[Federal Register Volume 82, Number 201 (Thursday, October 19, 2017)]
[Notices]
[Pages 48724-48726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22652]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1007, Investigation No. 337-TA-1021 
(Consolidated)]


Certain Personal Transporters, Components Thereof, and Packaging 
and Manuals Therefor and Certain Personal Transporters and Components 
Thereof; Notice of a Commission Determination To Review in Part a Final 
Initial Determination; Schedule for Filing Written Submissions on 
Certain 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 (``the Commission'') has determined to review in part the 
final initial determination (``ID'') issued by the presiding 
administrative law judge (``ALJ'') finding in part a violation of 
section 337 of the Tariff Act of 1930, as amended, in the above-
referenced investigation on August 10, 2017. The Commission requests 
certain briefing from the parties on the issues under review, as 
indicated in this notice. The Commission also requests briefing from 
the parties and interested persons on the issues of remedy, the public 
interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3115. 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 https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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 Inv. No. 337-TA-
1007, Certain Personal Transporters, Components Thereof, and Packaging 
and Manuals Therefor under section 337 of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1337 (``section 337''), on June 24, 2016, based on a 
complaint filed by Segway, Inc. of Bedford, New Hampshire (``Segway''); 
DEKA Products Limited Partnership of Manchester, New Hampshire 
(``DEKA''); and Ninebot (Tianjin) Technology Co., Ltd. of Tianjin, 
China (``Ninebot'') (collectively, ``Complainants''). 81 FR 41342-43 
(Jun. 24, 2016). The complaint alleges a violation of section 337 by 
reason of infringement of certain claims of U.S. Patent Nos. 6,302,230 
(``the '230 patent''); 6,651,763 (``the '763 patent''); 7,023,330 
(``the '330 patent''); 7,275,607 (``the '607 patent''); 7,479,872 
(``the '872 patent''); and 9,188,984 (``the '984 patent''); and U.S. 
Trademark Registration Nos. 2,727,948 and 2,769,942. The named 
respondents for Investigation No. 337-TA-1007 are Inventist, Inc. of 
Camas, Washington; PhunkeeDuck, Inc. of Floral Park, New York; Razor 
USA LLC of Cerritos, California; Swagway LLC of South Bend, Indiana 
(``Swagway''); Segaway of Studio City, California; and Jetson Electric 
Bikes LLC of New York, New York (``Jetson''). The Commission's Office 
of Unfair Import Investigations (``OUII'') was also named as a party to 
this investigation. 81 FR 41342 (Jun. 24, 2016).
    On September 21, 2016, the Commission instituted Inv. No. 337-TA-
1021, Certain Personal Transporters and Components Thereof, based on a 
complaint filed by the same Complainants. 81 FR 64936-37 (Sept. 21, 
2016). The complaint alleges a violation of section 337 by reason of 
infringement of certain claims of U.S. Patent Nos. 6,302,230 and 
7,275,607. The named respondents for Investigation No. 337-TA-1021 are 
Powerboard LLC of Scottsdale, Arizona (``Powerboard''); Metem Teknoloji 
Sistemleri San of Istanbul, Turkey; Changzhou Airwheel Technology Co., 
Ltd. of Jiangsu, China (``Airwheel''); Airwheel of Amsterdam, 
Netherlands; Nanjing Fastwheel Intelligent Technology Co., Ltd. of 
Nanjing, China; Shenzhen Chenduoxing Electronic, Technology Ltd., 
China, a.k.a. C-Star of Shenzhen, China; Hangzhou Chic Intelligent 
Technology Co., Ltd. of Hangzhou, China (``Chic''); Hovershop of 
Placentia, California; Shenzhen Jomo Technology Co., Ltd., a.k.a. 
Koowheel of Shenzhen City, China; Guanghzou Kebye Electronic Technology 
Co., Ltd., a.k.a. Gotway of Shenzhen, China; and Inventist, Inc. of 
Camas, Washington. OUII was also named as a party to this 
investigation. 81 Fed. Reg. 64936 (Sept.

[[Page 48725]]

21, 2016). The Commission directed the presiding ALJ to consolidate 
Inv. Nos. 337-TA-1007 and 337-TA-1021. See id. at 64937.
    Subsequently, the Commission determined not to review an ID finding 
respondents PhunkeeDuck, Inc. and Segaway in default. Order No. 9 
(Sept. 1, 2016) (not reviewed Oct. 3, 2016). The Commission further 
determined not to review an ID granting complainants' corrected motion 
to amend the complaint and notice of investigation to assert the '763, 
'330, and '872 patents against respondent Jetson Electric Bikes LLC, 
and to terminate the investigation with respect to all asserted claims 
of the '984 patent as to all respondents. Order No. 17 (Nov. 14, 2016) 
(not reviewed Dec. 7, 2016). The Commission also determined not to 
review an ID terminating the investigation as to respondent Nanjing 
Fastwheel Intelligent Technology Co., Ltd. based on a Consent Order 
Stipulation. Order No. 18 (Nov. 15, 2016) (not reviewed Dec. 7, 2016).
    The Commission likewise determined not to review an ID granting a 
motion to terminate the investigation as to the '763 patent. Order No. 
19 (Dec. 16, 2016) (not reviewed Jan. 10, 2017). The Commission further 
determined not to review an ID finding respondents Shenzhen Chenduoxing 
Electronic, Technology Ltd., China, a.k.a. C-Star; Shenzhen Jomo 
Technology Co., Ltd., a.k.a. Koowheel; Guanghzou Kebye Electronic 
Technology Co., Ltd., a.k.a. Gotway; Metem Teknoloji Sistemleri San; 
and Airwheel Netherlands in default. Order No. 22 (Jan. 9, 2017) (not 
reviewed Feb. 7, 2017). The Commission also determined not to review an 
ID terminating this investigation with respect to all asserted claims 
of the `330 patent and the `872 patent as to all respondents. See Order 
No. 24 (Jan. 10, 2017) (not reviewed Feb. 7, 2017).
    Furthermore, the Commission determined to review an ID terminating 
respondent Inventist, Inc. in this investigation based on a Consent 
Order Stipulation and proposed Consent Order. Order No. 25 (Jan. 31, 
2017) (Notice of Review issued Feb. 22, 2017 (``Notice of Review'')). 
The Commission requested corrections to be made in the proposed Consent 
Order. See Notice of Review at 2. The corrected Consent Order was filed 
with the Commission on February 27, 2017. The Commission determined to 
affirm Order No. 25, and terminated the investigation as to Inventist 
and issued a Consent Order on October 12, 2017.
    The Commission also determined not to review an ID to terminate 
this investigation as to Razor USA, LLC based on a Settlement Agreement 
and Release. Order No. 28 (Mar. 22, 2017) (not reviewed Apr. 24, 2017). 
Also, the Commission determined not to review an ID granting 
Complainants' motion for summary determination concerning the technical 
prong of the domestic industry requirement with respect to the asserted 
trademarks. Order No. 32 (Apr. 6, 2017) (not reviewed May 9, 2017). 
Finally, the Commission determined not to review an ID granting 
Complainants' motion to terminate the investigation as to respondent 
Hovershop for good cause. See Order No. 34 (Apr. 13, 2017) (not 
reviewed May 15, 2017).
    As a result, the following two patents (and 13 claims) and two 
trademarks remain at issue in this investigation: Claims 1, 3-5, and 7 
of the `230 patent; claims 1-4 and 6 of the `607 patent; U.S. Trademark 
Registration No. 2,727,948; and U.S. Trademark Registration No. 
2,769,942. The following respondents participated in the evidentiary 
hearing and remain in the investigation: Airwheel, Chic, Jetson, 
Powerboard, and Swagway.
    The evidentiary hearing on the question of violation of section 337 
was held from April 18 through April 21, 2017. The final ID finding in 
part a violation of section 337 was issued on August 10, 2017. The ALJ 
issued his recommended determination on remedy, the public interest and 
bonding on August 22, 2017. The ALJ recommended that if the Commission 
finds a violation of section 337 in the present investigation, the 
Commission should: (1) Issue a general exclusion order (``GEO'') 
covering accused products found to infringe the asserted patents; (2) 
issue a limited exclusion order (``LEO'') covering accused products 
found to infringe the asserted patents if the Commission does not issue 
a GEO; (3) issue an LEO covering accused products found to infringe the 
asserted trademarks; (4) issue cease and desist orders; and (5) not 
require a bond during the Presidential review period. RD at 1-2; 18. No 
public interest statements were filed by the public in this 
investigation.
    All parties to this investigation that participated in the 
evidentiary hearing (with the exception of respondent Powerboard) filed 
timely petitions for review of various portions of the final ID. The 
parties likewise filed timely responses to the petitions.
    On September 11, 2017, Complainants filed a ``Request For 
Acceptance of Memorandum Correcting Misstatements of the Record Found 
In Respondents Chic's and Airwheel's Oppositions and OUII'S Response to 
Complainant's Petition For Review'' (``Request''). The IA and 
Respondents Chic and Airwheel filed timely responsive pleadings 
opposing Complainants' Request. The Commission notes that no such 
further briefing is normally permitted, and that in any event it can 
resolve the relevant facts from the established record in this 
Investigation without additional briefing from Complainants or any 
other party in determining whether to review the final ID. Accordingly, 
Complainants' Request is denied.
    Having examined the record in this investigation, including the 
final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the final ID in part. In 
particular, the Commission has determined as follows:
    (1) To review the ID's determination that the claim term ``maximum 
operating velocity'' should be construed to mean ``a variable maximum 
velocity where adequate acceleration potential is available to enable 
balance and control of the vehicle,'' see ID at 44;
    (2) to review the ID's determination that ``nothing in the plain 
language of the disputed limitation [`the motorized drive arrangement 
causing, when powered, automatically balanced operation of the system'] 
from claim 1 of the '230 patent requires the operation by a rider. The 
claim only requires the `motorized drive arrangement causing, when 
powered, automatically balanced operation of the system,' '' see ID at 
82;
    (3) to review the ID's infringement, validity, and domestic 
industry (technical prong) determinations pertaining to the '230 
patent;
    (4) to review the instances in the ID that refer to a disclaimer of 
``manual input'' with respect to the '607 patent. On review, the 
Commission finds that this disclaimer is actually a disclaimer of 
``manual input via joystick.'' The Commission notes that the ID uses 
these terms interchangeably and determines not to review any other 
portion of the ID's analysis or findings pertaining to this disclaimer. 
The Commission's analysis on this issue will be provided in our 
opinion, which will issue upon conclusion of the investigations;
    (5) to review the ID's finding with respect to actual confusion 
regarding the SWAGWAY mark, see ID at 171-72.
    In addition, the Commission has determined to correct two 
typographical errors: In the first line of the last paragraph on page 
170 ``the Swagway `trademark'' is replaced with ``the Segway 
`trademark''; and in the first line on page 171 ```Swagway''' is 
replaced with ```Segway'''.
    The Commission has determined not to review the remainder of the 
ID.

[[Page 48726]]

    The parties are requested to brief their positions on only the 
following issues, with reference to the applicable law and the 
evidentiary record:
    1. The ID determined with respect to the '230 patent that ``the 
claim term `maximum operating velocity' should be construed to mean `a 
variable maximum velocity where adequate acceleration potential is 
available to enable balance and control of the vehicle.' '' ID at 44.
    a. Does intrinsic evidence support the ID's above determination?
    b. Does extrinsic evidence support the ID's above determination?
    2. The ID determined with respect to the `230 patent that ``nothing 
in the plain language of the disputed limitation [`the motorized drive 
arrangement causing, when powered, automatically balanced operation of 
the system'] from claim 1 of the `230 patent requires the operation by 
a rider. The claim only requires the `motorized drive arrangement 
causing, when powered, automatically balanced operation of the system.' 
'' ID at 82.
    a. Does intrinsic evidence support the ID's above determination?
    b. Does extrinsic evidence support the ID's above determination?
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue one or more 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, including against 
the defaulted respondents. 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 are 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).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
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 
or disapprove the Commission's action. 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.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review. The submissions 
should be concise and thoroughly referenced to the record in this 
investigation. 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 
on remedy, the public interest and bonding issued on August 22, 2017, 
by the ALJ and the appropriate remedy for the respondents previously 
found in default. Complainants and the Commission investigative 
attorney are also requested to submit proposed remedial orders for the 
Commission's consideration.
    Complainants are further requested to provide the expiration date 
of the `230 patent, the HTSUS numbers under which the accused articles 
are imported, and any known importers of the accused products. The 
written submissions and proposed remedial orders must be filed no later 
than the close of business on October 30, 2017. Reply submissions must 
be filed no later than the close of business on November 6, 2017. 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 stated above and submit 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to section 210.4(f) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.4(f)). Submissions should refer to the 
investigation number (`` `Inv. No. 337-TA-1007,' `Investigation No. 
337-TA-1021' (Consolidated))'' in a prominent place on the cover page 
and/or the first page. (See Handbook for Electronic Filing Procedures, 
http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronicfiling.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. 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 non-confidential written submissions will be available 
for public inspection at the Office of the Secretary and on EDIS.
    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: October 13, 2017.
Jessica Mullan,
Attorney Advisor.
[FR Doc. 2017-22652 Filed 10-18-17; 8:45 am]
 BILLING CODE 7020-02-P