[Federal Register Volume 73, Number 149 (Friday, August 1, 2008)]
[Notices]
[Pages 45073-45074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17665]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-567]


In the Matter of Certain Foam Footwear; Notice of Commission 
Decision To Modify a Final Initial Determination and To Terminate the 
Investigation With a Finding of No Violation of Section 337

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 modify a final initial determination 
(``ID'') of the presiding administrative law judge (``ALJ''). The 
Commission has determined that there is no violation of section 337 in 
the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., 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 are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server at 
http://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.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 May 11, 2006, based on a complaint, as amended, filed by Crocs, Inc. 
(``Crocs'') of Niwot, Colorado. 71 FR 27514 (2006). The amended 
complaint alleges 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''); U.S. 
Patent No. D517,789 (``the `789 patent''); and the Crocs trade dress 
(the image and overall appearance of Crocs-brand footwear). The 
complaint further alleges that an industry in the United States exists 
as required by subsection (a)(2) of section 337. The complaint requests 
that the Commission issue a permanent general exclusion order and 
permanent cease and desist orders. The complaint identifies 11 
respondents that include: (1) Collective Licensing International, LLC 
(``Collective'') of Englewood, Colorado; (2) Double Diamond 
Distribution Ltd. (``Double Diamond'') of Saskatoon, Saskatchewan; (3) 
Effervescent Inc. (``Effervescent'') of Fitchburg, Massachusetts; (4) 
Gen-X Sports, Inc. (``Gen-X Sports'') of Toronto, Ontario; (5) Holey 
Soles Holding Ltd. (``Holey Soles'') of Vancouver, British Columbia; 
(6) Australia Unlimited, Inc. of Seattle, Washington; (7) Cheng's 
Enterprises Inc. of Carlstadt, New Jersey; (8) D. Myers & Sons, Inc. of 
Baltimore, Maryland; (9) Inter-Pacific Trading Corp. of Los Angeles, 
California; (10) Pali Hawaii of Honolulu, Hawaii; and (11) Shaka Shoes 
of Kaliua-Kona, Hawaii. The Commission terminated the investigation as 
to the trade dress allegation on September 11, 2006. A twelfth 
respondent, Old Dominion Footwear, Inc. of Madison Heights, Virginia, 
was added to the investigation on October 10, 2006. All but five 
respondents have been terminated from the investigation on the basis of 
a

[[Page 45074]]

consent order, settlement agreement, or undisputed Commission 
determination of non-infringement. The five remaining respondents are: 
(1) Collective; (2) Double Diamond; (3) Effervescent; (4) Gen-X Sports; 
and (5) Holey Soles.
    On April 11, 2008, the ALJ issued his final ID finding no violation 
of section 337 by the remaining respondents. The Commission extended 
the deadline for determining whether to review the final ID until June 
18, 2008.
    On June 18, 2008, the Commission determined to review-in-part the 
final ID. Particularly, the Commission determined to review: (1) The 
ALJ's findings concerning non-infringement of the `789 patent by the 
respondents' products and lack of satisfaction of the technical prong 
of the domestic industry requirement by Crocs' footwear; and (2) the 
ALJ's finding of invalidity with respect to the `858 patent.
    Having reviewed the record in this investigation, including the 
final ID and the parties' briefing, the Commission has determined to 
modify and clarify parts of the final ID concerning non-infringement 
and lack of satisfaction of the technical prong of the domestic 
industry requirement relating to the `789 patent and invalidity of the 
`858 patent. The Commission affirms the final ID with the modifications 
and clarifications set forth in its separately issued Opinion, and 
terminates the investigation with a finding of no violation of section 
337.
    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 section 210.45 of the Commission's Rules of Practice and Procedure, 
19 CFR 210.45.

    Issued: July 25, 2008.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8-17665 Filed 7-31-08; 8:45 am]
BILLING CODE 7020-02-P