[Federal Register Volume 86, Number 8 (Wednesday, January 13, 2021)]
[Notices]
[Page 2696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00477]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-567 (Advisory Opinion Proceeding 2)]


Certain Foam Footwear; Institution of an Advisory Opinion 
Proceeding

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 institute an advisory opinion proceeding 
in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-2310. 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 
<a href="/cdn-cgi/l/email-protection#793c3d302a4a311c1509390c0a100d1a571e160f"><span class="__cf_email__" data-cfemail="e8adaca1bbdba08d8498a89d9b819c8bc68f879e">[email protected]</span></a>. 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, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted the underlying 
investigation on May 11, 2006, based on a complaint, as amended, filed 
by Crocs, Inc. (``Crocs'') of Niwot, Colorado. 71 FR 27514-15 (May 11, 
2006). The complaint alleged, inter alia, violations of section 337 of 
the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation 
into the United States, the sale for importation, and the sale within 
the United States after importation of certain foam footwear, by reason 
of infringement of claims 1-2 of U.S. Patent No. 6,993,858 (``the '858 
patent'') and U.S. Patent No. D517,789 (``the '789 patent''). The 
notice of investigation named several respondents, including Double 
Diamond Distribution Ltd. (``Double Diamond'') of Saskatoon, Canada.
    On July 25, 2008, the Commission issued a final determination 
finding no violation of section 337 based on non-infringement and 
failure to satisfy the technical prong of the domestic industry 
requirement with respect to the '789 patent, and based on invalidity of 
the '858 patent as obvious under 35 U.S.C. 103. 73 FR 45073-74 (Aug. 1, 
2008). On July 15, 2011, after an appeal to the U.S. Court of Appeals 
for the Federal Circuit and subsequent remand vacating the Commission's 
previous finding of no violation, the Commission found a violation of 
section 337 based on infringement of the asserted claims of the patents 
and issued a general exclusion order (``GEO'') and, inter alia, a cease 
and desist order (``CDO'') directed against Double Diamond. 76 FR 
43723-24 (July 21, 2011).
    On March 28, 2020, the '789 patent expired, so the GEO and CDO are 
now only directed to articles that infringe one or more of claims 1 and 
2 of the '858 patent. Subsequently, on December 8, 2020, Double Diamond 
petitioned for institution of an expedited advisory opinion proceeding 
to determine whether its Original Beach DAWGS<SUP>TM</SUP> shoes with 
plastic washers are covered by the GEO or CDO. On December 18, 2020, 
Crocs opposed Double Diamond's petition for an expedited advisory 
opinion proceeding. On December 22, 2020, Double Diamond moved for 
leave to file a reply to Crocs' opposition.
    The Commission has determined that Double Diamond's petition 
complies with the requirements for institution of an advisory opinion 
proceeding under Commission Rule 210.79 to determine whether its 
Original Beach DAWGS<SUP>TM</SUP> shoes with plastic washers fall 
within the scope of the GEO or CDO. Accordingly, the Commission has 
determined to institute an advisory opinion proceeding and refer it to 
the Office of the General Counsel. The parties will furnish the Office 
of the General Counsel with information as requested in the 
accompanying order, and the Commission will issue an advisory opinion 
within ninety (90) days of the date of publication of this notice in 
the Federal Register. The following entities are named as parties to 
the proceeding: (1) Double Diamond and (2) Crocs. The Commission has 
determined to grant Double Diamond's motion for leave to file a reply 
to Crocs' opposition.
    The Commission vote for this determination took place on January 7, 
2021.
    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: January 7, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-00477 Filed 1-12-21; 8:45 am]
BILLING CODE 7020-02-P


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