PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C. 20436
`
`
`
`In the Matter of
`
`CERTAIN EARPIECE DEVICES AND
`
`Inv. No. 337-TA-1121
`
`COMPONENTS THEREOF
`
`
`Order No. 16
`
`INITIAL DETERMINATION
`
`Granting in Part Complainants’ Motion for Summary Determination of Violation
`
`And
`
`RECOMMENDED DETERMINATION
`
`On Remedy and Bonding
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C. 20436
`
`
`
`In the Matter of
`
`CERTAIN EARPIECE DEVICES AND
`
`Inv. No. 337-TA-1121
`
`COMPONENTS THEREOF
`
`
`Order No. 16
`
`INITIAL DETERMINATION
`
`Granting in Part Complainants’ Motion for Summary Determination of Violation
`
`And
`
`RECOMMENDED DETERMINATION
`
`On Remedy and Bonding
`
`
`
`PUBLIC VERSION
`
`TABLE OF CONTENTS
`
`II.
`
`III.
`
`IV.
`
`Background ............................................................................
`
`A.
`
`B.
`
`C.
`
`D.
`
`Institution of the Investigation; Procedural History .....................
`
`The Parties ....................................................................
`
`Technological Background ................................................
`
`The Products at Issue .......................................................
`
`Jurisdiction ............................................................................
`
`General Principles of Applicable Law .............................................
`
`Summary Determination ............................................................
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Importation ...................................................................
`
`Infringement ..................................................................
`
`1.
`
`2.
`
`3.
`
`4.
`
`Asserted Patents ......................................................
`
`A Person of Ordinary Skill in the Art .............................
`
`Claim Construction .................................................
`
`Infringement Analysis of the Asserted Claims ...................
`
`Validity .........................................................................
`
`Domestic Industry (Technical Prong) .....................................
`
`Domestic Industry (Economic Prong) .....................................
`
`Recommended Determination on Remedy and Bonding .........................
`
`A.
`
`B.
`
`C.
`
`General Exclusion Order .....................................................
`
`Cease and Desist Orders .....................................................
`
`Bond ...........................................................................
`
`V].
`
`Initial Determination and Order ....................................................
`
`10
`
`14
`
`17
`
`17
`
`25
`
`26
`
`31
`
`31
`
`39
`
`40
`
`42
`
`52
`
`S3
`
`55
`
`61
`
`62
`
`79
`
`34
`
`86
`
`
`
`PUBLIC VERSION
`
`1.
`
`Background
`
`A.
`
`Institution of the Investigation; Procedural History
`
`By publication of a notice in the Fedema1r Register on June 29, 2018, pursuant to
`
`subsection (b) of section 337 of the Tariff Act of 1930, as amended, the Commission
`
`instituted this investigation to determine:
`
`[W]hether there is a violation of subsection (a)(1)(B) of
`section 337 in the importation into the United States, the
`sale for importation, or the sale within the United States
`after importation of products identified in paragraph (2) by
`reason of infringement of one or more of claims 1, 5, 7, 9,
`and 14 ofthe ‘852 patent [U.S. Patent No. 9,036,852];
`claims 1—3, 6, 8, 10, and 11 of the ‘853 patent [U.S. Patent
`No. 9,036,853]; claims 1, 3, 4, 6, 7, and 10 of the ‘590
`patent [U.S. Patent No. 9,042,590]; claims 1, 3, 4, and 6 of
`the ‘253 patent [U.S. Patent No. 8,311,253]; claims 1 and
`648 of the ‘237 patent [U.S. Patent No. 8,249,283]; and
`claims 1, 2, 5, 8, 11, and 16 of the ‘364 patent [U.S. Patent
`No. 9,398,364]; and whether an industry in the United
`States exists as required by subsection (a)(2) of section 33?.
`
`83 Fed. Reg. 30776 (June 29, 2018).
`
`The complainant is Bose Corporation of Framingham, Massachusetts. The named
`
`respondents are:
`
`1.
`
`IMORE USA, Inc. of San Diego, California;
`
`2. APSkins of Seattle, Washington;
`
`3. Beeebo Online Limited of North Las Vegas, Nevada;
`
`4.
`
`iI-lip of Edison, New Jersey;
`
`5. LMZT LLC of Brooklyn, New York;
`
`6. Misodiko of ShenZhen, GuangDong, China;
`
`7. Phaiser LLC of Houston, Texas;
`
`8. Phonete ofShenzhen, China;
`
`9. REVJAMS of New York, New York;
`
`10. SMARTOMI Products, Inc. of Ontario, California;
`
`
`
`PUBLIC VERSION
`
`1]. Spigen, Inc. of Irvine, California;
`
`12. Sudio AB of Stockholm, Sweden;
`
`13. Sunvalley Tek International, Inc. of Fremont, California; and
`
`14. TomRich of Shenzhen, China.
`
`The Office of Unfair Import Investigations (“‘OUII“ or “Staff”) is a party to this
`
`investigation. Id.
`
`The target date for completion of this investigation was set at sixteen months, tie. ,
`
`October 29, 2019. See Order No. 3 at 2 (July 3, 2018). Accordingly, the initial
`
`determination on alleged violation of section 337 is due on June 28, 2019.
`
`Only two respondents, 1'. e. , Spigen, Inc. (“Spigen”) and Sunvalley Tek
`
`International, Inc. (“Sunvalley Tek”), have entered appearances and responded to the
`
`complaint and notice of investigation. See Spigen Notice of Appearance (EDIS Doc. ID
`
`No. 650456); Spigcn Answer (EDIS Doc. ID No. 654757); Sunvalley Tek Appearance
`
`(EDIS Doc. ID No. 650254); Sunvalley Tek Answer (EDIS Doc. ID No. 650523).
`
`On October 4, 2018, Bose moved to amend the notice of investigation and for
`
`leave to file an amended complaint in order, among other things, (i) to correct the name
`
`of respondent iI-lip to Zeikos, Inc.; and (ii) to correct the name and address of reSpondent
`
`Smartomi Products, Inc. to V4ink, Inc. Motion Docket No. 1121-13. The administrative
`
`lawjudge granted the motion, Order No. 10 (Oct. 29, 2018), and the Commission
`
`determined not to review the initial determination- See 83 Fed. Reg. 61168 (Nov. 28,
`
`2018); correction at 83 Fed. Reg. 62900 (Dec. 6, 2018). On February 21, 2019, Bose
`
`filed its amended complaint and served it on all respondents. See First Am. Compl.,
`
`(EDIS Doc. ID No. 667739),
`
`
`
`PUBLIC VERSION
`
`During the course of the investigation, Bose settled with the following six
`
`respondents:
`
`' APSkins
`
`- Zeikos, Inc.
`- LMZT LLC
`
`- Spigen
`- Sudio AB
`
`- Sunvalley 'l‘ek
`
`The investigation has been terminated as to these respondents. See Commission Notices
`
`(EDIS Doc. ID Nos. 664652, 662643, 661554, 669160).
`
`Defaulting (or Non-Participating) Respondents
`
`As to the eight remaining respondents, five have been found in default.
`
`Specifically, on September 4, 2018, Bose moved for an order to Show cause why (i)
`
`Beeebo Online Limited, (ii) Misodiko, (iii) Phaiser LLC, (iv) SMART0M1 Products,
`
`Inc., (i.e., V4ink, Inc), and (v) TomRich should not be found in default for failing to
`
`respond to the complaint and notice of investigation. Motion Docket No. 1121—9. The
`
`administrative law judge granted the motion and issued an order to show cause. See
`
`Order No. 7 (Sept. 20, 2018). On December 1 1, 2018, the administrative lawjudge
`
`found these five respondents in default (Order No. 13 (Dec, 11, 2018)), and the
`
`Commission determined not to review the initial determination. See Notice of Comm’n
`
`Determination Not to Review an Initial Determination Finding Certain Respondents in
`
`Default (EDIS Doc. ID No. 664971) (Dec. 21, 2019).
`
`As to the three other respondents—(i) IMORE USA, Inc., (ii) Phonete, and (iii)
`
`REVJAMS_Bose moved, to the extent necessary, in the pending motion for a finding of
`
`default. See Mem. at 3 n3.
`
`
`
`PUBLIC VERSION
`
`Although the Commission was unable to serve the complaint and notice of
`
`investigation on lMORE USA, Inc. and Phonete (returned from IMORE USA, Inc.
`
`(EDIS DOC ID No. 650945); returned from Phonete (EDIS Doc. ID No. 650270), Bose
`
`apparently served the amended complaint on IMORE USA, Inc. and Phonete. See Mem.
`
`Exs. A, B. As to REVJAMS, the Commission served the complaint and notice of
`
`investigation on the respondent. However, Order Nos. 8-1 I were returned to the
`
`Commission with the comment: “Company or Person Unknown.” See Order Nos. 8-1 1
`
`Returned from REVJAMS (EDIS Doc. ID No. 661320).
`
`On December 7, 2018, Bose moved to suspend the procedural schedule and
`
`represented that “Bose is in the process ot‘preparing a motion for summary determination
`
`that will conclude this investigation." Motion Docket No. 1121-16 at 1. In an e-mail on
`
`December 10, 2018, the administrative law judge granted the motion.
`
`Despite being served with the complaint or amended complaint, and the redacted
`
`corrected motion for summary determination, respondents (i) IMORE USA, Inc, (ii)
`
`Phonete, and (iii) REVJAMS have not submitted any response, appeared, or otherwise
`
`participated in the investigation. These three non—participating respondents and the five
`
`respondents found in default are the subject of Bose’s pending motion for summary
`
`determination seeking a finding of a violation of section 337 and requesting entry of a
`
`general exclusion order (“GEO”) and cease and desist orders (“CDOs”) directed at all
`
`defaulting (or non—participating) respondents. Mot. at l-2.
`
`Corrected Motion for Stunning Determination
`
`On February 8, 2019, pursuant to Commission Rule 210.18, Bose Corporation
`
`(“Bose") filed a motion for summary determination of violations by certain respondents
`
`
`
`PUBLIC VERSION
`
`who are in default, and for a recommended determination on remedy and bonding.
`
`Motion Docket No. 1121-20. As noted above, the defaulting (or non-participating)
`
`respondents are IMORE USA, Inc., Beeebo Online Limited, Misodiko, Phaiser LLC,
`
`Phonete, REVJAMS, TomRich, and V4lnk, Inc. (dfbfa SMARTOMI Products, Inc.). On
`
`March 1, 2019, Bose filed a corrected motion. On March 12, 2019, Bose filed a
`
`replacement Exhibits E to the corrected motion for summary determination. See EDIS
`
`Doc. ID No. 669857 (Replacement Exhibit E to Bose Corrected Motion for Summary
`
`Determination).
`
`On June 2?, 2019, Bose filed a “Supplement to Complainant Bose Corporation’s
`
`Corrected Motion for Summary Determination” which includes an “Index of Bose MSD
`
`filings.” See EDIS Doc. ID No. 679576. The index provides descriptive titles of all of
`
`the exhibits attached to (1) the original motion filed on February 8, 2019; (2) the
`
`corrected motion filed on March 1, 2019; and (3) the Replacement Exhibit E filed on
`
`March 12, 2019. Additionally, on June 27, 2019, Bose filed “replacement Exhibits for
`
`Schuler Declaration (Exs. 13-36 and 13—37).” See EDIS Doc. ID No. 679568 (Letter to
`
`Secretary Barton enclosing replacement Exhibits for Schuler Declaration (Exs. 13-36 and
`
`E-37)).
`
`Bose argues that substantial, reliable, and probative evidence supports the
`
`following requested relief:
`
`1. An initial determination that the defaulting respondents have violated section 337
`of the Tariff Act of 1930, as amended, 19 U.S.C. §133?, through their importation
`into the United States, sale for importation into the United States, andfor sale
`within the United States after importation of earpiece devices that infringe claims
`1 and 7 ofU.S. Patent No. 9,036,852; claims 1 and 8 of US. Patent No.
`9,036,853; claims 1 and 6 ofU.S. Patent No. 9,042,590; claim 1 of US. Patent
`
`
`
`PUBLIC VERSION
`
`No. 8,31 1,253; claims 1, 7, and 8 of U.S. Patent No. 8,249,287; and claims 1 and
`11 of US. Patent No. 9,398,364;
`
`2. An initial determination that complainant has satisfied the domestic industry
`requirement; and
`
`3. A recommended determination that the Commission (a) issue a general exclusion
`order pursuant to 19 U.S.C. §l33?(d)(2) covering earpiece devices that infringe
`claims 1 and 7 ofU.S. Patent No. 9,036,852; claims 1 and 8 ofU.S. Patent No.
`9,036,853; claims 1 and 6 ofU.S. Patent No. 9,042,590; claim 1 of US. Patent
`
`No. 8,311,253; claims 1, 7', and 8 ofU.S. Patent No. 8,249,287; and claims 1 and
`l 1 ofU.S. Patent No. 9,398,364; (b) issue cease and desist orders against the
`defaulting respondents; and (8) set the bond for the Presidential Review period at
`100% of the entered value of the infringing earpiece devices.
`
`Mot. at 1-2.
`
`On March 22, 2019, the Staff filed a response supporting the motion in substantial
`
`part, and supporting the requested remedy of a general exclusion order. See EDIS Doc.
`
`ID No. 621068 (Staff’s Response to Bose’s Corrected Motion for Summary
`
`Determination ofNo Violation and for Recommend Determination on Remedy and
`
`Bonding). The Staff argues:
`
`The Staff supports the motion for a summary determination of
`violation.
`In short, there is no genuine issue as to any material fact that
`there has been a violation of Section 337 as to the six patents at issue. In
`the event that a violation is found, the evidence also supports the issuance
`of a general exclusion order (“GEO”) directed to five of the six patents
`and cease and desist orders (“CD05”) directed to domestic defaulting
`respondents.
`
`Staff Resp. at 1.
`
`B.
`
`The Parties
`
`1.
`
`Complainant
`
`Complainant Bose is a corporation organized and existing under the laws of the
`
`state of Delaware with a principal place of business at 100 The Mountain Road,
`
`
`
`PUBLIC VERSION
`
`Framingham, Massachusetts 01701. Since its founding in 1964, Bose has designed and
`
`developed unique sound solutions for a host of audio applications, including home
`
`entertainment and home audio, portable audio such as headphones, aviation and
`
`automotive industries, and the military. Bose also designs professional sound systems for
`
`many applications, including stadiums and auditoriums, houses of worship, retail
`
`businesses, department stores and restaurants. Bose designs, develops, manufactures, and
`
`supports a wide range of products including: automotive music systems; professional
`
`audio systems; and home audio equipment, such as stereos, speakers, headphones,
`
`headsets, tabletop, and home theater systems. Bose’s product offerings also extend to
`
`conversation-enhancing headphones, noise-masking sleep earbuds, and audio eyeglasses.
`
`See Mem. at 3-4.
`
`2.
`
`Respondents
`
`As noted above, fourteen respondents were originally named in this investigation.
`
`The named respondents are:
`
`].
`
`lMORE USA, 1nc. of San Diego, California;
`
`2 APSkins of Seattle, Washington;
`
`3. Beeebo Online Limited of North Las Vegas, Nevada;
`
`4
`
`iHip of Edison, New Jersey;
`
`5. LMZT LLC of Brooklyn, New York;
`
`6 Misodiko of ShenZhen, GuangDong, China;
`
`7 Phaiser LLC of Houston, Texas;
`
`8
`
`Phonete of Shenzhen, China;
`
`9. REVJAMS of New York, New York;
`
`10. SMARTOMI Products, Inc. of Ontario, California;
`
`11. Spigen, Inc. of Irvine, California;
`
`12. Sudio AB of Stockholm, Sweden;
`
`
`
`PUBLIC VERSION
`
`l3. Sunvalley Tek International, Inc. of Fremont, California; and
`
`14. TomRieh of Shenzhen, China.
`
`83 Fed. Reg. 30T7'6 (June 29, 2018).
`
`Defauifing [or Non-Participating! Respondents
`
`As discussed above, the defaulting (or non-participating) respondents (lMORE,
`
`Beeebo, Misodiko, Phaiser, Phonete, REVJAMS, V4Ink, and TomRich) failed to respond
`
`to Bose’s complaint or the notice of investigation. These respondents are companies
`
`based in the United States, China, and Canada that manufacture, offer for sale, and sell
`
`earpiece devices through Internet sites like Amazon.com, eBay, and Alibaba. See Mem.
`
`Ex. E (Schuler lst Decl.),1] 11; see also e.g., Mem. Ex. F, 11 8; Mem. Ex. G at App. C-l;
`
`Mem. Ex. HA] 10; Mem. Ex. 1, 1| 10; Mem. Ex. J, if 7. The evidence demonstrates that
`
`these respondents use well-known shipping companies like DHL and FedEx to import
`
`their products directly to consumers in the United States, often in small quantities. See
`
`Mem. Ex. E (Schuler lst Decl.),1l 12; see also e.g., Mem. Ex. 1,116. These respondents
`
`are not licensed to use the asserted patents. Mem. Ex. E (Schuler lst Decl.), fil 13.
`
`As noted above, despite being served with the complaint or amended complaint,
`
`and the redacted corrected motion for summary determination, respondents (i) lMORE
`
`USA, Inc., (ii) Phonete, and (iii) REVJAMS have not submitted any response, appeared,
`
`or otherwise participated in the investigation. These three non-participating respondents
`
`and the five respondents found in default are the subject of Bose’s pending motion for
`
`summary determination seeking a finding of a violation of section 337 and requesting
`
`entry of a GEO and CDOS directed at all defaulting (or non-participating) respondents.
`
`Mot. at 1-2.
`
`
`
`PUBLIC VERSION
`
`The Terminated Respondents
`
`As noted above, Bose settled with the following six respondents:
`
`. APSkins
`
`* Zeikos, Inc.
`- LMZT LLC
`
`- Spigen
`- Sudio AB
`
`- Sunvalley 'l‘ek
`
`The investigation has been terminated as to these respondents. See Commission Notices
`
`(EDIS Doc. ID Nos. 664652, 662643, 661554, 669160).
`
`The status of each respondent is summarized below:
`
`Respondent
`”—masfi‘sngni
`Beeebo Online Limited
`APSkins
`
`State—s —
`
`_ m to respond or afisélr
`.
`.
`Found in default-n
`i
`Tenninated— --
`
`Zeikos, Inc.
`LMZT LLC
`
`Q
`'
`
`Terminated —-—--
`Ternlinoted
`——-
`
`?.
`.
`i
`
`il
`i
`
`I
`
`A
`
`
`
`H
`
`I
`
`I
`
`I.
`
`:
`!
`
`
`
`
`
`'
`}
`i
`
`.
`E
`i
`
`Found in again I
`Misodiko
`— J-
`Found in defziuit
`Phaiser LLC
`1- Failed to respond or-zippeormi
`Phonete
`i Failed to respond or appear
`E
`REVJAMS
`I
`I
`Found in defoult
`—--
`V4Ink, Inc.
`.
`Terminated
`l'
`Spigen, Inci
`1
`Terminated
`i
`Sudio AB
`Tenninat-ed.
`Sunvalley Tek
`I Found in defaiu-lt
`TomRich
`
`
`
`
`PUBLIC VERSION
`
`C.
`
`Technological Background
`
`The ‘852:| ‘853, ‘59!)I ‘253I and ‘28? StayHear® Patents
`
`The “852, “853, ‘590, ‘253, and ‘28?r patents (Mem. Exs. K-O, respectively) each
`
`describes the novel aspects of the Bose StayHeaI® tips and share substantially similar
`
`specifications. Bose refers to these patents as the “StayI-iear® Patents.” See Mem. at 6.
`
`The StayHear® Patents generally describe an earpiece comprising an acoustic driver, a
`
`housing, and an ear interface having a body and a positioning and retaining structure. See
`
`Mem. Ex. N (‘253 Patent) at 11:10-31.] The patents describe the desirability of placing
`
`the earpiece in the user’s ear such that it is oriented properly, it is stable, and it is
`
`comfortable to the user. Id. at 4:63-65. In one aspect, the positioning and retaining
`
`structure, together with the body, holds the earpiece in position without the use of ear
`
`hooks or “twist lock” tips, which may be unstable, uncomfortable, or ill-fitting.
`
`Id. at
`
`5:23-29.
`
`1 All citations for the StayHear® Patents are to the “253 patent. Similar disclosures can
`be found in each of the asserted patents. See Mem. at 7 n.4.
`
`10
`
`
`
`PUBLIC VERSION
`
`
`
`Previous in—ear earpiece designs were uncomtbrtable, unstable, and difficult to
`
`insert in the user’s ear. Other in-ear earpiece designs provide too much sealing, reducing
`
`ambient noise but also reducing the user’s ambient awareness. See Mem. at 7. Bose
`
`designed the StayHear® earpiece to fit the shape of the concha and ear canal entrance
`
`while not exerting pressure on ear canal walls. The retaining structure stabilizes and
`
`secures the earphone in the user’s ear. The overall design facilitates comfort and stability
`
`without the need for a very tight, highly attenuating seal in the ear canal.
`
`US. Patent No. 9 036 852
`
`The “852 patent, entitled “Earpiece Positioning and Retaining,” issued on May 19,
`
`2015, to named inventors Ryan C. Silvestri, Eric M. Wallace, Kevin P. Annunziato, Ian
`
`M. Collier, and Michael Monahan. See Mem. Ex. K (‘852 Patent). It is assigned to Bose.
`
`ll
`
`
`
`PUBLIC VERSION
`
`See First Am. Compl., 1| 49; Ex. 2. The ‘852 patent generally discloses a positioning and
`
`retaining structure for an in-ear earpiece. See Mem. Ex. K (“852 Patent) at Abstract.
`
`U.S. Patent No. 9,036,853
`
`The ‘853 patent, entitled “Earpiece Positioning and Retaining,” issued on May 19,
`
`2015, to named inventors Ryan C. Silvestri, Eric M. Wallace, Kevin P. Annunziato, Ian
`
`M. Collier, and Michael Monahan. See Mem. Ex. L (‘853 Patent).
`
`It is assigned to Bose.
`
`See First Am. Compl., 11 52; Ex. 5. The ‘853 patent generally discloses a positioning and
`
`retaining structure for an ill-631' earpiece. See Mem. Ex. L (‘853 Patent) at Abstract.
`
`U.S. Patent No. 9,042,590
`
`The “590 patent, entitled “Earpiece Positioning and Retaining,” issued on May 26,
`
`2015, to named inventors Ryan C. Silvestri, Eric M. Wallace, Kevin P. Annunziato, Ian
`
`M. Collier, and Michael Monahan. See Mem. Ex. M (“590 Patent). It is assigned to
`
`Bose. See First Am. Compl., 1] 55; Ex. 8. The ‘590 patent generally discloses a
`
`positioning and retaining structure for an in-ear earpiece. See Mem. Ex. M (‘590 Patent)
`
`at Abstract.
`
`U.S. Patent No. 8,;11,253
`
`The L253 patent, entitled “Earpiece Positioning and Retaining," issued on
`
`November 13, 2012, to named inventors Ryan C- Silvestri, Eric M. Wallace, Kevin P.
`
`Annunziato, Ian M. Collier, and Michael Monahan. See Mem. Ex. N (‘253 Patent). It is
`
`assigned to Bose. See First Am. Compl., 11 58; Ex. 11. The ‘253 patent generally
`
`discloses an earpiece that fits into the right ear. See Mem. Ex. N (‘253 Patent) at 4:36-37.
`
`U.S. Patent No. 8,249,287
`
`The ‘287 patent, entitled “Earpiece Positioning and Retaining,” issued on August
`
`12
`
`
`
`PUBLIC VERSION
`
`21, 2012, to named inventors Ryan C. Silvestri, Eric M. Wallace, Kevin P. Annunziato,
`
`Ian M. Collier, and Michael Monahan. See Mem. Ex. 0 (‘28? Patent). It is assigned to
`
`Bose. See First Am. Compl., 1| 61; Ex. 14. The ‘287 patent generally discloses a
`
`positioning and retaining structure for an in-ear earpiece. See Mem. Ex. 0 (‘28? Patent)
`
`at Abstract.
`
`The ‘364 StayHear®+ Patent
`
`The ‘364 patent, entitled “Earpiece Passive Noise Attenuating,” issued on July 19,
`
`2016, to named inventors Michael Monahan, Ryan C. Silvestri, Eric M. Wallace, and
`
`Kevin P. Annunziato. See Mem. Ex. P (‘364 Patent).
`
`It is assigned to Bose. See First
`
`Am. Compl., 1] 64; Ex. 17. Bose refers to the ‘364 patent as the StayHear®+ Patent. See
`
`Mem. at 8. The “364 patent generally discloses a structure for providing passive noise
`
`attenuation by an in-ear earpiece and for positioning and retaining the earpiece in the ear.
`
`See Mem. Ex. P (“364 Patent) at 1:12—14. The ‘364 patent generally describes an ear tip
`
`for an in-ear earpiece comprising a positioning and retaining structure, a passageway, and
`
`a sealing structure. See Mem. Ex. P at 5:53-55. The patent describes the desirability of
`
`placing the earpiece in the user’s ear such that it is properly oriented and stable: in this
`
`position, the ear tip provides significant passive attenuation ofambient noise without
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`causing discomfort in the user’s ear.
`
`Id. at 4:12-15. The ‘364 patent also includes a
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`sealing structure or flap, which may be frusto-conically shaped. The flap is designed
`
`such that the smaller end of the tip fits inside the ear canal entrance and contacts the
`
`entrance of the ear canal but not the inside of the ear canal, thereby improving comfort.
`
`Id. at 5:66-67; 6:1-4. The ear tip of the “364 patent provides orientation, stability, and
`
`good sealing to the entrance of the ear canal without excessive radial pressure and
`
`13
`
`
`
`PUBLIC VERSION
`
`without inward clamping pressure. 1d. at 4:4?-51; 5:29-33; see also Figures SA-S D,
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`below. The sealing structure provides an optimal combination of comfort, stability and
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`fit for an in-ear earpiece.
`
`D.
`
`The Products at Issue
`
`1.
`
`The Accused Products
`
`The accused products in this investigation are earpiece devices and components
`
`thereof, including the identified accused products of the defaulting (or non-participating)
`
`respondents. See First Am. Compl., 1] 45, Ex. 35; see also Joint Stipulation Regarding
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`Representative Products at Issue (EDIS Doc. ID No. 659488) (Oct. 22, 2018).
`
`Below is a table that provides a summary of the defaulting (or non-participating)
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`respondents’ accused products, including a photograph of each accused product, and a
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`reference to alleged infringement of the asserted claims for each product:
`
`Asserted Patents (Claims) :
`
`‘852 patent (1, 7);
`
`‘590 patent (1, 6); and
`‘853 patent (1, 8).
`
`_
`
`_
`
`‘852 patent (1, 7);
`‘590 patent(1,6);
`6
`.
`‘853 patent (1. 811), and
`364 patent (1, 11).
`
`
`
`
`
`! Dcfaulting l
`- Respondent
`I
`
`Accused
`Product(s)
`
`l Exemplary Product
`.-
`Image
`
`
`
`.
`
`'.
`
`‘
`|
`.
`'
`
`14
`
` :
`
`: lMore iBFree
`
`.
`4
`
`'
`‘D°d°°°°‘ DA
`109
`
`1'
`
`l bl‘siflifc
`I
`’
`|
`=
`
`|i
`
`'
`
`giii:
`! Limited
`
`
`
`PUBLIC VERSION
`
`Defaulting I
`Respondent
`
`Accused
`Product(s)
`
`; Exemplary Product
`Image
`
`I
`
`Assorted Patents (Claims)
`
`Dodocool
`Earhooks
`
`_
`:‘852 patent (1, 7).
`
`
`Earhooks I‘287patent(1,6,7,8).
` PhalSBIBHS730* I‘287patentu,6,78)
`
`
`
`.
`
`.
`
`Mlmddm
`
`Phaiscr LLC ;
`
`'Misodiko
`
`:‘852 patent(l, 7); and
`
`.
`
`_
`
`"852 patent (1,7); and
`
`Phaiser BBS-750
`
`'852 patent (l, 7);
`‘287 patent (1, 6, 7, 8);
`“590 patent (1,6);
`"853 patent(1, 8); and
`.‘364 patent (l, 11).
`
`'
`
`”we“
`
`Phonete Silicone
`
`RubberEarbuds
`
`r
`
`‘852 patent (1, 7); and
`
`‘237patent(1,6,7,8)
`
`15
`
`
`
`PUBLIC VERSION
`
`I Exemplary Product
`Image
`
`.
`
`_
`
`.
`
`
`TomRich T330
`
`E SMARTOMI Q5
`
`J i|
`
`V4lnk, Inc.
`
`See Mem. at 24-26
`
`2.
`
`The Domestic Industry Products
`
`Bose has identified the Bose SoundSport® in-ear headphones, SoundSport®
`
`Pulse wireless headphones, SoundSport® wireless headphones, SoundTrue® Ultra in-ear
`
`headphones, and SoundSport® Free wireless headphones as the domestic industry
`
`products. See Mem. at 28 [1.8; Mem. Ex. S (Maguire Decl.)1[ 3; First Am. Compl., 1} 17’2,
`
`Exs. 31, 32; Bose Identification of Products It Will Rely Upon to Satisfy the Domestic
`
`Industry Requirement (EDIS Doc. ID No. 654098) (Aug. 27, 2018).
`
`16
`
`.
`3 Asserted Patents (Claims)
`"—i‘"
`.
`.
`__.__... .—1
`
`
`
`
`‘852 patent (l, 7);
`‘287 patent (1, 6, 7, 8);
`‘590 patent (I, 6); ‘853
`{patent (l,
`8); and
`' ‘364 patent (1, 11).
`
`
`
`"852 patent (1, 7); and
`‘287 patent (l, 6, 7, 8).
`
`i.
`
`
`
`‘852 patent (I, 7); and
`‘253 patent (1, 3, 4, 6).
`
`Accused
`Product(s)
`
`:.
`
`-
`
`..
`
`REVJAMS
`Active Sport Pro
`
`.
`
`Defaulting
`Respondent
`.
`.
`.
`
`.
`
`I| | i |
`
`REVJAMS
`
`TomRieh
`
`
`
`PUBLIC VERSION
`
`Further, Bose identifies the (i) Bose SoundSport® in—ear headphones, and (ii)
`
`Bose SoundSport® wireless headphones, as representative of the domestic industry
`
`products. See Mem. at 27-28, Mem. Ex. S (Maguire Decl.) at 2 n.l.
`
`II.
`
`Jurisdiction
`
`No party has contested the Commission’s in rem jurisdiction over the accused
`
`products. Evidence of specific instances of importation of the accused products is
`
`discussed in the importation section of this initial determination. Accordingly, it is found
`
`that the Commission has in rem jurisdiction over the accused products.
`
`As indicated in the Commission’s notice of investigation, discussed above, this
`
`investigation involves the importation of products alleged to infringe United States
`
`patents in a manner that violates section 337 of the Tariff Act, as amended. No party has
`
`contested the Commission’s jurisdiction over the subject matter of this investigation. It is
`
`found that the Commission has subject matter jurisdiction over this investigation.
`
`No party has contested the Commission’s personal jurisdiction over it. In
`
`particular, the respondents are all deemed to have received notice of this investigation at
`
`least through service of the complaint and notice of investigation. It is therefore found
`
`that the Commission has personal jurisdiction over all parties.
`
`II].
`
`General Principles of Applicable Law
`
`A.
`
`Summary Determination
`
`Section 337 prohibits “[t]he importation into the United States, the sale for
`
`importation, or the sale within the United States after importation by the owner, importer,
`
`or consignee, of articles that (i) infringe a valid and enforceable United States patent ....”
`
`17
`
`
`
`PUBLIC VERSION
`
`19 U.S.C. § l337(a)(l)(B). A complainant need only prove importation of a single
`
`accused product to satisfy the importation element. See Certain Trolley Wheel
`
`Assemblies, Inv. No. 337-TA—161, Comm’n Op. at 7-3, USITC Pub. No. 1605 (Nov.
`
`1984).
`
`The Commission Rules provide that “[a]ny party may move with any necessary
`
`supporting affidavits for a summary determination in its favor upon all or part of the
`
`issues to be determined in the investigation. 19 C.F.R. § 210.13(a). Summary
`
`determination “shall be rendered if pleadings and any depositions, answers to
`
`interrogatories, and admissions on file, together with the affidavits, if any, show that
`
`there is no genuine issue as to any material fact and that the moving party is entitled to
`
`summary determination as a matter of law.” 19 C.F.R. § 210. 1 8(1)).
`
`B.
`
`Claim Construction
`
`Claim construction begins with the plain language of the claim.2 Claims should
`
`be given their ordinary and customary meaning as understood by a person of ordinary
`
`skill in the art, viewing the claim terms in the context of the entire patent.3 Phillips v.
`
`AWH Corp, 415 F.3d 1303, 1312-13 (Fed. Cir. 2005), cert. denied, 546 U.S. 1170
`
`(2006).
`
`2 Only those claim terms that are in controversy need to be construed, and only to the
`extent necessary to resolve the controversy. Vanderiande Indus. Nederlana’ BVv. In! ’t'
`Trade Comm, 366 F.3d 1311, 1323 (Fed. Cir. 2004); Vivid Tech, Inc. v. American Sci. «f:
`Eng 'g, Inc, 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`3 Factors that may be considered when determining the level of ordinary skill in the art
`include: “( l ) the educational level of the inventor; (2) type of problems encountered in
`the an; (3) prior art solutions to those problems; (4) rapidity with which innovations are
`made; (5') sophistication of the technology; and (6) educational level of active workers in
`the field.” Environmental Designs, Ltd. v. Union Oil Ca, 713 F.2d 693, 696 (Fed. Cir.
`1983), cert. denied, 464 U.S. 1043 (I984).
`
`18
`
`
`
`PUBLIC VERSION
`
`in some instances, claim terms do not have particular meaning in a field of art,
`
`and claim construction involves little more than the application of the widely accepted
`
`meaning of commonly understood words. Phillips, 415 F.3d at 1314. “in such
`
`circumstances, general purpose dictionaries may be helpful-” Id.
`
`In many cases, claim terms have a specialized meaning, and it is necessary to
`
`determine what a person of skill in the art would have understood the disputed claim
`
`language to mean. “Because the meaning of a claim term as understood by persons of
`
`skill in the art is often not immediately apparent, and because patentees frequently use
`
`terms idiosyncratically, the court looks to “those sources available to the public that show
`
`what a person of skill in the art would have understood disputed claim language to
`
`mean.” Phillips, 415 F.3d at 1314 (quoting Imam/Pure Water, Inc. v. Safari Water
`
`Filtration Sysx. Inc, 381 F.3d 1111, 1116 (Fed. Cir. 2004)). The public sources identified
`
`in Phillips include “the words of the claims themselves, the remainder of the
`
`specification, the prosecution history, and extrinsic evidence concerning relevant
`
`scientific principles, the meaning of technical terms, and the state of the art." Id. (quoting
`
`Innova, 381 F.3d at 1116).
`
`In cases in which the meaning of a claim term is uncertain, the specification
`
`usually is the best guide to the meaning of the term. Phiflips, 415 F.3d at 1315. As a
`
`general rule, the particular examples or embodiments discussed in the specification are
`
`not to be read into the claims as limitations. Marmara v. Westview Instruments, Inc. , 52
`
`F.3d 967, 979 (Fed. Cir. 1995) (en bane), 427%, 517 US. 370 (1996). The specification
`
`is, however, always highly relevant to the claim construction analysis, and is usually
`
`dispositive. Phithps, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc, 90
`
`I9
`
`
`
`PUBLIC VERSION
`
`F.3d 1576, 1582 (Fed. Cir. 1996)). Moreover, “[t]he construction that stays true to the
`
`claim language and most naturally aligns with the patent’s description of the invention
`
`will be, in the end, the correct construction.” 1d. at 1316.
`
`C.
`
`Infringement
`
`1.
`
`Direct Infringement
`
`Under 35 U.S.C. §271(a), direct infringement consists of making, using, offering
`
`to sell, or selling a patented invention without consent of the patent owner. The
`
`complainant in a section 337 investigation bears the burden of proving infringement of
`
`the asserted patent claims by a “preponderance of the evidence.” Certain Flooring
`
`Products, Inv. No. 337-TA-443, Comm’n Notice of Final Determination of No Violation
`
`of Section 337, 2002 WL 448690, at *59, (Mar. 22, 2002); Enercon GmbH v. Int? Trade
`
`Comm ’n, 151 F.3d 1376 (Fed. Cir. 1998).
`
`Literal infringement of a claim occurs when every limitation recited in the claim
`
`appears in the accused device, £8. , when the properly construed claim reads on the
`
`accused device exactly.4 Amhfl Enters, Ltd. v. Wawa, Inc, 81 F.3d 1554, 1562 (Fed. Cir.
`
`1996); Southwafl Tech. 1:. Cardinal! IG Ca, 54 F.3d 1520, 1575 (Fed Cir. 1995).
`
`2.
`
`Indirect Infringement
`
`a.
`
`Induced Infringement
`
`Section 271(1)) of the Patent Act provides: “Whoever actively induces
`
`infringement of a patent shall be liable as an infringer.” 35 U.S.C. § 271(b).
`
`4 Each patent claim element or limitation is considered material and essential. London v.
`Carson Pirie Scott (1’: Ca, 946 F.2d 1534, 1538 (Fed. Cir. 1991). If an accused device
`lacks a limitation of an independent claim, the device cannot infringe a dependent claim.
`See Wahpelon Canvas Co. v. Frontier, Inc, 870 F.2d 1546, 1552 n.9 (Fed. Cir. 1989).
`
`20
`
`
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