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[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Notices]
[Pages 95233-95235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28146]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1369]

Certain Icemaking Machines and Components Thereof; Notice of a 
Commission Determination To Review a Final Initial Determination 
Finding a Violation of Section 337; Request for Written Submissions on 
the Issues Under Review and on Remedy, the Public Interest, and 
Bonding; Extension of the 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 (``Commission'') has determined to review a final initial 
determination (``ID'') of the chief administrative law judge 
(``CALJ''), finding a violation of section 337 in this investigation. 
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. The Commission has also determined to extend the target date for 
completion of this investigation to February 13, 2025.

FOR FURTHER INFORMATION CONTACT: Benjamin S. Richards, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street 
SW, Washington, DC 20436, telephone (202) 708-5453. 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 August 16, 2023, the Commission 
instituted this investigation based on a complaint filed by Hoshizaki 
America, Inc. of Peachtree City, Georgia (``Hoshizaki''). 88 FR 55721-
22 (Aug. 16, 2023). The complaint alleges 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, or the 
sale within the United States after importation of certain icemaking 
machines and components thereof by reason of the infringement of one or 
more of claims 1-3, 6-8, and 11-20 of U.S. Patent No. 10,107,538 (``the 
'538 patent''); claims 1-4, 10-13, and 16 of U.S. Patent No. 10,113,785 
(``the '785 patent''); and claims 1, 2, 5-9, and 11-14 of U.S. Patent 
No. 10,458,692 (``the '692 patent''). Id. at 5572. The Commission's 
notice of investigation named as respondents Blue Air FSE LLC of 
Gardena, California; and Bluenix Co., Ltd. of Gyeonggi-do, Republic of 
Korea (collectively, ``Bluenix''). The Office of Unfair Import 
Investigations was also named as a party in this investigation, but 
ceased participating on October 13, 2023. Id.; see also EDIS Doc. ID 
805894.
    The CALJ issued IDs terminating the following claims from the 
investigation at Hoshizaki's request: claims 2, 8, 11-18, and 20 of the 
'538 patent; claims 2-4, 11-13, and 16 of the '785 patent; and claims 
2, 6-8, and 11-14 of the '692 patent. Order No. 9 (Dec. 19, 2023), 
unreviewed, Comm'n Notice, EDIS Doc. ID 811832 (Jan. 11, 2024); Order 
No. 15 (Apr. 8, 2024), unreviewed, Comm'n Notice, EDIS Doc. ID 819782 
(Apr. 26, 2024).
    On April 25, 2024, the CALJ issued an ID granting Hoshizaki's 
unopposed motion for summary determination that Hoshizaki satisfied the 
domestic industry requirement. Order No. 16 (Apr. 25, 2024). The 
Commission reviewed and then affirmed that ID. Comm'n Notice, EDIS Doc. 
ID 822414 (May 29, 2024).
    The CALJ conducted an evidentiary hearing from May 6, 2024, through 
May 10, 2024.
    On August 30, 2024, the CALJ issued his final ID on violation. That 
ID found that a violation of section 337 had occurred in the 
importation into the United States, the sale for importation, or the 
sale within the United States after importation of certain icemaking 
machines and components thereof that infringe certain claims of the 
'538, '785, and '692 patents. On September 16, 2024, Bluenix filed a 
petition for review of the ID, and Hoshizaki filed a contingent 
petition for review of the ID. On September 23, 2024, Bluenix filed a 
response to Hoshizaki's contingent petition for review. On September 
24, 2024, Hoshizaki filed a response to Bluenix's petition for review.
    Having reviewed the record of the investigation, including the 
final ID, the parties' submissions to the CALJ, the evidentiary record, 
and the parties' petitions for review and responses thereto, the 
Commission has determined to review the ID in part. Specifically, the 
Commission has determined to review the ID's infringement findings for 
the '785 and '692 patents.
    In connection with its review, the Commission requests responses to 
the following questions. The parties are requested to brief their 
positions with reference to the applicable law and the existing 
evidentiary record.
    (1) For the '785 and '692 patents, please address whether the 
``function'' of the ``inner flat portion'' limitation for purposes of 
the doctrine of equivalents analysis should include the overall 
function of making ice or be more narrowly defined to just the 
separation of active and passive cavities. As a legal matter, should 
the doctrine of equivalents analysis focus on the specific function of 
the claim limitation or the overall function of the claimed invention? 
See AquaTex Indus., Inc. v. Techniche Sols., 479 F.3d 1320, 1326-27 
(Fed. Cir. 2007) (finding error where the identified function of 
promoting evaporation was for the filler layer as a whole rather than 
the specific function of the ``fiberfill batting material'' 
limitation). As a factual matter, please address what role, if any, the 
inner flat portions play with respect to the formation and harvesting 
of ice in the claimed invention. See, e.g., '785 patent at 5:23-27 
(``The degree to which ice extends over the inner flat portions 30

[[Page 95234]]

and the adjacent second protrusions 38 is determined, at least in part, 
by the length of time that water is applied to the front and rear 
plates 14, 16 during the ice forming cycle.'').
    (2) Please address whether the difference between an inner flat 
portion (as claimed) and a slightly curved inner portion (as found in 
the accused products) will affect the ``way'' in which ice is formed 
(i.e., by preventing the formation of ``boundary layers,'' or due to 
less surface area of contact between the plates and the water that 
forms ice during the cooling and harvesting cycles, or due to the shape 
of the surrounding tubing coil). See RRB at 18-20.
    (3) Please address the ``result'' that should be considered for 
purposes of the doctrine of equivalents analysis, e.g., the efficiency 
of the icemaking process or the quantity or quality of ice produced 
from the icemaking machine. Please address whether the difference 
between an inner flat portion (as claimed) and a slightly curved inner 
portion (as found in the accused products) will affect that result.
    (4) Assuming that the icemaking function should be considered in 
determining equivalency, please address the expert testimony and other 
supporting evidence for or against your positions in response to the 
questions above (and in particular why the final ID found Dr. Tanbour's 
testimony to be more credible than Bluenix's expert). See ID at 72 
n.20.
    (5) Please address any evidence of record indicating what 
constitutes ``slightly curved inner portions'' in the accused products 
as characterized in the ID. ID at 69. Will the degree of curvature of 
the inner portion make a difference in an assessment of whether an 
accused product is equivalent to the claimed ``inner flat portion''?
    (6) For purposes of applying the function-way-result test for 
equivalence, if you contend that that function of the claimed ``inner 
flat portions'' is something other than ``separat[ing] active and 
passive cavities, which are, in turn, interspersed so as to define ice 
forming sites,'' ID at 70, indicate whether and where you raised that 
contention in the post-hearing briefing before the CALJ. Similarly, 
indicate whether and where you raised that contention in your petition 
for review of the ID. If you did not contend before the CALJ or in a 
petition for review that the function of the ``inner flat portions'' is 
something other than the function identified in the ID, explain why 
that contention has or has not now been forfeited, waived, or 
abandoned.
    (7) Do you contend that the asserted claims of the '785 and '692 
patents are limited to evaporators comprising oval-shaped refrigerant 
conduits? If so, explain where that limitation appears in the '785 and 
'692 patents.
    (8) Do you contend that the asserted claims of the '785 and '692 
patents limit the surface area of the claimed ``inner flat portions'' 
to a particular size or range of sizes? If so, explain where that 
limitation appears in the '785 and '692 patents.
    (9) Do you contend that the asserted claims of the '785 and '692 
patents are limited to evaporators that meet a certain efficiency 
threshold? If so, explain where that limitation appears in the '785 and 
'692 patents.
    (10) Do you contend that the evaporators claimed in the asserted 
claims of the '785 and '692 patents are limited to the dimensions shown 
in figure 2 of those patents? If so, explain why your contention is not 
in conflict with Hockerson-Halberstadt, Inc. v. Avia Grp. Int'l, Inc., 
222 F.3d 951, 956 (Fed. Cir. 2000) (``[I]t is well established that 
patent drawings do not define the precise proportions of the elements 
and may not be relied on to show particular sizes if the specification 
is completely silent on the issue.'').
    (11) In testifying regarding a lack of equivalence between the 
claimed ``inner flat portions'' of the '785 and '692 patents and the 
accused structures in the accused products, see tr. 521:2-526:13, did 
Bluenix's expert witness treat the dimensions shown in figure 2 of the 
'785 and '692 patents as limiting?
    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.
    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).
    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/or 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 to the investigation are requested 
to file written submissions on the issues 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 CALJ on 
remedy and bonding.
    In its initial submission, Complainant is also requested to 
identify the remedy sought and 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 and proposed remedial orders must be filed no later than 
close of business on December 9, 2024. Reply submissions must be filed 
no later than the close of business on December 16, 2024. No further

[[Page 95235]]

submissions on these issues will be permitted unless otherwise ordered 
by the Commission. Opening submissions are limited to 75 pages. Reply 
submissions are limited to 60 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-1369) 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 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 also determined to extend the target date for 
completion of this investigation to February 13, 2025.
    The Commission vote for this determination took place on November 
25, 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 25, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-28146 Filed 11-29-24; 8:45 am]
BILLING CODE 7020-02-P
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