[Federal Register Volume 88, Number 185 (Tuesday, September 26, 2023)]
[Notices]
[Pages 66053-66054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20815]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1294]


Certain High-Performance Gravity-Fed Water Filters and Products 
Containing the Same; Notice of the Commission's Final Determination 
Finding No Violation of Section 337; Termination of the Investigation

AGENCY: International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``Commission'') has determined that there is no violation 
of section 337 in the above-captioned investigation, reversing the 
administrative law judge's (``ALJ'') final initial determination 
(``ID'') in this investigation on review. The Commission has determined 
to grant in part complainant's motion to strike waived arguments and 
new evidence.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3042. 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#bffafbf6ec8cf7dad3cfffcaccd6cbdc91d8d0c9"><span class="__cf_email__" data-cfemail="d095949983e398b5bca090a5a3b9a4b3feb7bfa6">[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: On January 31, 2022, the Commission 
instituted this investigation based on a complaint filed by Brita LP 
(``Brita'') of Neuchatel NE, Switzerland. 87 FR 4913 (Jan. 31, 2022). 
The complaint, as supplemented, alleged violations of section 337 of 
the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain high-
performance gravity-fed water filters and products containing the same 
by reason of infringement of claims 1-6, 20, 21, 23, and 24 of U.S. 
Patent No. 8,167,141 (``the '141 patent''). Id. The Commission's notice 
of investigation named nine respondents: Mavea LLC of West Linn, Oregon 
and Brita GmbH of Taunusstein, Switzerland (collectively, ``the Mavea 
Respondents''); Ecolife Technologies, Inc. of City of Industry, 
California and Qingdao Ecopure Filter Co., Ltd. of Shandong Province, 
China (collectively, ``the Aqua Crest Respondents''); Kaz USA, Inc. and 
Helen of Troy Limited, both of El Paso, Texas (collectively, ``PUR 
Respondents''); Zero Technologies, LLC of Trevose, Pennsylvania; 
Culligan International Co. of Rosemont, Illinois (collectively, 
``ZeroWater Respondents''); and Vestergaard Frandsen Inc. of Baltimore, 
Maryland (``LifeStraw''). Id. The Office of Unfair Import 
Investigations is not participating in this investigation. Id.
    On May 3, 2022, the ALJ issued an ID granting a motion to terminate 
the investigation as to the Mavea Respondents based upon settlement. 
Order No. 13 (May 3, 2022), unreviewed by Comm'n Notice (May 24, 2022).
    On June 1, 2022, the ALJ issued an ID granting a motion to 
terminate the investigation as to claims 20, 21, and 24 of the '141 
patent based upon withdrawal of the allegations in the complaint as to 
these claims. Order No. 19 (June 1, 2022), unreviewed by Comm'n Notice 
(June 21, 2022).
    On June 2, 2022, the ALJ held a Markman hearing. The ALJ issued a 
Markman Order construing the claim terms in dispute on July 20, 2022. 
Order No. 30 (July 20, 2022).
    On September 22, 2022, the ALJ issued an ID granting a motion to 
terminate the investigation as to the Aqua Crest Respondents based upon 
withdrawal of the allegations in the complaint as to these respondents. 
Order No. 43 (Sept. 22, 2022), unreviewed by Comm'n Notice (Oct. 11, 
2022).
    The ALJ held an evidentiary hearing from August 17-19, August 22-
23, and October 13, 2022, and received post-hearing briefs thereafter.
    On February 28, 2023, the ALJ issued the final ID finding a 
violation of section 337. The ID found that ``because of importation 
stipulations of all Accused Products,'' the importation requirement 
under 19 U.S.C. 1337(a)(1)(B) is satisfied. ID at 12-13. The ID also 
found that Brita successfully proved that all of the Accused Products 
infringe the

[[Page 66054]]

asserted claims of the '141 patent (claims 1-6 and 23). Id. at 69-105. 
The ID further found that Respondents failed to show by clear and 
convincing evidence that the asserted claims are invalid for lack of 
written description (Id. at 169-204), enablement (Id. at 205-250), 
anticipation (Id. at 153-169), or for reciting ineligible subject 
matter under 35 U.S.C. 101 (Id. at 250-269). Finally, the ID found that 
Brita proved the existence of a domestic industry that practices the 
'141 patent as required by 19 U.S.C. 1337(a)(2). Id. at 105-117, 269-
285.
    The ID included the ALJ's recommended determination on remedy and 
bonding (``RD''). The RD recommended, should the Commission find a 
violation, issuance of a limited exclusion order against all 
respondents and cease and desist orders against the PUR Respondents and 
LifeStraw. ID/RD at 258-291. The RD also recommended imposing a bond in 
the amount of one hundred percent (100%) of entered value for PUR's and 
ZeroWater's infringing products imported during the period of 
Presidential review and $6 per unit for infringing LifeStraw products 
imported during the period of Presidential review. Id. at 291-295.
    On March 13, 2023, Respondents and Brita filed respective petitions 
for review of the ID. On March 21, 2023, the parties filed responses to 
the petitions.
    On May 24, 2023, Respondents moved for leave to file a notice of 
supplemental authority regarding their petition for review. 
Specifically, Respondents sought to submit the recent U.S. Supreme 
Court decision in Amgen Inc. v. Sanofi, No. 21-757 (May 18, 2023), as 
being directly relevant to the lack of enablement of the asserted. On 
June 28, 2023, the Commission issued a Notice granting the motion. 88 
FR 42951 (July 5, 2023).
    In its Notice on June 28, 2023, the Commission also determined to 
review the final ID in part. Id. at 42950-53. Specifically, the 
Commission determined to review the following findings: (1) 
construction of the claim term ``filter usage lifetime claimed by a 
manufacturer or seller of the filter,'' (2) written description, (3) 
enablement, (4) section 101, (5) anticipation, and (6) the economic 
prong of the domestic industry requirement. The Commission requested 
the parties to brief certain issues under review and to brief the 
issues of remedy, the public interest, and bonding. Id.
    On July 14, 2023, the parties filed initial submissions in response 
to the Commission's request for briefing. On July 21, 2023, the parties 
filed reply submissions. The parties also filed a number of motions and 
oppositions, which we address below.
    On July 24, 2023, Complainant Brita filed a motion to strike waived 
arguments and new evidence in Respondents' Reply in Response to the 
Commission Notice of Review. On August 3, 2023, Respondents filed an 
opposition to the motion. On August 8, 2023, Brita moved for leave 
under Commission Rule 210.15(c) to file a reply to Respondents' 
opposition. On August 18, 2023, Respondents filed an opposition to 
Brita's motion. The Commission has determined to grant in part Brita's 
motion as it pertains to introducing new dictionary definitions for 
``validate'' and ``claim'' for being waived. The Commission has 
determined to otherwise deny the motion. The Commission has further 
determined to deny Brita's motion for leave to file a reply to 
Respondents' opposition as unnecessary.
    Upon review of the parties' submissions, the ID, and evidence of 
record, the Commission has determined that Brita has failed to show 
that Respondents violated section 337 by reason of the importation and 
sale of articles that infringe asserted claims 1-6 and 23 of the '141 
patent. Specifically, on review, the Commission has determined to (1) 
vacate the ID's construction of the claim term ``filter usage lifetime 
claimed by a manufacturer or seller of the filter'' and finds the claim 
limitation indefinite, (2) reverse the ID's finding that the asserted 
claims are not invalid for lack of written description, (3) reverse the 
ID's findings that the asserted claims are enabled, (4) take no 
position on the ID's section 101 analysis and findings, (5) take no 
position on the ID's anticipation analysis and findings, and (6) take 
no position on the ID's findings on the economic prong of the domestic 
industry requirement. The Commission's reasoning is set forth in its 
opinion issued herewith.
    The investigation is hereby terminated with a finding of no 
violation of section 337.
    The Commission vote for this determination took place on September 
19, 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: September 19, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-20815 Filed 9-25-23; 8:45 am]
BILLING CODE 7020-02-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>