58819
`Federal Register/Vol. 87, No. 187/Wednesday, September 28, 2022 / Notices
`
`respondto a collection of information
`unless it displays a currently valid OMB
`control number.
`The authority for this action is the
`Paperwork Reduction Act of 1995 (44
`U.S.G. 3501 et seq).
`Steven Mullen,
`Information Collection Clearance Officer,
`Office ofRegulatory Affairs and Collaborative
`Action—Indian Affairs.
`[FR Doc. 2022-21028 Filed 9-27-22; 8:45 am]
`BILLING CODE 4337-15-P
`
`INTERNATIONAL TRADE
`COMMISSION
`
`[Investigation No. 337-TA-1266]
`
`Certain Wearable Electronic Devices
`With ECG Functionality and
`Components Thereof; Notice of a
`Commission Determination To Review
`in Part a FinalInitial Determination
`Finding a Violation of Section 337;
`Requestfor Written Submissions on
`the Issues Under Review and on
`Remedy, the Public Interest, and
`Bonding; Extensionof the Target Date
`AGENCY:U.S. International Trade
`Commission.
`ACTION: Notice.
`
`SUMMARY:Notice is hereby given that
`the U.S. International Trade
`Commission (“‘Commission’’) has
`determinedto review in part a final
`initial determination (“‘ID’’) of the
`presiding administrative law judge
`(“ALJ”), finding a violation of section
`337 as to two of the three asserted
`patents. The Commission requests
`written submissions from the parties on
`the issues under review and 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.
`FOR FURTHER INFORMATION CONTACT:
`Panyin A. Hughes, Office of the General
`Counsel, U.S. International Trade
`Commission, 500 E Street SW,
`Washington, DC 20436, telephone (202)
`205-3042. 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
`EDIS3Help@usitc.gov. General
`information concerning the Commission
`mayalso be obtained by accessingits
`internet server at hitps://www.usitc.gov.
`Hearing-impaired personsare advised
`that information on this matter can be
`obtained by contacting the
`
`Commission’s TDD terminal on (202)
`205-1810.
`
`SUPPLEMENTARYINFORMATION: On May
`26, 2021, the Commission instituted this
`investigation based on a complaint filed
`by AliveCor, Inc. of Mountain View,
`California (‘‘AliveCor’’). 86 FR 28382
`(May 26, 2021). The complaint alleged
`violations of section 337 based on the
`importation into the United States, the
`sale for importation, or the sale within
`the United States after importation of
`certain wearable electronic devices with
`EGG functionality and components
`thereof by reason of infringement of one
`or more of claims 1—30 of U.S. Patent
`No. 10,595,731 (“the ’731 patent”’);
`claims 1—23 of U.S. Patent No.
`10,638,941 (“the ’941 patent’’); and
`claims 14, 6-14, 16—20 of U.S. Patent
`No. 9,572,499 (‘‘the ’499 patent”). Id.
`The Commission’s notice of
`investigation named Apple Inc. of
`Cupertino, California (‘‘Apple’’) as the
`sole respondent. The Office of Unfair
`Import Investigations (““OUII’’) is named
`as a party in this investigation. Id.
`On February 23, 2022, the ALJ issued
`an initial determination granting
`AliveCor’s motion to terminate the
`investigation as to (1) claims 1-4, 6—14,
`and 18-20 of the ’499 patent; (2) claims
`2, 4, 6, 7,11, 13, 14, and 17—30 of the
`*731 patent; and (3) claims 1-11, 14, 15,
`17, and 18 of the ’941 patent based upon
`withdrawalof allegations from the
`complaint as to those claims. Order No.
`16 (Feb. 23, 2022), unreviewed by Notice
`(Mar. 18, 2022).
`On June 27, 2022, the ALJ issued the
`final initial determination (“ID”) finding
`a violation of section 337 as to the ’941
`and ’731 patents, and no violation of
`section 337 as to the ’499 patent.1 The
`ID foundthat the parties do not contest
`personaljurisdiction, and that the
`Commission has in rem jurisdiction
`over the accused products. ID at 18. The
`ID further found that the importation
`requirement under 19 U.S.C.
`1337(a)(1)(B)is satisfied.Id. (citing CX-
`0904C (Applestipulating that it imports
`the accused products into the United
`States)). Regarding the ’941 patent, the
`ID foundthat AliveCor has proven
`infringementof the asserted claims,
`claims 12, 13, 19, and 20—23, andthat
`Applefailed to show that any of the
`asserted claimsare invalid. Id. at 30-45,
`60-98. For the ’731 patent, the ID found
`that AliveCor has proven infringement
`of the asserted claims, claims 1, 3, 5, 8—
`10, 12, 15, and 16, but that Apple has
`proventhat claims 1, 8, 12, and 16 are
`invalid for obviousness. Id. at 105-108,
`113-127. For the ’499 patent, the ID
`
`1 The ALJ issued a corrected final ID on July 26,
`2022, correcting the table of contents.
`
`found that AliveCorfailed to prove
`infringementof the asserted claims,
`claims 16 and 17, and that claim 17 is
`invalid for lack of patentable subject
`matter under 35 U.S.C. 101. Id. at 129-
`138, 140-152. Finally, the ID found that
`AliveCor has proven the existence of a
`domestic industry that practices the
`asserted patents as required by 19 U.S.C.
`1337(a)(2). Id. at 152-183. The ID
`included the ALJ’s recommended
`determination on remedy and bonding
`(“RD”). The RD recommendedthat,
`should the Commissionfind a violation,
`issuanceof a limited exclusion order
`and cease and desist orders would be
`appropriate. ID/RD at 190-193. The RD
`also recommended imposing no bond
`for covered products imported during
`the period of Presidential review. ID at
`193-95.
`On July 11, 2022, Apple filed a
`petition for review of the ID, and
`AliveCorfiled a combined petition and
`contingent petition for review of the ID.
`On July 19, 2022, the private parties and
`OUIIsinvestigative attorney filed
`responsesto the petitions.
`Having reviewedtherecord of the
`investigation, includingthefinal ID, the
`parties’ submissions to the ALJ, the
`petitions for review, and the responses
`thereto, the Commission has determined
`to review theID in part. Specifically, the
`Commission has determined to review
`the final ID’s invalidity findings,
`including patent eligibility under 35
`U.S.C, 101 and obviousness under 35
`U.S.C, 103, and the economic prong of
`the domestic industry requirement.
`In connection with its review, the
`Commission requests responses from
`the parties to the following questions.
`The parties are requested to brief their
`positions with reference to the
`applicable law andthe existing
`evidentiary record.
`(1) Discuss whetherthe record
`evidenceof‘industry praise” and
`“copying”is sufficient to establish the
`requisite objective indicia of non-
`obviousness. See Graham v. John Deere
`Co. ofKansas City, 383 U.S. 1, 17-18
`(1966).
`(2) Please explain whether and how
`the Complainant’s investments credited
`by the ID undersubsection 337(a)(3)(B)
`are quantitatively and qualitatively
`significant.
`(3) Please explain whether and how
`the Complainant’s employmentof labor
`in research and developmentin the
`exploitation of the patents under
`subsection 337(a)(3)(C) are
`quantitatively and qualitatively
`substantial. Please state whether the
`R&D contract labor amountcredited by
`the ID undersubsection 337(a)(3)(C)
`includesforeign contract labor and,if
`
`

`

`58820
`Federal Register/Vol. 87, No. 187/ Wednesday, September 28, 2022/Notices
`
`so, please quantify such included
`amounts.
`(4) Whatis the factual and legal basis
`for crediting Complainant’s investments
`in the KBP and PRD products toward
`satisfaction of the domestic industry
`requirement under subsection (C)?
`The parties are invited to brief only
`these discrete questions. The parties are
`notto 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 issuanceof, inter alia,
`(1) an exclusion orderthat could result
`in the exclusion of the subjectarticles
`from entry into the United States; and/
`or (2) cease and desist orders that could
`result in the respondent 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 purposesother 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).
`Thestatute requires the Commission
`to considerthe effects of that remedy
`upon the public interest. The public
`interest factors the Commission will
`considerincludethe effect that an
`exclusion order and cease and desist
`orders would have on:(1) the public
`health and welfare, (2) competitive
`conditionsin the U.S. economy,(3) U.S.
`production ofarticles that are like or
`directly competitive with those that are
`subject to investigation, and (4) U.S.
`consumers. The Commissionis
`therefore interested in receiving written
`submissions that address the
`aforementioned public interest factors
`in the contextof this investigation. In
`particular, the Commission requests that
`the parties, interested government
`agencies, and interested persons
`respondto the following:
`(1) Please provide information and
`argumentthat respondsto the
`statements on the public interest
`submitted on the public record by the
`parties and the variousthird parties.
`(2) Please provide data and
`factual
`information that specifically addresses
`whether and to what extent each of the
`four public interest factors would be
`
`adversely impacted by the remedial
`orders recommendedin the RD,
`including details regarding the extent to
`which alternatives to the infringing
`products would be available to replace
`the infringing products and address the
`public health and welfare concerns
`raised.
`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).
`Duringthis period, the subject articles
`wouldbe entitled to enter the United
`States under bond, in an amount
`determined by the Commission and
`prescribed by the Secretary of the
`Treasury. The Commissionis therefore
`interested in receiving submissions
`concerning the amountof the bond that
`should be imposedif a remedyis
`ordered.
`Written Submissions: The parties to
`the investigation are requested tofile
`written submissions on the questions
`identified in this notice. Parties to the
`investigation, interested government
`agencies, and any otherinterested
`parties are encouragedtofile written
`submissions on the issues of remedy,
`the public interest, and bonding and to
`providefactual information and data
`requested above with respect to the
`public interest, including respondingto
`the submissionsof the parties and third
`parties that are in the record ofthis
`investigation. Such submissions should
`address the recommended
`determination by the ALJ on remedy
`and bonding.
`In its initial submission, Complainant
`is also requestedto identify the remedy
`sought and Complainant and OUIare
`requested to submit proposed remedial
`orders for the Commission’s
`consideration. Complainantis further
`requested to provide the HTSUS
`subheadings under which the accused
`products are imported, and to supply
`the identification informationfor all
`known importers of the products at
`issue in this investigation. Theinitial
`written submissions and proposed
`remedial orders mustbefiled no later
`than close of business on October6,
`2022. Reply submissions mustbefiled
`nolater than the close of business on
`October 13, 2022. No further
`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 50 pages. No
`further submissions on any of these
`
`issues will be permitted unless
`otherwise ordered by the Commission.
`Personsfiling written submissions
`mustfile 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
`(March 19, 2020). Submissions should
`tefer to the investigation number(Inv.
`No. 337-TA-1266) in a prominent place
`on the cover page and/orthefirst page.
`(See Handbookfor Electronic Filing
`Procedures, hitps://www.usitc.gov/
`documents/handbook_on_filing_
`procedures.pdf). Persons with questions
`regardingfiling should contact the
`Secretary, (202) 205-2000.
`Anyperson desiring to submit a
`documentto the Commission in
`confidence must request confidential
`treatment by marking each document
`with a headerindicating that the
`document contains confidential
`information. This marking will be
`deemedto 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 mustalso be filed with the
`Commission and served on any parties
`to the investigation within two business
`days of any confidentialfiling. All
`information, including confidential
`business information and documents for
`which confidential treatment is properly
`sought, submitted to the Commission for
`purposesofthis 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 under5
`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 determined to
`extend the target date to December12,
`2022.
`The Commission vote for this
`determination took place on September
`
`

`

`58821
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`
`22, 2022. 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 orderof the Commission.
`Issued: September 22, 2022.
`Katherine Hiner,
`Acting Secretary to the Commission.
`[FR Doc. 2022-20959 Filed 9-27-22; 8:45 am]
`BILLING CODE 7020-02-P
`
`
`INTERNATIONAL TRADE
`COMMISSION
`
`[Investigation Nos. 701—-TA—555 and 731-—
`TA-1310 (Review)]
`
`Certain AmorphousSilica Fabric From
`China; Determinations
`
`Onthebasis of the record 1 developed
`in the subject five-year reviews, the
`United States International Trade
`Commission (“Commission’’)
`determines, pursuantto the Tariff Act of
`1930 (‘‘the Act”’), that revocation of the
`countervailing and antidumping duty
`orders on certain amorphoussilica
`fabric from China would belikely to
`lead to continuation or recurrence of
`material injury to an industry in the
`United States within a reasonably
`foreseeable time.
`
`Background
`
`The Commission instituted these
`reviews on February 1, 2022 (87 FR
`5511) and determined on May9, 2022,
`that it would conduct expedited reviews
`(87 FR 53488, August 31, 2022).
`The Commission made these
`determinations pursuantto section
`751(c) of the Act (19 U.S.C. 1675(c)). It
`completed andfiled its determinations
`in these reviews on September22, 2022.
`The views of the Commission are
`contained in USITC Publication 5368
`(September 2022), entitled Certain
`AmorphousSilica Fabric from China:
`Investigation Nos. 701-TA-555 and
`731-TA-1310 (Review).
`
`By orderof the Commission.
`Issued: September 22, 2022.
`Katherine Hiner,
`Acting Secretary to the Commission.
`[FR Doc. 2022-20936 Filed 9-27-22; 8:45 am]
`BILLING CODE 7020-02-P
`
`1Therecord is defined in § 207.2(f) of the
`Commission’s Rules of Practice and Procedure (19
`CFR 207.2(f).
`
`INTERNATIONAL TRADE
`COMMISSION
`
`[Investigation Nos. 731—-TA—1578—-1579
`(Final)]
`
`Lemon Juice From Brazil and South
`Africa; Revised Schedule for the
`Subject Investigations
`AGENCY: United States International
`Trade Commission.
`ACTION: Notice.
`
`DATES: September22, 2022.
`FOR FURTHER INFORMATION CONTACT:
`Stamen Borisson (202-205-3125), Office
`of Investigations, U.S. International
`Trade Commission, 500 E Street SW,
`Washington, DC 20436. Hearing-
`impaired persons can obtain
`information on this matter by contacting
`the Commission’s TDD terminal on 202-
`205-1810. Persons with mobility
`impairments whowill need special
`assistance in gaining accessto the
`Commission should contact the Office
`of the Secretary at 202-205-2000.
`General information concerning the
`Commission may also be obtained by
`accessingits internet server (https://
`www.usitc.gov). The public record for
`these investigations may be viewed on
`the Commission’s electronic docket
`(EDIS)at https://edis.usitc.gov.
`SUPPLEMENTARYINFORMATION:On July
`28, 2022, the Commission established a
`schedule for the conductofthe final
`phaseofthe subject investigations (87
`FR 51701, August 23, 2022) as a result
`of affirmative preliminary
`determinations by the Departmentof
`Commerce (‘“‘Commerce”) regarding
`imports of lemon juice from Brazil and
`South Africa. Commerce had extended
`the date for its final determination with
`respect to Brazil but not for South
`Africa. Subsequently, Commerce
`extendedthedatefor its final
`determination in the investigation of
`South Africa from October 11, 2022, to
`December 19, 2022 (87 FR 56631,
`September15, 2022). The Commission,
`therefore, is revising its schedule to
`conform with Commerce’s new
`schedule. The Commission also gives
`notice that the hearing in connection
`with the final phase of these
`investigations will not be held on
`October 11 but instead will be held in-
`personat the U.S. International Trade
`Commission Building beginningat 9:30
`a.m. on December15, 2022.
`The Commission’s revised dates in
`the schedule are as follows: the
`prehearingstaff report will be placed in
`the nonpublic record on November 30,
`2022; the deadlinefor filing prehearing
`briefs is December 7, 2022; requests to
`
`appear at the hearing mustbefiled with
`the Secretary to the Commission not
`later than December 9, 2022; the
`prehearing conference will be held at
`the U.S. International Trade
`Commission Building on December9,
`2022, if deemed necessary; the hearing
`will be held at the U.S. International
`Trade Commission Building at 9:30 a.m.
`on December 15, 2022; the deadline for
`filing posthearing briefs is December 22,
`2022; the Commission will makeits
`final release of information on January
`13, 2023; and final party comments are
`due on January 18, 2023.
`Hearing.—The Commission will hold
`an in-person hearing in connection with
`the final phase of these investigations at
`the U.S. International Trade
`Commission Building beginningat 9:30
`a.m. on December 15, 2022. Requests to
`appear at the hearing shouldbefiled in
`writing with the Secretary to the
`Commission on or before December9,
`2022. Any requests to appear as a
`witness via videoconference must be
`included with your request to appear.
`Requests to appear via videoconference
`must include a statement explaining
`why the witness cannot appear in
`person; the Chairman,or other person
`designated to conductthe
`investigations, may in their discretion
`for good cause shown,grant such a
`request. Requests to appear as remote
`witness dueto illness or a positive
`COVID-19test result may be submitted
`by 3 p.m. the business day prior to the
`hearing. Further information about
`participation in the hearing will be
`posted on the Commission’s website at
`https://www.usitc.gov/calendarpad/
`calendar.html.
`A nonparty whohastestimony that
`may aid the Commission’s deliberations
`may request permission to present a
`short statementat the hearing. All
`parties and nonparties desiring to
`appear at the hearing and make oral
`presentations should attend a
`prehearing conferenceto be held at 9:30
`a.m. on December9, 2022, if deemed
`necessary. Parties shall file and serve
`written testimony and presentation
`slides in connection with their
`presentation at the hearing by no later
`than 4:00 p.m. on December14, 2022.
`Oral testimony and written materials to
`be submitted with respect for the public
`hearing are governedby sections
`201.6(b)(2), 201.13(f), and 207.24 of the
`Commission’s rules. Parties must submit
`any request to present a portion of their
`hearing testimony in camera nolater
`than 7 business daysprior to the date of
`the hearing.
`Written submissions.—Each party
`whois an interested party shall submit
`a prehearingbrief to the Commission.
`
`