[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Notices]
[Page 19137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06872]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-567 (Advisory Opinion Proceeding 3)]


Certain Foam Footwear; Notice of the Issuance of an Advisory 
Opinion; Termination of the 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 issue an advisory opinion in the above-
captioned investigation. The Commission also terminates the advisory 
opinion proceeding.

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#0441404d57374c6168744471776d70672a636b72"><span class="__cf_email__" data-cfemail="6520212c36562d0009152510160c11064b020a13">[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. 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.
    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, inter alia, a general exclusion order (``GEO''). 76 FR 
43723-24 (July 21, 2011). On March 28, 2020, the '789 patent expired, 
so the GEO is now only directed to articles that infringe one or more 
of claims 1 and 2 of the '858 patent.
    On November 17, 2021, non-respondent, Triple T Trading Ltd. 
(``Triple T'') of Marysville, Washington, petitioned for institution of 
an expedited advisory opinion proceeding to determine whether its 
fleece-lined shoes and shoes with plastic washers are covered by the 
GEO. On November 29, 2021, Crocs opposed Triple T's petition for an 
expedited advisory opinion proceeding. On December 9, 2021, Triple T 
filed a motion for leave to respond to Crocs' opposition. The 
Commission granted that motion.
    On December 17, 2021, the Commission instituted an advisory opinion 
proceeding to determine whether Triple T's fleece-lined shoes or shoes 
with plastic washers fall within the scope of the GEO. 86 FR 72992 
(Dec. 23, 2021). Concurrent with the notice, the Commission ordered 
supplemental information and product samples from Triple T. Comm'n 
Order (Dec. 17, 2021). On January 4, 2022, Triple T submitted its 
response to the Commission Order. Crocs did not reply to Triple T's 
submission.
    Having considered the record evidence including the parties' 
filings, the Commission has determined that Triple T's fleece-lined 
shoes and shoes with permanent plastic washers that prevent all direct 
contact between the strap and the base of the shoe do not fall within 
the scope of the GEO and therefore should not be excluded. The reasons 
for the Commission's determination are set forth in the accompanying 
Advisory Opinion, and the advisory opinion proceeding is hereby 
terminated.
    The Commission vote for this determination took place on March 28, 
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 
part 210.

    By order of the Commission.

    Issued: March 28, 2022.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2022-06872 Filed 3-31-22; 8:45 am]
BILLING CODE 7020-02-P


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