[Federal Register Volume 86, Number 102 (Friday, May 28, 2021)]
[Notices]
[Pages 28890-28893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11299]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1194]


Certain High-Density Fiber Optic Equipment and Components 
Thereof; Commission Determination To Review in Part 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

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 (``ID'') issued by the presiding administrative law judge 
(``ALJ''), finding a violation of section 337 of the Tariff Act of 
1930. The Commission requests written submissions from the parties on 
the issues under review and submissions from the parties, interested 
government agencies, and interested persons on the issues of remedy, 
the public interest, and bonding, under the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Cathy Chen, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone 202-205-2392. 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#8dc8c9c4debec5e8e1fdcdf8fee4f9eea3eae2fb"><span class="__cf_email__" data-cfemail="c386878a90f08ba6afb383b6b0aab7a0eda4acb5">[email protected]</span></a>. General information concerning the Commission

[[Page 28891]]

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: The Commission instituted this investigation 
on March 24, 2020, based on a complaint filed on behalf of Corning 
Optical Communications LLC (``Corning'') of Charlotte, North Carolina. 
85 FR 16653 (Mar. 24, 2020). The complaint, as supplemented, 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 high-density fiber optic equipment and components thereof by 
reason of infringement of certain claims of U.S. Patent Nos. 9,020,320 
(``the '320 patent''); 10,120,153 (``the '153 patent''); 8,712,206 
(``the '206 patent''); 10,094,996 (``the '996 patent''); and 10,444,456 
(``the '456 patent''). Id. The complaint further alleged that a 
domestic industry exists. Id. The Commission's notice of investigation 
named the following as respondents: Total Cable Solutions, Inc. 
(``TCS'') of Springboro, Ohio; Legrand North America, LLC (``Legrand'') 
of West Hartford, Connecticut; AFL Telecommunications Holdings LLC 
(``AFL Holdings'') of Duncan, South Carolina; Huber+Suhner AG of 
Herisau, Switzerland; Huber + Suhner, Inc. of Charlotte, North 
Carolina; Shenzhen Anfkom Telecom Co., Ltd. d/b/a Anfkom Telecom 
(``Anfkom'') of Shenzhen, China; Shanghai TARLUZ Telecom Tech. Co., 
Ltd. d/b/a TARLUZ (``TARLUZ'') of Shanghai, China; Wulei Technology 
Co., Ltd. d/b/a Bonelinks (``Wulei Bonelinks'') of Shenzhen, China; 
FS.com Inc. (``FS'') of New Castle, Delaware; Leviton Manufacturing 
Co., Inc. (``Leviton'') of Melville, New York; Panduit Corporation 
(``Panduit'') of Tinley, Illinois; The LAN Wirewerks Research 
Laboratories Inc. d/b/a Wirewerks (``Wirewerks'') of Quebec, Canada; 
and The Siemon Company (``Siemon'') of Watertown, Connecticut. Id. The 
notice of investigation also names the Office of Unfair Import 
Investigations (``OUII'') as a party. Id. at 16654.
    Respondent Legrand was terminated from the investigation based on 
withdrawal of allegations in the complaint pursuant to Commission Rule 
210.21(a), 19 CFR 210.21(a). See Order No. 5 (Apr. 16, 2020); 
unreviewed by Comm'n Notice (May 7, 2020). The complaint and notice of 
investigation were amended to substitute AFL Telecommunications LLC for 
respondent AFL Holdings. 85 FR 44923 (July 24, 2020). Thereafter, 
Respondent AFL Telecommunications LLC was terminated from the 
investigation based on a settlement agreement. See Order No. 27 (Oct. 
20, 2020), unreviewed by Comm'n Notice (Nov. 2, 2020). Respondents 
Huber + Suhner AG, Huber + Suhner, Inc., Anfkom, TARLUZ, and Wulei 
Bonelinks (collectively, ``Defaulting Respondents'') were found in 
default pursuant to Commission Rule 210.16, 19 CFR 210.16. See Order 
Nos. 7 & 8 (June 9, 2020), unreviewed by Comm'n Notice (June 22, 2020); 
Order No. 13 (Aug. 21, 2020), unreviewed by Comm'n Notice (Sep. 15, 
2020). Respondent TCS was terminated from the investigation based on 
consent. See Comm'n Notice (Sept. 28, 2020). Accordingly, Respondents 
Panduit, Leviton, Siemon, FS, and Wirewerks (collectively, ``Active 
Respondents'') remain active in the investigation.
    As a result of termination of all asserted claims of the '996 
patent and certain other asserted claims, see Order No. 11 (July 29, 
2020), unreviewed by Comm'n Notice (Aug. 13, 2020); Order No. 18 (Sept. 
14, 2020), unreviewed by Comm'n Notice (Oct. 14, 2020); and Order No. 
19 (Oct. 2, 2020), unreviewed by Comm'n Notice (Oct. 27, 2020), claims 
1 and 3 of the '320 patent; claims 11, 12, 14-16, 19, 21, 27, and 28 of 
the '456 patent; claims 9, 16, 23, and 26 of the '153 patent; and 
claims 22 and 23 of the '206 patent remain asserted in the 
investigation.
    A prehearing conference and evidentiary hearing were held in this 
investigation from October 21-26, 2020.
    On March 23, 2021, the ALJ issued his final ID, finding a violation 
of section 337 with respect to claims 1 and 3 of the '320 patent; 
claims 11, 12, 14-16, 19, 21, 27, and 28 of the '456 patent; claims 9, 
16, 23, and 26 of the '153 patent; and claims 22 and 23 of the '206 
patent. The ID also found the Active Respondents have not shown that 
any of the asserted patent claims are invalid. The ID further found 
that the economic prong of the domestic industry requirement has been 
satisfied with respect to all the asserted patents under section 
337(a)(3)(B) and (C).
    On April 5, 2021, OUII and Respondent Leviton each filed a petition 
for review of the ID. That same day, Respondents FS, Panduit, 
Wirewerks, and Siemon (collectively, ``Joint Respondents'') also filed 
a joint petition for review. On April 13, 2021, OUII, Leviton, the 
Joint Respondents, and Complainant Corning each filed a response to the 
petitions.
    Having reviewed the record of the investigation, including the 
final ID, the parties' submissions to the ALJ, the petitions for 
review, and the responses thereto, the Commission has determined to 
review the ID in part. Specifically, the Commission has determined to 
review: (1) The ID's finding that the importation requirement of 
section 337 is met with respect to the accused products of Respondents 
Leviton, Panduit, and Siemon; (2) the ID's interpretation of the 
``width of the front side of [the] fiber optic module'' limitation in 
the asserted claims of the '456 patent, and the associated infringement 
findings; (3) the ID's construction of ``a front opening'' in the 
asserted claims of the '206 patent, and the associated infringement 
findings; (4) the ID's finding that Leviton directly infringes the 
asserted claims of the '320 and '456 patents; (5) the ID's findings on 
indirect infringement of the asserted claims of the '320, '456, and/or 
'153 patents by the accused products of Respondents Leviton, Panduit, 
FS, and Siemon; and (6) the ID's finding that Corning has satisfied the 
economic prong of the domestic industry requirement under section 
337(a)(3)(B) and (C). The Commission has determined not to review any 
other findings presented in the final ID.
    In connection with its review, 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. To determine whether an imported article, which does not satisfy 
all elements of an asserted patent claim, is an ``article that 
infringes'' within the meaning of section 337 when the respondent-
importer uses the imported article to directly infringe the asserted 
patent claim after importation:
    a. Would it be appropriate for the Commission to consider whether 
there is a sufficient nexus between the imported article and the 
alleged unfair acts?
    b. Would it be appropriate for the Commission to consider the 
following factors: (i) Whether the imported article is a material part 
of the claimed invention, (ii) whether it is especially designed and/or 
configured for use in an infringing manner, (iii) whether it has 
substantial noninfringing uses, and (iv) the extent to which it is 
modified or combined with other articles after importation?
    Please consider the applicable Court and Commission precedent, 
including Suprema, Inc. v. International Trade

[[Page 28892]]

Comm'n, 796 F.3d 1338 (Fed. Cir. 2015), and please apply your analysis 
to the facts of this investigation with respect to Leviton's alleged 
direct infringement of the asserted claims of the '320 and '456 
patents.
    2. With regard to Leviton, please address with citation to the 
record whether any of the U.S.-sourced parts and assembly steps in the 
United States for Leviton's enclosures relate to the claims asserted 
against Leviton.
    3. Please provide citation to any record evidence of sales of the 
accused products by Leviton, Panduit, Siemon, or FS. In addition, 
please discuss the relevance, if any, of such sales in determining 
whether there is direct infringement of the '320, '456, and/or '153 
patents by third-parties.
    4. With citation to the record evidence please discuss whether 
there are any non-infringing uses of the accused products that provide 
at least 98 fiber optic connections per 1U space as required by claim 1 
of the '320 patent or at least 144 fiber optic connections per 1U space 
required by claim 3 of the '320 patent. In addition, please discuss the 
relevance, if any, of such noninfringing uses in assessing the 
knowledge requirement for inducement by Leviton, Panduit, Siemon, and 
FS and in determining whether there is direct infringement of the '320, 
'456, and/or '153 patents by third-parties.
    5. Does the record evidence show that Leviton, Panduit, Siemon, and 
FS copied Corning's EDGE products, including designing and developing 
their accused products to support the same high fiber density as 
Corning's EDGE products and with the goal of capturing EDGE's customers 
and the same segment of the market?
    6. Please address whether the domestic industry investments 
constitute investments in the ``exploitation'' of the asserted patents 
under Section 337(a)(3)(C). See Certain Integrated Circuit Chips and 
Products Containing the Same, Inv. No. 337-TA-859, Comm'n Op., 2014 WL 
12796437 (Aug. 22, 2014).
    7. The Federal Circuit has stated that section 337 does not protect 
mere importers. See, e.g., Schaper Mfg. Co. v. Int'l Trade Comm'n, 717 
F.2d 1368, 1372-73 (Fed. Cir. 1983). Please explain whether 
Complainant's asserted domestic industry differs from that of a mere 
importer, including by discussing: (A) How the Commission and the 
Federal Circuit have considered such investments in prior 
investigations, and (B) how the facts of this investigation should be 
assessed in light of applicable precedent. Also address the extent to 
which the activities relied upon to show satisfaction of the economic 
prong (e.g., field engineering and Pioneer-related expenses) need to 
take place in the United States either as a legal or a practical 
matter, such that those activities would not distinguish a domestic 
industry from a mere importer.
    8. Please address whether and to what extent Schaper Mfg. Co. v. 
Int'l Trade Comm'n, 717 F.2d 1368, 1372-73 (Fed. Cir. 1983), should 
continue to guide the Commission's analysis in light of changes to the 
law and Commission and Federal Circuit precedents since 1983 and the 
legislative history associated with the 1988 amendments to section 337 
discussing the ``inconsistent and unduly narrow'' view of domestic 
industry reflected in certain pre-1988 Commission decisions and 
specifically citing as an example the Commission's decision in Certain 
Miniature, Battery-Operated, All Terrain, Wheeled Vehicles, Inv. No. 
337-TA-122. See, e.g., Certain Solid State Storage Drives, Stacked 
Electronics Components, and Products Containing the Same, Inv. No. 337-
TA-1097, Commission Op. at 9, n.6 (June 29, 2018).
    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 a cease and desist order 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. 
The parties' opening submissions should not exceed 80 pages, and their 
reply submissions should not exceed 50 pages. 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 their initial submissions, 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 and proposed remedial 
orders must be filed no later than close of business on Monday, June 7, 
2021. Reply submissions must be filed no later than the close of 
business on Monday, June 14, 2021. No further submissions on 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

[[Page 28893]]

stated above. The Commission's paper filing requirements in 19 CFR 
210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). 
Submissions should refer to the investigation number (Inv. No. 337-TA-
1194) 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. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. A 
redacted non-confidential version of the document must also be filed 
simultaneously with 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 vote for this determination took place on May 24, 
2021.
    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: May 24, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-11299 Filed 5-27-21; 8:45 am]
BILLING CODE 7020-02-P


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