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[Federal Register Volume 89, Number 223 (Tuesday, November 19, 2024)]
[Notices]
[Pages 91424-91427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26885]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1365]

Certain Photovoltaic Connectors and Components Thereof; Notice of 
a Commission Determination To Review in Part a Final Initial 
Determination; Request for Written Submissions on the Issues Under 
Review and on Remedy, the Public Interest, and Bonding; Extension of 
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 (``FID'') issued by the presiding administrative law 
judge (``ALJ''). The Commission requests written submissions from the 
parties on the issues under review and submissions from the parties, 
interested government agencies, and other interested persons on the 
issues of remedy, the public interest, and bonding, under the schedule 
set forth below.

DATES: The Commission has determined to extend the target date for this 
investigation to January 15, 2025.

FOR FURTHER INFORMATION CONTACT: Paul Lall, Office of the General 
Counsel, U.S.

[[Page 91425]]

International Trade Commission, 500 E Street SW, Washington, DC 20436, 
telephone (202) 205-2043. 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, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: On June 9, 2023, the Commission instituted 
this investigation based on a complaint filed on behalf of Shoals 
Technologies Group, LLC (``Shoals Technologies'') of Portland, 
Tennessee. 88 FR 37905-06 (June 9, 2023). The complaint alleges 
violations 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, or sale within the United 
States after importation of certain photovoltaic connectors and 
components thereof by reason of infringement of certain claims of U.S. 
Patent Nos. 10,553,739 (``the '739 patent'') and 10,992,254 (``the '254 
patent''). The Commission's notice of investigation (``NOI'') named the 
following eight respondents: (1) Hikam America, Inc. of Chula Vista, 
California; (2) Hikam Electr[oacute]nica de M[eacute]xico, S.A. de C.V. 
of Mexicali, Mexico; (3) Hikam Tecnologia de Sinaloa of Guasave, 
Mexico; (4) Hewtech Philippines Corp. of Laguna, Philippines; (5) 
Hewtech Philippines Electronics Corp. of Pampanga, Philippines; (6) 
Hewtech (Shenzhen) Electronics Co., Ltd. of Shenzhen, China 
(collectively the ``Hikam Respondents''); (7) Voltage, LLC 
(``Voltage'') of Chapel Hill, North Carolina; and (8) Ningbo Voltage 
Smart Production Co. (``Ningbo Voltage'') of Ningbo, China 
(collectively ``Respondents''). Id. The Office of Unfair Import 
Investigations (``OUII'') was also named as a party in this 
investigation. Id. at 37906.
    On August 15, 2023, the Commission amended the complaint and NOI to 
add allegations of infringement against Voltage related to certain 
claims of U.S. Patent No. 11,689,153 (``the '153 patent''). See Order 
No. 5 (Jul. 18, 2023), unreviewed by 88 FR 56882-83 (Aug. 21, 2023).
    The presiding ALJ held a Markman hearing on December 13, 2023, and 
on February 20, 2024, issued an order addressing claim construction for 
the '739, '254, and '153 patents. See Order No. 16 (Feb. 20, 2024) 
(``Markman Order''). On February 28, 2024, Shoals filed a motion for 
reconsideration of the Markman Order's construction of the term 
``engaged with'' in claims 1 and 10 of the '739 patent. On March 4 and 
5, 2024, Respondents and OUII filed oppositions to the motion, 
respectively.
    On March 11, 2024, the Commission terminated the following claims 
from the investigation based on Shoals' withdrawal of the complaint as 
to those claims: claims 2, 3, 6, 8, 9, 11, 12, and 15-18 of the '739 
patent, claims 2-4, 8-12, 14, and 15 of the '254 patent, and claims 2, 
3, 6, and 15-17 of the '153 patent. See Order No. 15 (Feb. 9, 2024), 
unreviewed by Comm'n Notice (March 11, 2024).
    On March 25, 2024, the Commission terminated the '254 patent from 
this investigation based on Shoals' withdrawal of the complaint as to 
that patent. See Order No. 19 (Feb. 28, 2024), unreviewed by Comm'n 
Notice (March 26, 2024).
    On April 19, 2024, the Commission determined not to review the 
ALJ's grant of summary determination that Shoals has not satisfied the 
technical prong of the domestic industry requirement for the '739 
Patent and, thus, found no violation as to the '739 patent. Order No. 
20 (March 6, 2024), unreviewed by Comm'n Notice (Apr. 19, 2024). In 
Order No. 20, the ALJ also denied Shoals' motion for reconsideration of 
the Markman Order. Id. Only the '739 patent was asserted against the 
Hikam Respondents. See Comm'n Notice (Apr. 19, 2024); Am. Compl. at 66. 
Accordingly, the Hikam Respondent were effectively terminated from the 
investigation as of the termination of the '739 patent. On June 18, 
2024, Shoals filed a notice of appeal with the U.S. Court of Appeals 
for the Federal Circuit appealing the Commission's finding of no 
violation as to the '739 patent. See Case No. 24-1991, Notice of 
Docketing (Fed. Cir. June 24, 2024).
    On April 26, 2024, the Commission terminated this investigation 
with respect to asserted claim 8 of the '153 patent based on Shoals' 
withdrawal of the complaint as to that claim. See Order No. 29 (April 
2, 2024), unreviewed by Comm'n Notice (Apr. 26, 2024).
    The ALJ held an evidentiary hearing on March 18-22, 2024. As of the 
hearing, Shoals asserted claims 1, 11-14, 18, 21, 23, and 24 of the 
'153 patent against the accused Voltage Trunk Bus, and Voltage sought 
adjudication of the Voltage Alternative Design [``AD''] Trunk Bus with 
respect to and claims 21 and 24 of the '153 patent. Shoals also 
asserted that its domestic industry product practices claims 1 and 21 
of the '153 patent for purposes of the domestic industry requirement.
    On August 30, 2024, the presiding ALJ issued the FID, finding that 
there has been a violation of section 337 in the importation into the 
United States, the sale for importation, and/or the sale in the United 
States after importation of certain photovoltaic connectors and 
components thereof with respect to certain claims of the '153 patent. 
Specifically, the FID finds as to the '153 patent that: (1) the Voltage 
Trunk Bus and Voltage AD Trunk Bus have been imported into the United 
States, sold for importation, and/or sold within the United States 
after importation; (2) the Voltage Trunk Bus satisfies claims 1, 11-14, 
and 18; (3) the Voltage Trunk Bus does not satisfy claims 21, 23, and 
24; (4) the Voltage AD Trunk Bus does not satisfy claims 1, 11-14, 18, 
21, 23, and 24; (5) Shoals has satisfied the technical prong of the 
domestic industry requirement; (6) Shoals has satisfied the economic 
prong of the domestic industry requirement; and (7) Voltage has not 
shown that claims 1, 11-14, 18, 21, 23, and 24 are invalid.
    On September 13, 2024, the presiding ALJ issued a Recommended 
Determination on Remedy and Bonding (``RD''). The RD recommends that 
the Commission issue a limited exclusion order in the event it finds a 
violation of section 337 and impose a bond of 100 percent during the 
period of Presidential Review.
    On October 15 and 16, 2024, Shoals and Voltage, respectively, filed 
a statement on the public interest pursuant to Commission Rule 
210.50(a)(4), 19 CFR 210.50(a)(4). On October 2 and October 15, 2024, 
American Wire Group of Miami, Fla. and Strata Clean Energy of Durham, 
N.C. respectively filed statements on the public interest in response 
to the Commission's Federal Register notice. See 89 FR 76869-70 (Sept. 
19, 2024).
    On September 16, 2024, Shoals filed a petition for review of the 
FID. In its petition, Shoals Technologies argued that the ALJ should 
not have considered respondents' redesign product, the Voltage AD Trunk 
Bus, as being within the scope of the investigation.
    On the same day, Respondents also filed a petition for review of 
several of the FID's findings, including: (1) the FID's construction of 
the term ``aperture, recited in the asserted claims of the '153 
patent'' as defined by the ``Modified Cable Test''; (2) the FID's 
finding that the asserted claims of the '153 patent are not invalid for 
lack of written

[[Page 91426]]

description and/or indefiniteness; (3) the FID's finding that Shoals 
has a domestic industry with respect to an article protected by the 
'153 patent; and (4) the ALJ's determination to exclude the testimony 
of their invalidity expert.
    Also on the same day, OUII filed a petition for review of the FID, 
seeking review of several of the FID's findings, including: (1) the 
FID's construction of the three ``aperture'' terms recited in the 
asserted claims of the `153 patent; (2) the FID's finding that Shoals' 
asserted domestic industry products satisfy the technical prong of the 
domestic industry requirement; and (3) the ALJ's determination to 
exclude the testimony of Respondents' invalidity expert.
    On September 24, 2024, Shoals, Voltage and OUII each filed 
responses to the respective petitions for review. On October 4, 2024, 
Voltage filed a notice of supplemental authority and on October 7, 
2024, Shoals filed a response.
    Having reviewed the record of the investigation, including the FID, 
the parties' petitions for review and related submissions, the 
Commission has determined to review the FID's: (1) construction of the 
``aperture'' terms recited in the asserted claims of the '153 Patent; 
(2) finding that the accused products infringe the asserted claims of 
the '153 patent; (3) finding that the asserted claims of the '153 
patent are not invalid under 35 U.S.C. 112 for lack of written 
description and/or indefiniteness; and (4) finding that Shoals' 
domestic industry products satisfy the domestic industry requirement of 
section 337, including the FID's findings concerning the technical 
prong and the economic prong.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of, inter alia, (1) an exclusion order that 
could result in the exclusion of the subject articles from entry into 
the United States; and/or (2) cease and desist orders 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 (Dec. 1994). In connection with these findings, the Commission 
requests responses from the parties to the following questions:
    (1) Please identify whether and where in the record Shoals 
presented arguments with supporting evidence that the accused products 
infringe any asserted claim of the '153 patent under OUII's proposed 
construction of the ``aperture'' terms.
    (2) Please identify whether and where in the record Shoals 
presented arguments with supporting evidence that its domestic industry 
products satisfy the technical prong of the domestic industry 
requirement of section 337 under OUII's proposed construction of the 
``aperture'' terms.
    The parties are invited to brief only the discrete issues requested 
above. The parties are not to brief other issues on review, which are 
adequately presented in the parties' existing filings.
    The statute requires the Commission to consider the effects of that 
remedy upon the public interest. The public interest factors the 
Commission will consider include the effect that an exclusion order and 
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, 
disapprove, or take no action on the Commission's determination. 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 parties are requested to file written 
submissions on the questions 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.
    In its initial submission, Complainant is also requested to 
identify the remedy sought and Complainant and OUII are requested to 
submit proposed remedial orders for the Commission's consideration. 
Complainant is further requested to state the dates that the Asserted 
Patents expire, to provide the HTSUS subheadings under which the 
accused products are imported, and to supply the identification 
information for all known importers of the products at issue in this 
investigation. The initial written submissions must be filed no later 
than close of business on November 27, 2024. Reply submissions must be 
filed no later than the close of business on December 5, 2024. No 
further submissions on these issues will be permitted unless otherwise 
ordered by the Commission. Opening submissions are limited to 50 pages. 
Reply submissions are limited to 25 pages. No further submissions on 
any of 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 (Mar. 19, 2020). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-1365'') 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. Any non-
party wishing to submit comments containing confidential information 
must serve those comments on the parties to the investigation pursuant 
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the 
Commission and served on any parties to the investigation within two 
business days of any confidential filing. All

[[Page 91427]]

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 has determined to extend the target date for this 
investigation to January 15, 2025.
    The Commission's vote on this determination took place on November 
13, 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.

    Issued: November 13, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-26885 Filed 11-18-24; 8:45 am]
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