2014-28640. Certain Multiple Mode Outdoor Grills and Parts Thereof; Commission's Determination To Review-In-Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and ...

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 final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) on September 26, 2014, finding a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in this investigation.

FOR FURTHER INFORMATION CONTACT:

Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone [phone]. 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 [phone]. General information concerning the Commission may also be obtained by accessing its Internet server at http://www.usitc.gov. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on [phone].

SUPPLEMENTARY INFORMATION:

The Commission instituted this investigation on September 26, 2013, based on a complaint filed on behalf of A&J Manufacturing, LLC of St. Simons, Georgia and A&J Manufacturing, Inc. of Green Cove Springs, Florida (collectively, “A&J” or “Complainants”). 78 FR 59373 (Sept. 26, 2013). The complaint alleged violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, or sale within the United States after importation of certain multiple mode outdoor grills and parts thereof by reason of infringement of certain claims of U.S. Patent No. 8,381,712, U.S. Patent No. D660,646, and U.S. Patent No. D662,773 patent. The Commission's notice of investigation, as amended, named numerous respondents including: The Brinkmann Corporation (“Brinkmann”); Academy Ltd., d/b/a Academy Sports + Outdoors (“Academy”); Ningbo Huige Outdoor Products Co. (“Huige”); Char-Broil, LLC (“Char-Broil”); Zhejiang Fudeer Electric Appliance Co., Ltd. (“Fudeer”); Outdoor Leisure Products, Incorporated (“OLP”); Dongguan Kingsun Enterprises Co., Ltd. (“Kingsun”); and Keesung Manufacturing Co., Ltd. (“Keesung”) (collectively “the Respondents”). The Office of Unfair Import Investigations (OUII) is also a party to this investigation.

On June 24, 2014, the Commission affirmed-in-part and vacated-in-part an initial determination granting-in-part a motion for summary determination of non-infringement filed by Char-Broil, Fudeer, OLP, Kingsun, Tractor Supply Co. (“TSC”), and Chant Kitchen Equipment (HK) Ltd. (“Chant”). The Commission found that Complainants admit that the following redesigned grills do not infringe the '712 patent: (1) Chant/Tractor Supply's New Model 1046761; (2) Rankam's Member's Mark Grill, Model No. GR2071001-MM (Ver. 2) and (3) Rankam's Smoke Canyon Grill, Model No. GR2034205-SC (Ver. 2). Comm'n Op. at 1 (Jun. 24, 2014). The Commission found the other redesigned products at issue were within the scope of the investigation. Id. The Commission adopted the ALJ's construction of the “openable [] cover” limitations of claims 1 and 17 on modified grounds. Id. The Commission affirmed the ALJ's finding of non-infringement of claims 1 and 17 for the Char-Broil Oklahoma Joe Longhorn Model 12210767 Grill and adopted the ALJ's findings that the redesigned grills do not infringe claims 1 and 17 on modified grounds. Id. The Commission also found that the “openable [] cover means” limitations of claim 10 are means-plus-function limitations and directed the ALJ to make findings consistent with its means-plus-function interpretation. Id. at 2.

On September 26, 2014, the ALJ issued the final ID, finding a violation of section 337 as to Respondents Brinkmann, OLP, Kingsun, Academy, and Huige based upon his determinations: (i) That certain, but not all, accused products infringe at least one claim of the '712 patent; (ii) that the domestic industry requirement has been satisfied with respect to the '712 patent; and (iii) that the asserted claims of the '712 patent have not been shown by clear and convincing evidence to be invalid. On October 9, 2014, the ALJ issued his recommended determination on remedy and bonding.

On October 14, 2014, A&J filed a petition for review of the following issues: (1) The ALJ's interpretation of the scope of claim 10 of the '712 patent; (2) the ALJ's finding that certain Char-Broil Grills and the certain redesigned OLP Grills do not satisfy the “openable [] cover means” limitations of claim 10 of the '712 patent; and (3) the ALJ's finding that the Char-Broil Model 463724512 and GHP DGB730SNB-D grills do not satisfy the claim limitation that the first cover “includes at least one exhaust” in claims 1, 10, and 17 of the '712 patent.

On the same day, Respondents Academy, Huige, OLP, and Brinkmann filed three separate petitions for review of the final ID. Brinkmann, OLP, and Academy together seek review of the following determinations: (1) That the asserted claims have not been shown by clear and convincing evidence to be invalid as obvious over U.S. Patent No. 5,632,265 in view of U.S. Patent No. 4,773,319 (“Holland '319”) and U.S. Patent No. 6,606,986; and (2) that the asserted claims have not been shown by clear and convincing evidence to be invalid as obvious over U.S. Patent No. 6,189,528, either alone or in view of Holland '319. OLP separately challenges the ALJ's construction of the claim term “exhaust,” and his finding that certain OLP products infringe claims 1-16 of the '712 patent. Academy and Huige petition for review of the ALJ's determination (Order No. 47) to exclude evidence and testimony concerning their redesigns, and the ALJ's refusal to make a determination as to whether those redesigns infringe the '712 patent. A&J, Respondents, and OUII each filed a response to the petitions on October 22, 2014.

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: (1) The ID's construction of the “exhaust” and “exhaust means” limitations in claims 10 and 16, and related findings regarding infringement of claims 10-16; (2) the ID's findings regarding infringement of claims 1, 4, and 6-8 by the accused Dyna-Glo grills imported by Respondent GHP; (3) the ID's findings regarding infringement of claims 1, 2, 4-8, 10, 11, and 13-15 by the accused Char-Broil Model No. 463724512 grill; and (4) the ID's finding that the '712 patent was not shown to be invalid.

The parties are requested to brief their positions on the issues under review with reference to the applicable law and the evidentiary record. In connection with its review, the Commission requests responses to the following questions only. Each party's brief responding to the following questions should be no more than 60 pages.

1. Discuss whether the “exhaust” limitation and/or the “exhaust means” limitations in claims 10 and 16 should be interpreted as means-plus-function limitations, including whether any presumption that these limitations are means-plus-function limitations has been rebutted.

2. If the “exhaust” limitation and/or the “exhaust means” limitations in claims 10 and 16 are correctly interpreted as means-plus-function limitations, (a) please identify the functions claimed in these limitations, as well as what structure(s) in the specification perform the claimed functions, and (b) discuss whether the limitations of claims 10-16 are met by the accused products at issue in the final ID.

3. Please discuss whether A&J waived petition of the ID's finding that the Dyna-Glo DGJ810CSB-D grill does not infringe any asserted claim of the '712 patent because it lacks the claimed “exhaust” and “exhaust means” on its openable covers. Assuming that A&J did not waive this finding, please discuss whether the DGJ810CSB-D grill infringes claims 1, 4, and 6-8 of the '712 patent.

4. The Commission is not changing its interpretation of the claim term “includes,” which requires that an “exhaust” be located on the “openable [ ] cover,” as set forth in the Commission's Opinion on June 27, 2014. Assuming that the asserted claims require that an “exhaust” be located on (but not necessarily wholly within) the “openable [ ] cover,” please discuss with citations to the record evidence whether the Char-Broil Model No. 463724512 grill and the GHP DGB730SNB-D grill satisfy the “includes at least one exhaust” limitation for the claimed “first cover” in claim 1 and/or claim 10.

5. The ID found that the Respondents did not prove by clear and convincing evidence that the asserted claims of the '712 patent have been shown to be invalid as obvious over U.S. Patent No. 5,632,265 (“Koziol”) in view of U.S. Patent No. 4,773,319 (“Holland '319”) and/or U.S. Patent No. 6,606,986 (“Holland '986”). Please discuss what evidence supports or does not support modifying Koziol to include the smoke stacks disclosed in Holland '319 and/or Holland '986. If the “exhaust” limitation and/or the “exhaust means” limitations in claims 10 and 16 are correctly interpreted as means-plus-function limitations, please discuss whether the means-plus-function limitations of claims 10 and 16 are met by the prior art combination.

6. The ID found that the Respondents did not prove by clear and convincing evidence that the asserted claims of the '712 patent have been shown to be invalid as obvious over U.S. Patent No. 6,189,528 (“Oliver”) in view of Holland '319. Please discuss what evidence supports or does not support modifying Oliver to include the smoke stacks disclosed in Holland '319. Please also discuss what evidence supports or does not support interpreting the lid ends 18 as described at column 4, line 67 to column 5, line 2 in Oliver as part of the “openable [] cover” and “openable [] cover means,” and whether the space between the lid ends and the lid reflector meets the ALJ's construction of “exhaust.” If the “exhaust” limitation and/or the “exhaust means” limitations in claims 10 and 16 are correctly interpreted as means-plus-function limitations, please discuss whether the means-plus-function limitations of claims 10 and 16 are met by the prior art combination.

7. Please discuss the evidence in the record that shows or does not show that the limitations in each of the dependent claims are disclosed in the prior art.

8. What record evidence supports a finding that OLP maintains commercially significant inventories of its original grills in the United States?

9. What relief, if any, does A&J request as to defaulting respondent Keesung?

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 respondent(s) 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 (December 1994) (Commission 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 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. 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 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 with respect to the asserted patent. Complainant and OUII are also requested to submit proposed remedial orders for the Commission's consideration. Complainant is further requested to state the date that the patent expires and the HTSUS numbers under which the accused products are imported, and provide identification information for all known importers of the subject articles. A party's written submission on the issues of remedy, the public interest, and bonding do not count towards its 60-page limit. The written submissions and proposed remedial orders must be filed no later than close of business on Friday, December 12, 2014. Reply submissions must be filed no later than the close of business on Friday, December 19, 2014. 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 eight (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-895”) 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_​electronic_​filing.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. A redacted non-confidential version of the document must also be filed simultaneously with the any confidential filing. 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).

Issued: December 2, 2014.

By order of the Commission.

Lisa R. Barton,

Secretary to the Commission.