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[Federal Register Volume 90, Number 6 (Friday, January 10, 2025)]
[Notices]
[Page 2023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00322]

[[Page 2023]]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1203 (Rescission)]

Certain Rolled-Edge Rigid Plastic Food Trays; Notice of 
Commission Determination to Institute a Rescission Proceeding and to 
Temporarily Suspend a Limited Exclusion Order

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to institute a rescission proceeding and to 
temporarily suspend enforcement of a limited exclusion order (``LEO'') 
issued in the underlying investigation.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-5468. 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 
on (202) 205-1810.

SUPPLEMENTARY INFORMATION: On June 23, 2020, the Commission instituted 
this investigation based on a complaint filed on behalf of Clearly 
Clean Products, LLC of South Windsor, Connecticut, and Converter 
Manufacturing, LLC of Orwigsburg, Pennsylvania (together, 
``Complainants''). 85 FR 37689-90 (Jun. 23, 2020). The complaint 
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 rolled-edge rigid plastic food trays that 
infringe claim 9 of U.S. Patent No. 9,908,281 (``the '281 patent'') and 
claims 1, 12, 20, and 21 of U.S. Patent No. 10,562,680 (``the '680 
patent''). Id. at 37689-90. The complaint also alleged that a domestic 
industry exists. Id. at 37689. The Commission's notice of investigation 
names as respondents Eco Food Pak (USA), Inc. of Chino, California 
(``Eco Food Pak''), and Ningbo Linhua Plastic Co., Ltd. of Xiwu, China 
(``Ningbo Linhua Plastic''). Id. at 37690. The Office of Unfair Import 
Investigations participated in this investigation. Id.
    The investigation was terminated with respect to Eco Food Pak based 
on the entry of a consent order. Order No. 6 (Oct. 1, 2020), unreviewed 
by Comm'n Notice (Oct. 20, 2020).
    On October 6, 2020, the Commission found Ningbo Linhua Plastic in 
default for failing to respond to the complaint, the notice of 
investigation, and an order to show cause why it should not be found in 
default. Order No. 7 (Oct. 6, 2020), unreviewed by Comm'n Notice (Oct. 
20, 2020). On February 25, 2021, the Commission issued a LEO against 
Ningbo Linhua Plastic with respect to claims claim 9 of the '281 patent 
and claims 1, 12, 20, and 21 of the '680 patent, and terminated the 
investigation.
    On December 4, 2024, Ningbo Linhua Plastic filed a petition to 
rescind the LEO because the subject patent claims were found 
unpatentable by the United States Patent and Trademark Office's 
(``USPTO'') Patent Trial and Appeal Board (``PTAB''). Ningbo Linhua 
Plastic provided the PTAB's final written decisions that found, inter 
alia, that claim 9 of the '281 patent and claims 1, 12, 20, and 21 of 
the '680 patent are unpatentable, as well as the U.S. Court of Appeals 
for the Federal Circuit's affirmances of those final written decisions 
and denials of en banc review. Ningbo Linhua Plastic asserts that the 
unpatentability of the patent claims in the limited exclusion order is 
now final and unappealable, and constitutes a changed circumstance that 
warrants recission of the limited exclusion order pursuant to 35 U.S.C. 
1337(k)(1) and 19 CFR 210.76.
    On December 13, 2024, Complainants filed a response opposing the 
rescission of the LEO. Complainants argue that patent claims are valid 
until the USPTO cancels the claims, which cannot occur until after the 
time of filing for a writ of certiorari expires or the completion of a 
U.S. Supreme Court appeal. Complainants state that Converter 
Manufacturing LLC intends to seek a writ of certiorari for U.S. Supreme 
Court review of the appeal prior to the February 10, 2025 deadline.
    Having reviewed Ningbo Linhua Plastic's petition seeking to rescind 
the LEO and Complainants' response, the Commission has determined to 
institute a recission proceeding. Based on the Federal Circuit's 
summary affirmance of the PTAB's final written decisions regarding the 
invalidity of the LEO's subject claims and its denial of Complainant's 
petition for rehearing en banc, the Commission finds that the 
conditions which led to the LEO no longer exist, and are unlikely to be 
reinstated, under 19 U.S.C. 1337(k)(1) and (2)(B). The Commission also 
finds that the requirements of Commission Rule 210.76(a) (19 CFR 
210.76(a)) are satisfied. Because the LEO's patent claims are still 
subject to U.S. Supreme Court appeal, the Commission has determined to 
grant partial relief and to temporarily suspend enforcement of the LEO 
pending the cancellation of its subject patent claims or the reversal 
or vacatur of the Federal Circuit's decisions. The Commission Order 
issued concurrently herewith temporarily suspends enforcement of the 
LEO.
    The Commission has determined that no other actions are necessary 
at this time, so the rescission proceeding remains pending, and the 
parties are instructed to keep the Commission apprised of any 
significant developments on appeal or at the USPTO.
    The Commission vote for this determination took place on January 3, 
2025.
    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: January 3, 2025.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2025-00322 Filed 1-8-25; 8:45 am]
BILLING CODE 7020-02-P
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