration. 
Complainant is also requested to state the date that the asserted 
patents expire and the HTSUS numbers under which the accused products 
are imported, and provide identification information for all known 
importers of the subject articles. Initial written submissions and 
proposed remedial orders must be filed no later than close of business 
on Monday, September 24, 2018. Reply submissions must be filed no later 
than the close of business on Monday, October 1, 2018. 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-1057) in a prominent 
place on the cover page and/or the first page. (See Handbook for 
Electronic Filing Procedures, https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.pdf). Persons with questions 
regarding filing should contact the Secretary at (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,\1\ solely for 
cybersecurity purposes. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary and on 
EDIS.
---------------------------------------------------------------------------

    \[1]\ All contract personnel will sign appropriate nondisclosure 
agreements.
---------------------------------------------------------------------------

    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: September 12, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-20189 Filed 9-17-18; 8:45 am]
BILLING CODE 7020-02-P