|
|---|
|
Certain Portable Battery Jump Starters and Components Thereof; Notice of Commission Determination Not To Review a Final Initial Determination of Violation of Section 337 With Respect to Two Trademarks, and To Review and, on Review, Affirm a Finding of Violation With Respect to a Patent; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding Publication: Federal Register Signing Official: Katherine Hiner Agency: International Trade Commission Date: 7 July 2022 
|
[Federal Register Volume 87, Number 129 (Thursday, July 7, 2022)]
[Notices]
[Pages 40548-40551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14407]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1256]
Certain Portable Battery Jump Starters and Components Thereof;
Notice of Commission Determination Not To Review a Final Initial
Determination of Violation of Section 337 With Respect to Two
Trademarks, and To Review and, on Review, Affirm a Finding of Violation
With Respect to a Patent; Schedule for Filing Written Submissions 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 has determined not to review a final initial determination
(``Final ID'') issued by the presiding administrative law judge
(``ALJ'') finding a violation of section 337 of the Tariff Act of 1930,
with respect to U.S. Trademark Registration Nos. 4,811,656 (``the '656
mark'') and 4,811,749 (``the '749 mark'') by defaulting respondent
Zhejiang Quingyou Electronic Commerce Co., Ltd. (``Zhejiang Quingyou'')
and with respect to the '749 mark by defaulting respondent Shenzhen
Mediatek Tong Technology Co., Ltd. (``Mediatek''). The Commission has
further determined to review in part and, on review, affirm a finding
of no violation with respect to U.S. Patent No. 10,604,024 (``the '024
patent'') based on the complainant's failure to satisfy the technical
prong of the domestic industry requirement. The Commission requests
briefing from the parties, interested government agencies, and
interested persons on the issues of remedy, the public interest, and
bonding based on the schedule set forth below.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
EDIS3Help@usitc.gov. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.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: On March 23, 2021, the Commission instituted
this investigation based on a complaint filed on behalf of The NOCO
Company of Glenwillow, Ohio (``NOCO''). 86 FR 15496-98 (Mar. 23, 2021).
The complaint, as supplemented and amended, alleges a violation of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337''), in the importation into the United States, the sale
for importation, and the sale within the United States after
importation of certain portable battery jump starters and components
thereof by reason of infringement of one or more of claims 1, 4, 11,
14, 18, 19, and 21 of U.S. Patent No. 9,007,015 (``the '015 patent'')
and claims 1, 4-6, 16, 19, 23, 24, 26, 29, and 30 of the '024 patent,
and infringement of the '656 and '749 marks. Id. at 15497.
The notice of investigation named the following respondents: (1)
Advance Auto Parts, Inc. of Raleigh, North Carolina; (2) Anker
Technology (UK) Ltd. of Birmingham, United Kingdom; (3) Antigravity
Batteries LLC of Gardena, California; (4) Arteck Electronic Co., Ltd.
of Shenzhen, China; (5) AutoZone, Inc. of Memphis, Tennessee; (6) Best
Buy Co., Inc. of South Richfield, Minnesota; (7) Best Parts, Inc. of
Memphis, Tennessee; (8) Clore Automotive, LLC of Lenexa, Kansas; (9)
Deltran USA, LLC of DeLand, Florida; (10) Energen, Inc. of City of
Industry, California; (11) FlyLink Tech Co., Ltd. of Shenzhen, China;
(12) Gooloo Technologies LLC and Shenzhen Gooloo E-Commerce Co., Ltd of
Shenzhen, China; (13) Great Neck Saw Manufacturers, Inc. of Mineola,
New York; (14) Guangdong Boltpower Energy Co., Ltd of Shenzhen City,
China; (15) Halo2Cloud, LLC of Hartford, Connecticut; (16) Horizon
Tool, Inc. of Greensboro, North Carolina; (17) K-Tool International of
Plymouth, Michigan; (18) Lowe's Companies, Inc. of Mooresville, North
Carolina; (19) Matco Tools Corporation of Stow, Ohio; (20) MonoPrice,
Inc. of Brea, California; (21) National Automotive Parts Association,
LLC (d/b/a NAPA) of Atlanta, Georgia; (22) Nekteck, Inc. of Anaheim,
California; (23) O'Reilly Automotive, Inc. of Springfield, Missouri;
(24) Paris Corporation of Westampton, New Jersey; (25) PowerMax Battery
(U.S.A.), Inc. of Ontario, California; (26) Prime Global Products, Inc.
of Ball Ground, Georgia; (27) QVC, Inc. of West Chester, Pennsylvania;
(28) Schumacher Power Technology Ltd. of Yancheng, China; (29)
Schumacher Electric Corp. of Mount Prospect, Illinois; (30) Shenzhen
Carku Technology Co., Ltd. of
[[Page 40549]]
Shenzhen, China; (31) Shenzhen Dingjiang Technology Co., Ltd. of
Shenzhen, China; (32) Shenzhen Jieruijia Technology Co. Ltd. of Gong
Ming, China; (33) Shenzhen Mediatek Tong Technology Co., Ltd. of
Shenzhen, China; (34) Shenzhen Take Tools Co., Ltd. of Shenzhen, China;
(35) Shenzhen Topdon Technology Co., Ltd. of Shenzhen, China; (36)
Shenzhen Valuelink E-Commerce Co., Ltd. of Shenzhen, China; (37)
Smartech Products, Inc. of Savage, Maryland; (38) ThiEYE Technologies
Co., Ltd. of Longgang, China; (39) Tii Trading Inc. of Baldwin Park,
California; (40) Walmart Inc. of Bentonville, Arkansas; (41) Winplus
North America, Inc. of Costa Mesa, California; (42) Zagg Co. Rrd Gst of
Plainfield, Indiana; (43) Zhejiang Quingyou Electronic Commerce Co.,
Ltd. of Hangzhou, China; and (44) 70mai Co., Ltd. of Shanghai, China.
Id. at 15497-98. The Office of Unfair Import Investigations is a party
to the investigation. Id. at 15498.
The Commission permitted NOCO to amend the amended complaint and
notice of investigation to make the following changes: (1) to
substitute Lowe's Home Centers, LLC, for Lowe's Companies, Inc.; (2) to
substitute O'Reilly Automotive Stores, Inc., O'Reilly Auto Enterprises,
LLC, and Ozark Purchasing, LLC, for O'Reilly Automotive, Inc.; (3) to
substitute Anker Innovations Ltd. (HK) for Anker Technology (UK) Ltd.;
(4) to substitute ZAGG Inc. for Zagg Co. Rrd; (5) to substitute
Shenzhen Dingjiang Technology Co., Ltd. (d/b/a Shenzhen Topdon
Technology Co., Ltd. and Topdon Technology Co., Ltd.) for Shenzhen
Dingjiang Technology Co., Ltd., and Shenzhen Topdon Technology Co.,
Ltd.; and (6) to add additional respondents related to Winplus North
America, Inc.--ADC Solutions Auto, LLC d/b/a/Type-S and Winplus NA,
LLC. Order No. 13 (Apr. 23, 2021), unreviewed by Comm'n Notice (May 18,
2021).
The Commission subsequently terminated the investigation with
respect to National Automotive Parts Association, LLC (d/b/a NAPA),
Shenzhen Jieruijia Technology Co., Ltd., and Shenzhen Take Tools Co.,
Ltd. based on a voluntary withdrawal of the complaint. Order No. 9
(Apr. 13, 2021), unreviewed by Comm'n Notice (May 12, 2021); Order No.
47 (Dec. 6, 2021), unreviewed by Comm'n Notice (Jan. 4, 2022). The
Commission also subsequently terminated the investigation based on a
settlement agreement with respect to the following respondents: Advance
Auto Parts, Inc.; Lowe's Home Centers, LLC; Ozark Purchasing, LLC;
O'Reilly Automotive Stores, Inc.; O'Reilly Auto Enterprises, LLC;
Shenzhen Dingjiang Technology Co., Ltd. (d/b/a Shenzhen Topdon
Technology Co., Ltd. and Topdon Technology Co., Ltd.); Walmart, Inc.;
QVC, Inc.; AutoZone, Inc.; and Best Parts, Inc. Order No. 11 (Apr. 19,
2021), unreviewed by Comm'n Notice (May 4, 2021); Order No. 14 (Apr.
23, 2021), unreviewed by Comm'n Notice (May 18, 2021); Order No. 21
(Jul. 7, 2021), unreviewed by Comm'n Notice (Jul. 26, 2021); Order No.
31 (Sept. 20, 2021), unreviewed by Comm'n Notice (Oct. 12, 2021); Order
No. 35 (Oct. 20, 2021), unreviewed by Comm'n Notice (Nov. 22, 2021);
Order No. 44 (Nov. 15, 2021), unreviewed by Comm'n Notice (Dec. 6,
2021). Finally, the Commission terminated the investigation with
respect to Schumacher Electric Corp. and Schumacher Power Technology
Ltd. based on a consent order stipulation and entry of a consent order.
Order No. 52 (Jan. 12, 2022), unreviewed by Comm'n Notice (Feb. 4,
2022).
The Commission found several respondents in default for failing to
respond to the complaint, notice of investigation, and order to show
cause why they should not be found in default. The defaulting
respondents include the following: Energen, Inc.; FlyLink Tech Co.,
Ltd.; K-Tool International; MonoPrice, Inc.; Prime Global Products,
Inc.; Mediatek; Shenzhen Valuelink E-Commerce Co., Ltd.; ThiEYE
Technologies Co., Ltd; Tii Trading Inc.; Zhejiang Quingyou; and Arteck
Electronics Co., Ltd. Order No. 23 (Jul. 13, 2021), unreviewed by
Comm'n Notice (Jul. 30, 2021); Order No. 45 (Nov. 16, 2021), unreviewed
by Comm'n Notice (Dec. 10, 2021). The Commission also found Smartech
Products, Inc. in default based on its voluntary default. Order No. 28
(Aug. 9, 2021), unreviewed by Comm'n Notice (Aug. 20, 2021).
Accordingly, at the time of the evidentiary hearing, the following
respondents remained active in the investigation: Antigravity Batteries
LLC, Gooloo Technology LLC and Shenzhen Gooloo E-Commerce Co., Ltd.,
Horizon Tool, Inc., Nekteck, Inc., PowerMax Battery (U.S.A.), Inc.,
Shenzhen Carku Technology Co., Ltd., 70mai Co., Ltd., Matco Tools
Corporation, Paris Corporation, and Great Neck Saw Manufacturers, Inc.
(collectively, the ``Carku respondents''); Guangdong Boltpower Energy
Co., Ltd. and Best Buy Co., Inc. (collectively, the ``Boltpower
respondents''); and Winplus North America, Inc., Winplus NA, LLC, and
ADC Solutions Auto, LLC d/b/a Type S (collectively, the ``Winplus
respondents'').
The Commission also subsequently terminated the investigation with
respect to claims 4, 14, 18, and 21 of the '015 patent and claims 4, 5,
6, 19, 23, and 26 of the '024 patent based on NOCO's partial withdrawal
of the complaint. Order No. 27 (Aug. 6, 2021), unreviewed by Comm'n
Notice (Aug. 18, 2021). The Commission later terminated the
investigation with respect to the '015 patent in its entirety. Order
No. 46 (Dec. 6, 2021), unreviewed by Comm'n Notice (Jan. 4, 2022).
Accordingly, at the time of the evidentiary hearing, the '656 mark,
the '749 mark, and claims 1, 16, 24, 29, and 30 of the '024 patent
remained asserted in the investigation. Specifically, NOCO asserted the
following: claims 1, 16, 24, 29, and 30 of the '024 patent against the
Carku respondents; claims 1, 16, 24, 29, and 30 against the Boltpower
respondents; claims 1, 16, 29, and 30 against the Winplus respondents;
and claims 1, 29, and 30 against ten of the twelve defaulting
respondents. Final ID at 8-9. NOCO also accused defaulting respondent
Mediatek of infringing the '749 mark and defaulting respondent Zhejiang
Quingyou of infringing the '749 mark and the '656 mark. Id. at 338.
NOCO's post-hearing brief omits infringement allegations against
defaulting respondents FlyLink Tech Co., Ltd. and Arteck Electronics
Co., Ltd. See CIB at 71-72, 183; Final ID at 8-9, 338.
The ALJ issued a Markman Order on November 5, 2021. Order No. 41
(Nov. 5, 2021) (``Markman Order''). The ALJ held an evidentiary hearing
on January 11-14, 2022.
On April 29, 2022, the ALJ issued the Final ID finding a violation
with respect to the '749 mark by defaulting respondent Mediatek and
with respect to the '656 and '749 marks by defaulting respondent
Zhejiang Quingyou, and finding no violation with respect to the '024
patent. Specifically, with respect to the '024 patent, the ID finds
that NOCO showed that the products of the Boltpower respondents and the
ten defaulting respondents infringe the asserted claims of the '024
patent, but that NOCO failed to show that the products of the Carku
respondents and Winplus respondents infringe the asserted claims. The
ID further finds that no asserted claim of the '024 patent was shown to
be invalid or unenforceable. Additionally, the ID finds that NOCO
satisfied the economic prong of the domestic industry requirement but
failed to satisfy the technical prong of the domestic industry
requirement as to the '024 patent.
[[Page 40550]]
The ALJ's recommended determination on remedy and bonding
recommended that if the Commission finds a violation of section 337
with respect to the '024 patent, then the Commission should issue a GEO
with respect to the '024 patent and CDOs against all respondents shown
to maintain commercially significant amounts of domestic inventory--
Winplus, Carku, Antigravity, the Gooloo respondents, Great Neck, Matco
Tools, Nekteck, PowerMax, 70Mai, Horizon Tool, Paris Corporation,
Boltpower, and BestBuy. The ALJ also recommends that the Commission
issue an LEO against Mediatek regarding the '749 mark, and against
Zhejiang Quingyou regarding the '749 mark and the '656 mark. The ALJ
finally recommends that the Commission set the bond rate at 100 percent
of entered value based on the difficulty of setting the bond based on a
price differential due to the large number of respondents and the lack
of evidence of a reasonably royalty rate.
The Commission did not receive any submissions regarding the ALJ's
recommended determination pursuant to the Commission's post RD-notice
(87 FR 29177-78 (May 12, 2022)) or Commission Rule 210.50(a)(4) (19 CFR
210.50(a)(4)).
On May 13, 2022, NOCO filed a petition with respect to the '024
patent, seeking review of certain of the Final ID's findings on the
technical prong of the domestic industry requirement and infringement
and seeking contingent review of certain of the Final ID's findings on
invalidity. That same day, Boltpower filed a petition seeking review of
certain of the ALJ's and ID's findings on claim construction and
infringement with respect to the '024 patent. Also on May 13, 2022, the
Carku and Winplus respondents filed a joint contingent petition with
respect to the '024 patent, seeking review of the Final ID on numerous
issues related to infringement, invalidity, the technical prong of the
domestic industry requirement, and the economic prong of the domestic
industry requirement. No petitions were filed concerning the Final ID's
findings with respect to the asserted trademarks. On May 23, 2022, the
parties and OUII filed responses to each other's petitions.
Having examined the record of this investigation, including the
ALJ's Final ID, the petitions for review, and the responses thereto,
the Commission determined not to review the Final ID's finding of a
violation of section 337 respect to the '656 mark and the '749 mark by
defaulting respondent Zhejiang Quingyou and with respect to the '749
mark by defaulting respondent Mediatek. The Commission presumes that
the allegations in the second amended complaint against Zhejiang
Quingyou and Mediatek are true with respect to the '656 and '749 marks
based on those respondents' defaults, including the allegations
regarding the satisfaction of the economic prong of the domestic
industry requirement against those respondents. 19 U.S.C. 1337(g)(1).
The Commission has determined to review in part the Final ID's
finding of no violation of section 337 with respect to the '024 patent
and, on review to affirm the Final ID's finding of no violation due to
NOCO's failure to satisfy the technical prong of the domestic industry
requirement. The Commission further has determined to take no position
on the Final ID's findings that: (1) the accused Boltpower Schumacher
SL1315 satisfies the limitation ``the reverse polarity sensor
configured . . . to provide an output signal indicating that the
positive and negative polarity terminals of the vehicle battery are
properly connected to the positive and negative polarity vehicle
battery connectors'' recited in the asserted claims of the '024 patent;
(2) any accused product or domestic industry product satisfies the
limitation ``a power switch connected between the power supply and the
positive and negative polarity vehicle battery terminal connectors''
recited in the asserted claims of the '024 patent; (3) the Winplus
products satisfy the ``turn off'' limitation recited in the asserted
claims of the '024 patent; (4) claims 1 and 29 of the '024 patent are
not invalid for a lack of written description; (5) claims 1, 24, 29,
and 30 of the '024 patent are not rendered invalid as obvious by U.S.
Patent Application Publication No. US 2013-0154543 (``Richardson'')
(RX-0049); (6) claim 16 of the '024 patent is not rendered obvious by
Richardson in view of Chinese Pat. App. No. TW M417714U1 (``Luo'') (RX-
0048); (7) claim 16 of the '024 patent is not rendered obvious by
Richardson in view of the asserted prior art E-Power 10 device (RPX-
0047); (8) U.S. Patent No. 7,345,450 (``Krieger'') (RX-0047) does not
anticipate claims 1, 29, and 30 of the '024 patent; does not render
obvious claim 16; (9) claim 16 of the '024 patent is not rendered
obvious by Krieger in view of Luo or the E-power 10 device; (10) claim
16 of the '024 patent is not rendered obvious by Krieger in view of
Richardson; (11) the asserted domestic industry products satisfy the
``power switch'' limitation recited in the asserted claims of the '024
patent; and (12) NOCO has satisfied the economic prong of the domestic
industry requirement. Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423
(Fed. Cir. 1984). The Commission has determined not to review the
remainder of the Final ID with respect to the '024 patent.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States, and/or (2) 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. 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, Comm'n Op.
at 7-10 (December 1994).
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or a 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 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,
disapprove, or take no action on the Commission's determination. 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.
[[Page 40551]]
Written Submissions: 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 initial submissions should include views on the
recommended determination by the ALJ on remedy and bonding, which
issued on April 29, 2022.
The Commission further requests that NOCO submit proposed remedial
orders, provide the HTSUS numbers under which the subject articles are
imported, and supply a list of known importers of the subject article
with its initial written submission. The written submissions, exclusive
of any exhibits, must not exceed 10 pages, and must be filed no later
than close of business on July 14, 2022. Reply submissions must not
exceed 10 pages and must be filed no later than the close of business
on July 21, 2021. 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. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1256) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.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 by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. A redacted
non-confidential version of the document must also be filed
simultaneously with any confidential filing. 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 nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on June 30,
2022.
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: June 30, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-14407 Filed 7-6-22; 8:45 am]
BILLING CODE 7020-02-P