Certain Replacement Automotive Lamps; Notice of Commission Determination To Review a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submission on Remedy, the Public Interest, and Bonding; Extension of the Target Date

Certain Replacement Automotive Lamps; Notice of Commission Determination To Review a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submission on Remedy, the Public Interest, and Bonding; Extension of the Target Date

Publication: Federal Register
Agency: International Trade Commission
Byline: Katherine Hiner
Date: 17 May 2023
Subject: American Government

Topic: Kia

[Federal Register Volume 88, Number 95 (Wednesday, May 17, 2023)]
[Notices]
[Pages 31520-31522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10477]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1291]

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part 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. The Commission requests briefing from the parties on the issues
under review and from the parties, interested government agencies, and
interested persons on remedy, the public interest, and bonding based on
the schedule set forth below. The Commission has also determined to
extend the target date for the completion of the above-captioned
investigation to September 26, 2023.

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 http://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 (http://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 January 24, 2022, the Commission
instituted this investigation under section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on a
complaint filed on behalf of complainants Kia Corporation of Seoul,
Korea and Kia America, Inc. of Irvine, California (collectively,
``Kia''). 87 FR 3584-85 (Jan. 24, 2022). The complaint, as supplemented
and amended, alleges a violation of section 337 in the importation into
the United States, the sale for importation, and the sale after
importation within the United States after importation of certain
replacement automotive lamps by reason of infringement of U.S. Design
Patent Nos. D592,773; D635,701; D636,506; D650,931; D695,933; D705,963;
D709,218; D714,975; D714,976; D720,871; D749,757; D749,762; D749,764;
D774,222; D774,223; D776,311; D781,471; D785,833; D785,836; and
D792,989. Id. at 3584. The notice of investigation names as respondents
TYC Brother Industrial Co., Ltd. of Tainan, Taiwan; Genera Corporation
(dba TYC Genera) of Brea, California; LKQ Corporation of Chicago,
Illinois; and Keystone Automotive Industries, Inc. of Exeter,
Pennsylvania (together, ``Respondents''). The Office of Unfair Import
Investigations is not participating in this investigation.
On February 7, 2022, the Chief ALJ (``CALJ'') ordered an
evidentiary hearing for both Inv. Nos. 337-TA-1291 and 337-TA-1292 on
the economic prong pursuant to the Commission's pilot program for
interim initial determinations (``IID''). Order No. 6 (Feb. 7, 2022).
The combined evidentiary hearing was held on April 20, 2022. On July 1,
2022, the CALJ issued an IID finding that Kia has satisfied the
economic prong of the domestic industry requirement with respect to all
of the asserted design patents. On August 24, 2022, the Commission
determined to review the IID. The investigation was reassigned to the
presiding ALJ on July 6, 2022.
On January 24, 2023, the ALJ issued the Final ID finding a
violation of section 337 by Respondents with respect to '773, '701,
'506, '931, '933, '218, '975, '976, '871, '762, '764, '222, '223, '311,
'833, '836, and '989 patents. Final ID at 1. The Final ID finds no
violation with respect to the '963, '757, and '471 patents based on
noninfringement and failure to satisfy

[[Page 31521]]

the technical prong of the domestic industry requirement. Id. at 1,
284-86. The Final ID also finds that no asserted patent is invalid as
anticipated or obvious. Id. Concerning the economic prong of the
domestic industry requirement, the Final ID reduced Kia's alleged
investments due to Kia's failure to establish that certain of its
alleged domestic industry products are representative of other alleged
domestic industry products. Id. at 33-37.
On February 6, 2023, Respondents filed a petition for review
challenging the Final ID's findings on the economic prong of the
domestic industry requirement, infringement, and validity. Also on
February 6, 2023, Kia filed a petition for review challenging the Final
ID's findings of noninfringement and contingently petitioning regarding
the Final ID's findings concerning non-satisfaction of the technical
prong of the domestic industry requirement regarding the '963, '757,
and '471 patents. On February 14, 2023, Kia and Respondents 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 has determined to review the Final ID in its entirety.
The Commission has also determined to extend the target date for the
completion of the investigation until September 26, 2023.
In connection with its review, the Commission requests briefing on
the following issues. The parties are requested to brief their
positions with reference to the applicable law, the existing
evidentiary record, and the parties' submissions during the
investigation.
1. Please identify, with citations to the record prior to the Final
ID, where Kia satisfied its burden of proof to establish infringement
of each asserted patent by applying the ordinary observer test. As a
part of your discussion, please discuss:
a. the impact, if any, of the Final ID's determination not to rely
upon the testimony of Kia's expert in the Final ID's infringement
analysis because such testimony is conclusory. Final ID at 33.
b. what evidence and argument beyond side-by-side images of the
patented designs and accused products, if anything, is needed to
satisfy the burden of proof, and whether Kia provided that proof, in
this investigation. For example, was Kia required to provide a written
explanation in its prehearing and/or post hearing briefs discussing how
the accused products and each asserted patent are ``substantially the
same'' from the perspective of the ordinary observer?
2. Please identify, with citation to the record prior to the Final
ID, where Kia satisfied its burden of proof to establish the technical
prong of the domestic industry requirement for each asserted patent. As
part of your discussion, please discuss what evidence and argument
beyond side-by-side images of the patented designs and asserted
domestic industry products, if anything, is needed to satisfy the
burden of proof, and whether Kia provided that proof, in this
investigation. For example, was Kia required to provide a written
explanation in its prehearing and/or post hearing briefs discussing how
the asserted domestic industry products and each asserted patent are
``substantially the same'' from the perspective of the ordinary
observer?
3. Please discuss whether Kia satisfied its burden of proof to
establish that it has satisfied the economic prong of the domestic
industry requirement through significant investments in plant and
equipment based on the revised patent-by-patent investments to account
for the non-representative products. Please also identify, with
citations to the record prior to the Final ID, where Kia satisfied its
burden of proof as to the significance of the revised investments for
each patent.
4. Please address whether the Final ID, in finding infringement or
satisfaction of the technical prong as to the asserted design patents
despite complainants' failure to provide a written explanation
regarding similarity between the accused product and asserted design
from the standpoint of the ordinary observer, is consistent with
relevant legal authority. Please specifically address whether the Final
ID, by providing such a written explanation in the first instance,
presents issues under the Administrative Procedure Act.
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 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 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).
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 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 position on 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 Commission requests that the parties to
the investigation file written submissions on the issues identified in
this notice. The Commission encourages parties to the investigation,
interested government agencies, and any other interested parties 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, which issued on January
24, 2023. The Commission further requests that Kia submit proposed
remedial orders, state the date when the asserted patents expire,
provide the HTSUS subheadings under which the subject articles are
imported, and supply a list of known importers of the subject article.
The written submissions, exclusive of any exhibits, must not exceed 50
pages, and must be filed no later than close of business on May 25,
2023. Reply submissions must not exceed 20 pages, and must be filed

[[Page 31522]]

no later than the close of business on June 1, 2023. 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-1291) 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 May 11,
2023.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).

By order of the Commission.

Issued: May 11, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-10477 Filed 5-16-23; 8:45 am]
BILLING CODE 7020-02-P