[Federal Register Volume 86, Number 15 (Tuesday, January 26, 2021)]
[Notices]
[Pages 7105-7106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01648]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1118 (Advisory Opinion Proceeding)]


Certain Movable Barrier Operator Systems and Components Thereof 
Notice of a Commission Determination To Institute 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 (the ``Commission'') has determined to institute an advisory 
opinion proceeding, as requested by respondents Nortek Security & 
Control, LLC of Carlsbad, California; Nortek, Inc. of Providence, Rhode 
Island; and GTO Access Systems, LLC of Tallahassee, Florida 
(collectively, ``Nortek''). The Commission has further determined to 
set a target date of six months from the date of institution for 
completion of this proceeding, and to refer this matter to the Chief 
Administrative Law Judge (``CALJ'') for assignment to an administrative 
law judge (``ALJ'') for appropriate proceedings and a recommendation, 
to be completed within four months from the date of institution.

FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2382. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket system (``EDIS'') at 
https://edis.usitc.gov. For help accessing EDIS, please email 
<a href="/cdn-cgi/l/email-protection#4e0b0a071d7d062b223e0e3b3d273a2d60292138"><span class="__cf_email__" data-cfemail="6b2e2f223858230e071b2b1e18021f08450c041d">[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 this investigation 
on June 11, 2018, based on a complaint, as supplemented, filed by The 
Chamberlain Group, Inc. (``CGI'') of Oak Brook, Illinois. 83 FR 27020-
21 (June 11, 2018). The complaint alleges that Nortek violated section 
337 of the Tariff Act, as amended, 19 U.S.C. 1337 (``Section 337'') by 
importing, selling for importation, or selling in the United States 
after importation certain movable barrier operator (``MBO'') systems, 
including garage door openers (``GDOs''), that allegedly infringe one 
or more of the asserted claims of U.S. Patent Nos. 7,755,223 (``the 
'223 patent''), 8,587,404 (``the '404 patent''), and 6,741,052 (``the 
'052 patent''). Id. The Office of Unfair Import Investigations was not 
named as a party to this investigation. Id.
    On December 12, 2018, CGI filed an opposed motion for summary 
determination that it satisfied the economic prong of the domestic 
industry requirement. On June 6, 2019, the presiding ALJ issued a 
notice advising the parties that the motion would be granted and a 
formal written order would follow. Order No. 26 (June 6, 2019).
    On November 25, 2019, the ALJ issued Order No. 38, granting CGI's 
motion for summary determination that its investments in labor and 
capital were ``significant'' and satisfied the economic prong of the 
domestic industry requirement under 19 U.S.C. 1337(a)(3)(B). Order No. 
38 (Nov. 25, 2019). Order No. 38 denied summary determination with 
respect to CGI's investments in plant and equipment under 19 U.S.C. 
1337(a)(3)(A). Id.
    On the same date, the ALJ issued the final Initial Determination on 
Violation of Section 337 (``Final ID'') and Recommended Determination 
on Remedy and Bond (``RD''), finding no violation of Section 337 
because the asserted claims of the '223 and '404 patents are not 
infringed and the asserted claim of the '052 patent is invalid.
    On February 19, 2020, the Commission issued a notice of its 
determination to review Order No. 38 and to partially review the Final 
ID with respect to certain issues relating to each of the three 
asserted patents. 85 FR 10723-26 (Feb. 25, 2020).
    On April 22, 2020, the Commission affirmed there is no violation 
with respect to the '404 and '052 patents. Comm'n Notice at 3 (April 
22, 2020). The Commission also vacated Order No. 38 and remanded the 
economic prong issue to the presiding ALJ for further proceedings, 
while the Commission continued to review issues relating to the '223 
patent. Id.; Order Vacating and Remanding Order No. 38 (April 22, 2020) 
(``Remand Order'').
    On July 10, 2020, the ALJ issued a Remand Initial Determination 
(``Remand ID''), finding that CGI made significant investments in plant 
and equipment and labor and capital sufficient to satisfy the economic 
prong of the domestic industry requirement under both Sections 
337(a)(3)(A) and (B) (19 U.S.C. 1337(a)(3)(A), (B)), respectively. 
Remand ID (July 10, 2020). On September 9, 2020, the Commission 
determined to review the Remand ID. 85 FR 57249-51 (Sept. 15, 2020).
    On December 3, 2020, the Commission determined that Nortek violated 
Section 337 by way of infringing claims 1 and 21 of the '223 patent. 
The Commission issued a limited exclusion order and cease and desist 
orders against Nortek and imposed a bond in the amount of 100 percent 
of the entered value of the covered products during the period of 
Presidential review.
    On December 18, 2020, Nortek filed the subject request for an 
advisory opinion that GDOs that allegedly operate their obstacle 
detectors at a constant energy level do not infringe asserted claims 1 
or 21 of the '223 patent, and thus are not covered by the remedial 
orders. CGI filed its opposition to Nortek's request on December 30, 
2020.
    On January 7, 2021, Nortek filed a motion seeking leave to file a 
reply to CGI's opposition. On January 11, 2021, CGI opposed Nortek's 
motion. The Commission has determined to deny Nortek's motion.
    Having reviewed the parties' submissions in view of the record 
below, the Commission has determined to institute an advisory opinion 
proceeding, per Nortek's request, to ascertain whether GDOs that 
allegedly operate their obstacle detectors at a constant energy level 
infringe asserted claims 1 or 21 of the '223 patent and are covered by 
the remedial orders issued in this investigation. The Commission has 
determined to refer the matter to the CALJ for assignment to an ALJ for 
appropriate proceedings and a recommendation. The ALJ shall conduct any 
appropriate proceedings and issue an initial advisory opinion within 
four months from the date that the Commission's notice to conduct the 
proceeding is published in the Federal Register. The target date shall 
be two months thereafter. The ALJ may extend the target date, allowing 
two months for Commission review, for good cause.
    The Commission voted to approve these determinations on January 19, 
2021.
    The authority for the Commission's determinations is contained in 
Section

[[Page 7106]]

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 21, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-01648 Filed 1-25-21; 8:45 am]
BILLING CODE 7020-02-P


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