Certain Motorized Self-Balancing Vehicles; Notice of a Commission Determination To Terminate the Investigation on Remand Due to Mootness

Lisa Barton
International Trade Commission
28 January 2021

[Federal Register Volume 86, Number 17 (Thursday, January 28, 2021)]
[Notices]
[Pages 7414-7415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01844]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1000 (REMAND)]


Certain Motorized Self-Balancing Vehicles; Notice of a Commission 
Determination To Terminate the Investigation on Remand Due to Mootness

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

[[Page 7415]]

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to terminate the investigation on remand from 
the U.S. Court of Appeals for the Federal Circuit (``Federal Circuit'') 
due to mootness.

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. 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 26, 2016, based on a complaint filed on behalf of Razor USA LLC 
of Cerritos, California; and Inventist, Inc. and Shane Chen, both of 
Camas, Washington (collectively, ``Razor''). 81 FR 33548-49. The 
complaint alleged, inter alia, violations of section 337 of the Tariff 
Act of 1930, as amended, 19 U.S.C. 1337, by reason of infringement of 
certain claims of U.S. Patent No. 8,738,278 (``the '278 patent''). The 
Commission's notice of investigation named twenty-eight respondents. 
The Office of Unfair Import Investigations (``OUII'') also participated 
in the investigation. Id. Nine respondents (``the remaining 
respondents'') remained active in the investigation after every other 
respondent had been terminated from the investigation based on a 
consent order, good cause, or else had been found in default. These 
remaining respondents included Hangzhou Chic Intelligent Co., Ltd. 
(``Chic'') of Hangzhou, China; Swagway, LLC (``Swagway'') of South 
Bend, Indiana; Modell's Sporting Goods, Inc. (``Modell's'') of New York 
City, New York; Powerboard a.k.a. Optimum Trading Co. (``Powerboard'') 
of Hebron, Kentucky; United Integral, Inc. dba Skque Products of 
Irwindale, California; Alibaba Group Holding Ltd. of Causeway Bay, Hong 
Kong and Alibaba.com Ltd. of Hangzhou, China (collectively, 
``Alibaba''); Jetson Electric Bikes LLC (``Jetson'') of New York City, 
New York; and Newegg, Inc. (``Newegg'') of City of Industry, 
California. On the same day that the Commission instituted this 
investigation, Razor sought reissue of the asserted '278 patent.
    On May 26, 2017, the presiding administrative law judge (``ALJ'') 
issued a final ID finding no violation of section 337. The ID found 
that none of the remaining respondents' accused products infringes the 
asserted '278 patent claims, but that all of the defaulting 
respondents' accused products infringe the asserted claims based on 
allegations in the complaint. The ID also found that the technical 
prong of the domestic industry requirement was not satisfied.
    On July 28, 2017, the Commission determined to review (1) the ID's 
finding that the Commission has no jurisdiction over Alibaba, and (2) 
the ID's analysis of infringement by the defaulting respondents. See 
Comm'n Notice of Review (July 28, 2017). On review, the Commission 
determined to (1) take no position on the ID's finding that it has no 
jurisdiction over Alibaba; and (2) vacate the ID's infringement finding 
as to the defaulting respondents as moot in view, inter alia, of the 
domestic industry determination. Id. at 3-4. The Commission determined 
not to review the remainder of the ID and therefore issued its final 
determination of no Section 337 violation and terminated the 
investigation. Id.
    Razor timely appealed the Commission's final determination to the 
Federal Circuit. During the appeal, the reissue application was allowed 
with amended claims that the Commission and Intervenor/respondent Chic 
argued, via a motion to dismiss, were not ``substantially identical'' 
to the original claims on appeal, and therefore the appeal should be 
dismissed as moot under 35 U.S.C. 252.
    On October 16, 2018, the Federal Circuit issued an order and 
mandate that remanded the investigation to the Commission for further 
proceedings consistent with its ruling. See Razor USA LLC v. ITC, Case 
No. 2017-2591, Remand Order at 4 (Oct. 16, 2018). Specifically, the 
Court deemed it appropriate for the Commission to have the first 
opportunity to determine whether the post-investigation events have 
rendered the case moot or whether the case may continue either on the 
original patent claims or reissued claims and to conduct any additional 
proceedings as necessary. Id.
    On November 13, 2018, the Commission issued an Order requesting the 
parties to provide comments concerning what further proceedings are 
appropriate consistent with the Court's judgment, including whether the 
matter should be referred to the ALJ. On November 27, 2018, Razor 
submitted comments, six respondents (Chic, Swagway, Modell's, Jetson, 
Powerboard, and New Egg) filed a joint submission, and Alibaba filed a 
separate submission. On December 4, 2018, OUII submitted comments. On 
December 10, 2018, these parties submitted response comments.
    On September 19, 2019, the Commission issued an Order requesting 
the parties to provide written responses regarding specific questions 
concerning the effect of the patent reissue. Razor, Jetson, four 
respondents (Chic, Swagway, Modell's, and Newegg), and OUII each filed 
a submission. Each of these parties, except Jetson, filed a reply. On 
November 18, 2019, Jetson filed a reply to Razor's reply, but which 
also addressed Razor's initial submission. The Commission has 
determined to accept that submission, but only as to the portion that 
responds to Razor's initial submission.
    Having examined the record of this investigation, including the 
Federal Circuit's Remand Order and the parties' subsequent briefing, 
the Commission terminates this investigation as moot pursuant to the 
Remand Order. The Commission has issued an opinion explaining the basis 
for the Commission's determination.
    The Commission vote for this determination took place on January 
22, 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: January 22, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-01844 Filed 1-27-21; 8:45 am]
BILLING CODE 7020-02-P