[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Notices]
[Pages 15454-15455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05713]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1217]


Certain Blowers and Components Thereof; Notice of a Commission 
Determination Finding No Violation of the Consent Order; Terminating 
the Enforcement Proceeding; and Remanding Order No. 36

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 bifurcate its review of Order No. 36 from 
its review of the EID in the enforcement proceeding. The Commission has 
determined to affirm the enforcement initial determination (``EID'') 
issued on December 14, 2021, finding no violation of the consent order 
issued in the above-referenced section 337 enforcement investigation 
with the modifications set forth in the accompanying Commission 
opinion. The enforcement proceeding is terminated. The Commission has 
determined to remand Order No. 36 to the Administrative Law Judge 
(``ALJ'') for issuance of a revised order regarding sanctions as set 
forth in the Commission remand order. The Commission will consider 
Order No. 36 in the separate sanctions proceeding.

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#2b6e6f627818634e475b6b5e58425f48054c445d"><span class="__cf_email__" data-cfemail="a4e1e0edf797ecc1c8d4e4d1d7cdd0c78ac3cbd2">[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 
on (202) 205-1810.

SUPPLEMENTARY INFORMATION: On September 8, 2020, the Commission 
instituted the original, underlying investigation based on a complaint 
filed by Regal Beloit America, Inc. of Beloit, Wisconsin (``Regal'' or 
``Complainant''). 85 FR 55491-92 (Sept. 8, 2020). The complaint alleged 
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, or the sale within the United States after importation of 
certain blowers and components thereof by reason of infringement of one 
or more of claims 1, 2, 7-10, and 15 of U.S. Patent No. 8,079,834 
(``the '834 patent''). Id. at 55492. The Commission's notice of 
investigation named as respondents East West Manufacturing, LLC of 
Atlanta, Georgia, and East West Industries of Binh Duong, Vietnam 
(collectively, ``East West'' or ``Respondents''). Id. at 55492. The 
Office of Unfair Import Investigations (``OUII'') did not participate 
as a party in the original investigation. Id.
    On November 12, 2020, the Commission terminated the original 
investigation with respect to Respondents based upon a consent order 
stipulation and entry of a consent order. 85 FR 73511 (Nov. 18, 2020). 
The Consent Order directs East West to ``not sell for importation, 
import or sell after importation the Subject Articles . . . except 
under consent or license from Complainant.'' Consent Order at ] 5. The 
Consent Order defines ``Subject Articles'' as ``certain blowers and 
components thereof that infringe claims 1, 2, 7-10, and 15 of the '834 
Patent.'' Id. at ] 3.
    On January 15, 2021, Regal filed an enforcement complaint at the 
Commission alleging that East West's redesigned blower infringes claims 
1, 2, 7-10, and 15 of the '834 patent in violation of the Consent 
Order. On February 19, 2021, the Commission instituted a formal 
enforcement proceeding, pursuant to Commission

[[Page 15455]]

Rule 210.75(a), to determine whether a violation of the consent order 
issued in the original investigation has occurred and to determine 
what, if any, enforcement measures are appropriate. 86 FR 10335 (Feb. 
19, 2021). The respondents named in the enforcement proceeding are the 
same as the respondents named in the original investigation, i.e., East 
West Manufacturing, LLC of Atlanta, Georgia, and East West Industries 
of Binh Duong, Vietnam. Id. OUII was named as a party in the 
enforcement proceeding. Id.
    On March 1, 2021, East West filed a motion for monetary and other 
sanctions alleging that Regal and its attorneys tampered with and 
misrepresented the accused redesigned blower in the enforcement 
complaint. Regal and OUII filed responses thereto on March 11, 2021, 
and March 18, 2021, respectively. Regal opposed the motion and asked 
for monetary sanctions in its response. The presiding Administrative 
Law Judge (``ALJ'') further permitted the private parties to file 
replies and sur-replies to the sanctions briefing. EID at 16.
    On June 29, 2021, the ALJ issued a Markman Order (Order No. 22), 
styled ``Markman Claim Constructions With Abbreviated Rationales'' 
(Markman Order I). On July 13, 2021, the ALJ issued Order No. 23, 
clarifying Order No. 22.
    The ALJ held an evidentiary hearing from July 20-23, 2021 and 
received post-hearing briefs thereafter. On September 22, 2021, the ALJ 
held a supplemental hearing on the sanctions motion. EID at 18.
    On October 29, 2021, the ALJ issued Order No. 32 (Markman Order 
II), providing extensive explanations as to the adopted constructions 
in Order No. 22.
    On December 14, 2021, the ALJ issued the subject EID finding no 
violation of the Consent Order. The EID found that the parties do not 
contest personal jurisdiction, and that the Commission has in rem 
jurisdiction over the accused products. EID at 19-20. The EID noted 
that the private parties filed a ``Joint Stipulation on Importation and 
Sales,'' describing ``the number of units of the Accused or Redesigned 
Blower that East West imported and sold.'' Id. at 20. The EID found 
that Regal failed to show that East West's redesigned blower infringes 
asserted claims 1, 2, 7-10, and 15 of the '834 patent, and thus failed 
to show a violation of the consent order. See id. at 9-10. The EID 
stated that ``in the event the Commission were to find to the contrary, 
an imposed civil penalty should be de minimus and not the maximum civil 
penalty that Regal has proposed.'' Id. at 10. Specifically, the EID 
recommended that ``East West disgorge its profits plus an additional 
one-half of its profits from any sales that violated the Consent 
Order.'' Id. at 10-11.
    On December 14, 2021, the ALJ also issued Order No. 36 denying East 
West's motion for monetary sanctions. The ALJ issued a public warning 
to Regal, citing the Commission's sanctions authority under Commission 
Rule 210.4(c) and (d), 19 CFR 210.4(c), (d), and ordered Regal to 
correct potentially misleading portions of the enforcement complaint.
    On January 4, 2022, Regal filed a petition for review of the EID, 
and Respondents filed a contingent petition for review of the EID and a 
petition for review of Order No. 36. On January 10, 2022, the parties 
replied to the petitions for review.
    On February 11, 2022, the Commission determined to review the EID 
and Order No. 36. 87 FR 9085-86 (Feb. 17, 2022).
    Pursuant to 19 CFR 210.25, the Commission has determined to 
bifurcate its review of Order No. 36 from its review of the EID. Upon 
review of the parties' submissions, the EID, and the evidence of 
record, the Commission has determined to affirm the EID's finding that 
Regal failed to show that East West violated the Consent Order with the 
modifications set forth in the accompanying Commission opinion. The 
enforcement proceeding is terminated. The Commission has determined to 
remand Order No. 36 to the ALJ for a revised order regarding sanctions 
as set forth in the Commission remand order. The Commission will 
consider Order No. 36 in the separate sanctions proceeding.
    The Commission's vote on this determination took place on March 14, 
2022.
    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 
210).

    By order of the Commission.

    Issued: March 14, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-05713 Filed 3-17-22; 8:45 am]
BILLING CODE 7020-02-P


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