[Federal Register Volume 89, Number 107 (Monday, June 3, 2024)]
[Notices]
[Pages 47605-47607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12118]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1325]
Certain Soft Projectile Launching Devices, Components Thereof,
Ammunition, and Products Containing Same; Notice of Commission
Determination To Review in Part a Final Initial Determination of
Violation of Section 337; Schedule for Filing Written Submissions on
Remedy, the Public Interest, and Bonding; Extension of the Target Date
AGENCY: U.S. 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 target date is extended to April 15,
2024.
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
[email protected]. 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: The Commission instituted this investigation
on August 26, 2022, based on a complaint filed by complainants Hasbro,
Inc. of Pawtucket, Rhode Island (``Hasbro''), and Spin Master, Inc. of
Los Angeles, California (``Spin Master'') (together, ``Complainants'').
87 FR 52595-96 (Aug. 26, 2022). The complaint, as supplemented, alleges
a violation of section 337 of the Tariff Act of 1930, as amended,19
U.S.C. 1337 (``section 337''), based upon the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain soft projectile launching devices,
components thereof, ammunition, and products containing same by reason
of the infringement of one or more of claims 1-15 and 17-21 of U.S.
Patent No. 8,371,282 (``the '282 patent'') and claims 1-6 and 10-15 of
U.S. Patent No. 8,640,683 (``the '683 patent''). Id. at 52595. The
complaint further alleges that an industry in the United States exists
or is in the process of being established. Id. The notice of
investigation names as respondents Shenzhen Yi Jin Electronics Science
of Shenzhen City, China, Guangdong Yu Lee Technology Corp. of Dongguan
City, China, Yu Lee Company Ltd. of Tsuen Wan, Hong Kong, and Gel
Blaster Inc. f/k/a Gel Blaster, LLC of Austin, Texas (together, ``the
Gel Blaster Respondents''); S-Beam Precision Products Ltd. of Zhongshan
City, China, Splat-R-Ball, LLC of Rogers, Arkansas, and Daisy
Manufacturing Company of Rogers, Arkansas (together, ``the Splat-R-Ball
Respondents''); and Prime Time Toys Ltd. of Kwun Tong, Hong Kong, Prime
Time Toys LLC of Pompton
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Lakes, New Jersey, and Easebon Services Ltd. of Kwun Tong, Hong Kong
(together, ``PTT'') (collectively, ``Respondents''). Id. The Office of
Unfair Import Investigations (``OUII'') is a party to the
investigation. Id. at 52595-96.
Complainants originally asserted that Respondents violated section
337 based on infringement of claims 1-15 and 17-21 of the '282 patent
and claims 1-6 and 10-15 of the '683 patent. Id. at 52595. The
Commission previously terminated the investigation with respect to
claims 1-7, 9-15, 17, 18, and 21 of the '282 patent and claims 1-4, 6,
10-12, 13 and 15 of the '683 patent based on Complainants' partial
withdrawal of the complaint. Order No. 10 (Oct. 25, 2022), unreviewed
by Comm'n Notice (Nov. 16, 2022); Order No. 21 (Jan. 18, 2023),
unreviewed by Comm'n Notice (Feb. 14, 2023); Order No. 44 (May 17,
2023), unreviewed by Comm'n Notice (May 30, 2023). Accordingly, at the
time of the evidentiary hearing, claims 8, 19, and 20 of the '282
patent and claims 5 and 14 of the '683 patent remained at issue.
On November 10, 2022, Complainants and Respondents stipulated that
the '282 and '683 patents share a common specification and describe
projectile launchers, soft projectiles made with ``super absorbent
polymers,'' and systems comprised of projectile launchers and soft
projectiles. Technology Stipulation (Nov. 10, 2022).
On November 21, 2022, Respondents stipulated that the importation
requirement is satisfied. On May 16, 2023, Complainants and Respondents
stipulated that the technical prong of the domestic industry
requirement is satisfied under the ALJ's construction of ``super
absorbent polymer.'' On May 18, 2023, the parties stipulated regarding
the disclosure of prior art.
On March 27, 2023, the ALJ issued a claim construction order. Order
No. 28 (Mar. 27, 2023). The ALJ held an evidentiary hearing on May 19,
and 22-23, 2023.
On April 27, 2023, the ALJ granted a motion for a summary
determination that Respondents infringed claims 6, 8, 19, and 20 of the
'282 patent and claims 1, 5, and 11 of the '683 patent. Order No. 37
(Apr. 27, 2023). Shortly thereafter, the Commission terminated the Gel
Blaster Respondents and Splat-R-Ball Respondents based on settlement.
Order No. 42 (May 17, 2023), unreviewed by Comm'n Notice (May 30,
2023); Order No. 45 (May 19, 2023), unreviewed by Comm'n Notice (May
30, 2023). Also, as noted above, the Commission subsequently terminated
the investigation with respect to claim 6 of the '282 patent and claims
1, and 11 of the '683 patent. The Commission affirmed the finding of
infringement against PTT regarding claims 8, 19, and 20 of the '282
patent and claims 5 of the '683 patent but determined to review and
vacate as moot the findings with respect to the Gel Blaster
Respondents, Splat-R-Ball Respondents, and the withdrawn claims. Comm'n
Notice (May 30, 2023).
On October 25, 2023, the ALJ issued the Final ID finding a
violation of section 337 with respect to claims 8, 19, and 20 of the
'282 patent and claims 5 and 14 of the '683 patent. Final ID at ii-iii.
Specifically, the Final ID notes that the Commission already found that
``the Accused Blasters (i.e., blaster kits with blasters and
ammunition)'' directly infringe claims 8, 19, and 20 of the '282 patent
and claim 5 of the '683 patent, and that PTT stipulated that the
accused products directly infringe claim 14. Id. at 21-22, 38-39. The
Final ID finds that PTT also induces and contributes to infringement
with respect to those claims. Id. at 25-30, 39-41. The Final ID further
finds that Complainants have satisfied the technical prong of the
domestic industry requirement with respect to claims 8, 19, and 20 of
the '282 patent and claims 5 and 14 of the '683 patent. Id. at 31-36,
41-44. Additionally, the Final ID finds that the asserted claims are
not invalid as obvious under 35 U.S.C. 103 due to PTT's failure to
provide a motivation to combine the references at issue and
Complainants' showing on secondary considerations. Id. at 44-91.
Finally, the Final ID finds that Complainants failed to show that a
domestic industry exists, but that Complainants did show that a
domestic industry is in the process of being established. Id. at 91-
117.
On October 26, 2023, the Commission requested comments from the
public and interested government agencies regarding any public interest
issues raised by the ALJ's RD. See 88 FR 74510-11 (Oct. 31, 2023). The
Commission received no comments from the public or government agencies
and received no comments from the parties on the public interest
pursuant to Commission Rule 210.50(a)(4). 19 CFR 210.50(a)(4).
On November 6, 2023, PTT filed a petition for review challenging
the Final ID's findings that: (1) PTT failed to provide motivations to
combine prior art to support a finding of obviousness; (2) secondary
considerations support a finding of nonobviousness; and (3)
Complainants showed an industry in the process of being established.
Also on November 6, 2023, Complainants filed a contingent petition for
review of the Final ID's finding that Complainants failed to show that
a domestic industry exists. On November 14. 2023, the Complainants and
PTT filed responses opposing each other's petitions, and OUII filed a
response opposing both petitions.
Having examined the record of 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. Specifically,
the Commission has determined to review the Final ID's findings on
obviousness and the economic prong of the domestic industry
requirement. The Commission has determined not to review the remainder
of the Final ID. The Commission has also determined to extend the
target date to April 15, 2024.
In connection with its review, the Commission requests briefing on
the following issue. 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.
Please identify and discuss with citations to the record whether
any argument or evidence was presented to the ALJ that a significant
and unusual development(s) existed after the complaint was filed in
this matter that may justify consideration of post-complaint
evidence to support Complainants' domestic industry claim. See,
e.g., Certain Televisions, Remote Controls, and Components Thereof,
Inv. No. 337-TA-1263, Comm'n Op. at 20-21 (Nov. 30, 2022) (Public
Vers.).
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 cease and desist order(s) 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).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public
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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 October
25, 2023. The Commission further requests that Complainants and OUII
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 20 pages, and must be filed no later than close of
business on February 13, 2024. Reply submissions must not exceed 10
pages and must be filed no later than the close of business on February
20, 2024. 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-1325) 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 January
30, 2024.
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.
Original Issued Date: January 30, 2024.
Issued: May 29, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-12118 Filed 5-31-24; 8:45 am]
BILLING CODE 7020-02-P