Certain Personal Transporters, Components Thereof, and Packaging and Manuals Therefor and Certain Personal Transporters and Components Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination; Schedule for Filing Written Submissions on Certain Issues Under Review and on Remedy, the Public Interest, and Bonding |
|---|
|
Jessica Mullan
International Trade Commission
19 October 2017
[Federal Register Volume 82, Number 201 (Thursday, October 19, 2017)]
[Notices]
[Pages 48724-48726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22652]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1007, Investigation No. 337-TA-1021
(Consolidated)]
Certain Personal Transporters, Components Thereof, and Packaging
and Manuals Therefor and Certain Personal Transporters and Components
Thereof; Notice of a Commission Determination To Review in Part a Final
Initial Determination; Schedule for Filing Written Submissions on
Certain 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 in part a violation of
section 337 of the Tariff Act of 1930, as amended, in the above-
referenced investigation on August 10, 2017. 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: 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 Inv. No. 337-TA-
1007, Certain Personal Transporters, Components Thereof, and Packaging
and Manuals Therefor under section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``section 337''), on June 24, 2016, based on a
complaint filed by Segway, Inc. of Bedford, New Hampshire (``Segway'');
DEKA Products Limited Partnership of Manchester, New Hampshire
(``DEKA''); and Ninebot (Tianjin) Technology Co., Ltd. of Tianjin,
China (``Ninebot'') (collectively, ``Complainants''). 81 FR 41342-43
(Jun. 24, 2016). The complaint alleges a violation of section 337 by
reason of infringement of certain claims of U.S. Patent Nos. 6,302,230
(``the '230 patent''); 6,651,763 (``the '763 patent''); 7,023,330
(``the '330 patent''); 7,275,607 (``the '607 patent''); 7,479,872
(``the '872 patent''); and 9,188,984 (``the '984 patent''); and U.S.
Trademark Registration Nos. 2,727,948 and 2,769,942. The named
respondents for Investigation No. 337-TA-1007 are Inventist, Inc. of
Camas, Washington; PhunkeeDuck, Inc. of Floral Park, New York; Razor
USA LLC of Cerritos, California; Swagway LLC of South Bend, Indiana
(``Swagway''); Segaway of Studio City, California; and Jetson Electric
Bikes LLC of New York, New York (``Jetson''). The Commission's Office
of Unfair Import Investigations (``OUII'') was also named as a party to
this investigation. 81 FR 41342 (Jun. 24, 2016).
On September 21, 2016, the Commission instituted Inv. No. 337-TA-
1021, Certain Personal Transporters and Components Thereof, based on a
complaint filed by the same Complainants. 81 FR 64936-37 (Sept. 21,
2016). The complaint alleges a violation of section 337 by reason of
infringement of certain claims of U.S. Patent Nos. 6,302,230 and
7,275,607. The named respondents for Investigation No. 337-TA-1021 are
Powerboard LLC of Scottsdale, Arizona (``Powerboard''); Metem Teknoloji
Sistemleri San of Istanbul, Turkey; Changzhou Airwheel Technology Co.,
Ltd. of Jiangsu, China (``Airwheel''); Airwheel of Amsterdam,
Netherlands; Nanjing Fastwheel Intelligent Technology Co., Ltd. of
Nanjing, China; Shenzhen Chenduoxing Electronic, Technology Ltd.,
China, a.k.a. C-Star of Shenzhen, China; Hangzhou Chic Intelligent
Technology Co., Ltd. of Hangzhou, China (``Chic''); Hovershop of
Placentia, California; Shenzhen Jomo Technology Co., Ltd., a.k.a.
Koowheel of Shenzhen City, China; Guanghzou Kebye Electronic Technology
Co., Ltd., a.k.a. Gotway of Shenzhen, China; and Inventist, Inc. of
Camas, Washington. OUII was also named as a party to this
investigation. 81 Fed. Reg. 64936 (Sept.
[[Page 48725]]
21, 2016). The Commission directed the presiding ALJ to consolidate
Inv. Nos. 337-TA-1007 and 337-TA-1021. See id. at 64937.
Subsequently, the Commission determined not to review an ID finding
respondents PhunkeeDuck, Inc. and Segaway in default. Order No. 9
(Sept. 1, 2016) (not reviewed Oct. 3, 2016). The Commission further
determined not to review an ID granting complainants' corrected motion
to amend the complaint and notice of investigation to assert the '763,
'330, and '872 patents against respondent Jetson Electric Bikes LLC,
and to terminate the investigation with respect to all asserted claims
of the '984 patent as to all respondents. Order No. 17 (Nov. 14, 2016)
(not reviewed Dec. 7, 2016). The Commission also determined not to
review an ID terminating the investigation as to respondent Nanjing
Fastwheel Intelligent Technology Co., Ltd. based on a Consent Order
Stipulation. Order No. 18 (Nov. 15, 2016) (not reviewed Dec. 7, 2016).
The Commission likewise determined not to review an ID granting a
motion to terminate the investigation as to the '763 patent. Order No.
19 (Dec. 16, 2016) (not reviewed Jan. 10, 2017). The Commission further
determined not to review an ID finding respondents Shenzhen Chenduoxing
Electronic, Technology Ltd., China, a.k.a. C-Star; Shenzhen Jomo
Technology Co., Ltd., a.k.a. Koowheel; Guanghzou Kebye Electronic
Technology Co., Ltd., a.k.a. Gotway; Metem Teknoloji Sistemleri San;
and Airwheel Netherlands in default. Order No. 22 (Jan. 9, 2017) (not
reviewed Feb. 7, 2017). The Commission also determined not to review an
ID terminating this investigation with respect to all asserted claims
of the `330 patent and the `872 patent as to all respondents. See Order
No. 24 (Jan. 10, 2017) (not reviewed Feb. 7, 2017).
Furthermore, the Commission determined to review an ID terminating
respondent Inventist, Inc. in this investigation based on a Consent
Order Stipulation and proposed Consent Order. Order No. 25 (Jan. 31,
2017) (Notice of Review issued Feb. 22, 2017 (``Notice of Review'')).
The Commission requested corrections to be made in the proposed Consent
Order. See Notice of Review at 2. The corrected Consent Order was filed
with the Commission on February 27, 2017. The Commission determined to
affirm Order No. 25, and terminated the investigation as to Inventist
and issued a Consent Order on October 12, 2017.
The Commission also determined not to review an ID to terminate
this investigation as to Razor USA, LLC based on a Settlement Agreement
and Release. Order No. 28 (Mar. 22, 2017) (not reviewed Apr. 24, 2017).
Also, the Commission determined not to review an ID granting
Complainants' motion for summary determination concerning the technical
prong of the domestic industry requirement with respect to the asserted
trademarks. Order No. 32 (Apr. 6, 2017) (not reviewed May 9, 2017).
Finally, the Commission determined not to review an ID granting
Complainants' motion to terminate the investigation as to respondent
Hovershop for good cause. See Order No. 34 (Apr. 13, 2017) (not
reviewed May 15, 2017).
As a result, the following two patents (and 13 claims) and two
trademarks remain at issue in this investigation: Claims 1, 3-5, and 7
of the `230 patent; claims 1-4 and 6 of the `607 patent; U.S. Trademark
Registration No. 2,727,948; and U.S. Trademark Registration No.
2,769,942. The following respondents participated in the evidentiary
hearing and remain in the investigation: Airwheel, Chic, Jetson,
Powerboard, and Swagway.
The evidentiary hearing on the question of violation of section 337
was held from April 18 through April 21, 2017. The final ID finding in
part a violation of section 337 was issued on August 10, 2017. The ALJ
issued his recommended determination on remedy, the public interest and
bonding on August 22, 2017. The ALJ recommended that if the Commission
finds a violation of section 337 in the present investigation, the
Commission should: (1) Issue a general exclusion order (``GEO'')
covering accused products found to infringe the asserted patents; (2)
issue a limited exclusion order (``LEO'') covering accused products
found to infringe the asserted patents if the Commission does not issue
a GEO; (3) issue an LEO covering accused products found to infringe the
asserted trademarks; (4) issue cease and desist orders; and (5) not
require a bond during the Presidential review period. RD at 1-2; 18. No
public interest statements were filed by the public in this
investigation.
All parties to this investigation that participated in the
evidentiary hearing (with the exception of respondent Powerboard) filed
timely petitions for review of various portions of the final ID. The
parties likewise filed timely responses to the petitions.
On September 11, 2017, Complainants filed a ``Request For
Acceptance of Memorandum Correcting Misstatements of the Record Found
In Respondents Chic's and Airwheel's Oppositions and OUII'S Response to
Complainant's Petition For Review'' (``Request''). The IA and
Respondents Chic and Airwheel filed timely responsive pleadings
opposing Complainants' Request. The Commission notes that no such
further briefing is normally permitted, and that in any event it can
resolve the relevant facts from the established record in this
Investigation without additional briefing from Complainants or any
other party in determining whether to review the final ID. Accordingly,
Complainants' Request is denied.
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 determination that the claim term ``maximum
operating velocity'' should be construed to mean ``a variable maximum
velocity where adequate acceleration potential is available to enable
balance and control of the vehicle,'' see ID at 44;
(2) to review the ID's determination that ``nothing in the plain
language of the disputed limitation [`the motorized drive arrangement
causing, when powered, automatically balanced operation of the system']
from claim 1 of the '230 patent requires the operation by a rider. The
claim only requires the `motorized drive arrangement causing, when
powered, automatically balanced operation of the system,' '' see ID at
82;
(3) to review the ID's infringement, validity, and domestic
industry (technical prong) determinations pertaining to the '230
patent;
(4) to review the instances in the ID that refer to a disclaimer of
``manual input'' with respect to the '607 patent. On review, the
Commission finds that this disclaimer is actually a disclaimer of
``manual input via joystick.'' The Commission notes that the ID uses
these terms interchangeably and determines not to review any other
portion of the ID's analysis or findings pertaining to this disclaimer.
The Commission's analysis on this issue will be provided in our
opinion, which will issue upon conclusion of the investigations;
(5) to review the ID's finding with respect to actual confusion
regarding the SWAGWAY mark, see ID at 171-72.
In addition, the Commission has determined to correct two
typographical errors: In the first line of the last paragraph on page
170 ``the Swagway `trademark'' is replaced with ``the Segway
`trademark''; and in the first line on page 171 ```Swagway''' is
replaced with ```Segway'''.
The Commission has determined not to review the remainder of the
ID.
[[Page 48726]]
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 determined with respect to the '230 patent that ``the
claim term `maximum operating velocity' should be construed to mean `a
variable maximum velocity where adequate acceleration potential is
available to enable balance and control of the vehicle.' '' ID at 44.
a. Does intrinsic evidence support the ID's above determination?
b. Does extrinsic evidence support the ID's above determination?
2. The ID determined with respect to the `230 patent that ``nothing
in the plain language of the disputed limitation [`the motorized drive
arrangement causing, when powered, automatically balanced operation of
the system'] from claim 1 of the `230 patent requires the operation by
a rider. The claim only requires the `motorized drive arrangement
causing, when powered, automatically balanced operation of the system.'
'' ID at 82.
a. Does intrinsic evidence support the ID's above determination?
b. Does extrinsic evidence support the ID's above determination?
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
respondents 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, including against
the defaulted respondents. 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 August 22, 2017,
by the ALJ and the appropriate remedy for the respondents previously
found in default. Complainants and the Commission investigative
attorney are also requested to submit proposed remedial orders for the
Commission's consideration.
Complainants are further requested to provide the expiration date
of the `230 patent, 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 October 30, 2017. Reply submissions must
be filed no later than the close of business on November 6, 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-1007,' `Investigation No.
337-TA-1021' (Consolidated))'' 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: October 13, 2017.
Jessica Mullan,
Attorney Advisor.
[FR Doc. 2017-22652 Filed 10-18-17; 8:45 am]
BILLING CODE 7020-02-P