In the Matter of
`
`CERTAIN HEIGHT-ADJUSTABLE DESK
`PLATFORMS AND COMPONENTS
`THEREOF
`
`337-TA-1125
`
`Publication 5081
`June 2020
`U.S. International Trade Commission
`
`Washington, DC 20436
`
`

`

`U.S. International Trade Commission
`
`COMMISSIONERS
`
`David S. Johanson, Chairman
`Rhonda K. Schmidtlein, Commissioner
`Jason E. Kearns, Commissioner
`Randolph J. Stayin, Commissioner
`Amy A. Karpel, Commissioner
`
`Address all communications to
`Secretary to the Commission
`United States International Trade Commission
`Washington, DC 20436
`
`

`

`U.S. International Trade Commission
`
`Washington, DC 20436
`www.usitc.gov
`
`In the Matter of
`
`CERTAIN HEIGHT-ADJUSTABLE DESK
`PLATFORMS AND COMPONENTS
`THEREOF
`
`337-TA-1125
`
`Publication 5081
`
`June 2020
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN HEIGHT-ADJUSTABLE
`DESK PLATFORMS AND
`COMPONENTS THEREOF
`
`Investigation No. 337-TA-1125
`
`ISSUANCE OF A GENERAL EXCLUSION ORDER AND
`CEASE AND DESIST ORDERS; TERMINATION OF THE INVESTIGATION
`
`AGENCY:
`
`U.S. Intemational Trade Connnission.
`
`ACTION:
`
`Notice.
`
`SUMMARY: Notice is hereby given that the U.S. International Trade Commission has
`determined to issue: (1) a general exclusion order (“GEO”) prohibiting the unlicensed
`importation of platfonns that sit on an existing desk or work surface and can be adjusted to
`different heights that infringe one or more of claims 1-2, 4, and 10-l_l of U.S. Patent No.
`9,113,703 (“the ’703 patent”); claims 11, 16, 18, and 22-26 of U.S. Patent No. 9,277,809 (“the
`’809 patent”); claims 1, 4-5, 11-12, 26, and 33-36 of U.S. Patent No. 9,554,644 (“the ’644
`patent”); and claims 20-21 and 40-50 of U.S."Patent No. 9,924,793 (“the ’793 patent”); and (2)
`cease and desist orders (“CDO”) against certain respondents that had not participated in the
`above-captioned investigation. The investigation is terminated in its entirety.
`
`FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the General
`Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436,
`telephone (202) 205-2392. 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 conceming the
`Cormnission may also be obtained by accessing its Intemet server (httgs://www.usitc. gov). The
`public record for this investigation may be viewed on the Cormnission’s Electronic Docket
`Information System (“EDIS”) (httgs://edis.usitc. gov). Hearing-impaired persons are advised that
`information on this matter can be obtained by contacting the Commission’s TDD terminal,
`telephone (202) 205-1810.
`
`SUPPLEMENTARY INFORMATION: On July 30, 2018, the Commission instituted this
`investigation based on a complaint and supplements thereto filed on behalf of Varidesk LLC
`(“Varidesk”) of Coppell, Texas. 83 FR 36621 (July 30, 2018). The complaint alleges violations
`of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the
`importation into the United States, the sale for importation, and the sale within the United States
`
`­
`

`

`after importation of certain height-adjustable desk platforms and components thereof by reason
`of infringement of one or more claims of the ’703, the ’809, the ’644, and the ’793 patents. Id.
`The complaint further alleges that an industry in the United States exists as required by section
`337. Id
`
`The Commission’s notice of investigation named thirty-one respondents: (1) Albeit LLC
`of San Francisco, Califoniia (“Albeit”); (2) ATC Supply LLC of Plainfield, Illinois (“ATC
`Supply”); (3) Shenzhen Atc Network Scienology CO., LTD. of Guangdong, China (“Shenzhen
`ATC”); (4) Best Choice Products of Ontario, Califomia (“Best Choice”); (5) Huizhou Chang He
`Home Supplies Co., Ltd. of Guangdong, China (“Chang He”); (6) Dakota Trading, Inc. of
`Emerson, New Jersey (“Dakota”); (7) Designa Inc. of Guangdong, China (“Designa”);
`(8) Designa Group, Inc. of El Dorado Hills, California (“Designa Group”); (9) Eureka LLC of El
`Dorado Hills, Califomia (“Eureka”); (10) LaMountain Intemational Group LLC of Elk Grove,
`California (“LaMountain”); (11) Amazon Import Inc. of El Monte, California (“Amazon
`Imports”); (12) Hangzhou Grandix Electronics Co., Ltd. of Zhejiang, China (“Grandix”);
`(13) Ningbo GYL Intemational Trading Co., Ltd. of Zhejiang, China (“Ningbo GYL”);
`(14) Knape & Vogt Manufacturing Co. of Grand Rapids, Michigan (“Knape & Vogt”); (15) JV
`Products Inc. of Milpitas, Califomia (“JV Products”); (16) Vanson Distributing, Inc. of Milpitas,
`Califomia (“Vanson Distributing”); (17) Vanson Group, Inc. of Milpitas, Califomia (“Vanson
`Group”); (18) S.P. Richards Co. DBA Lorell of Smyrna, Georgia (“Lorell”); (19) Nantong Jon
`Ergonomic Office Co., Ltd. of Jiangsu, China (“Nanotong Jon”); (20) Jiangsu Omni Industrial
`Co., Ltd. of Jiangsu, China (“Jiangsu Omni”); (21) OmniMax USA, LLC of Anna, Texas
`(“OrnniMax USA”); (22) Haining Orizeal Import and Export Co., Ltd. of Zhejiang, China
`(“Haining Orizeal”); (23) Qidong Vision Mounts Manufacturing Co., Ltd. of Jiangsu, China
`(“Vision Mounts”); (24) Hangzhou KeXiang Keji Youxiangongsi of Hangzhou, China
`(“Hangzhou KeXiang”); (25) Smugdesk, LLC of La Puente, California (“Smugdesk”);
`(26) Venditio Group, LLC of Elkton, Florida (“Venditio”); (27) Versa Products Inc. of Los
`Angeles, California (“Versa”); (28) Victor Technology, LLC of Bolingbrook, Illinois (“Victor”);
`(29) CKnapp Sales, Inc. DBA Vivo of Goodfield, Illinois (“Vivo”); (30) Wuhu Xingdian
`Industrial Co., Ltd. of Anhui, China (“Wuhu Xingdian”); and (31) Wuppessen, Inc. of Ontario,
`Califomia (“Wuppessen”). Id. The Office of Unfair Import Investigations (“OUII”) was also
`named as a party in this investigation.
`Id.
`
`'
`
`_
`
`_ During the course of the investigation, Varidesk settled with the following respondents:
`Venditio, Jiangsu Omni, OmniMax USA, Knape & Vogt, Wuppessen, Victor, Versa, Designa,
`Designa Group, Eureka, Chang He, Vision Mounts, Vivo, Nanotong Jon, Best Choice, Grandix,
`Hangzhou I(eXiang, Lorell, and Dakota. Order No. 7, unreviewed, Notice (Sept. 18, 2018);
`Order No. 11, unreviewed, Notice (Sept. 25, 2018); Order No. 12, unreviewed, Notice (Oct. 4,
`2018); Order No. 13, unreviewed, Notice (Oct. 4, 2018); Order No. 16, unreviewed, Notice (Nov.
`9, 2018); Order No. 18, unreviewed, Notice (Nov. 29, 2018); Order No. 20, unreviewed, Notice
`(Feb. 21, 2019); Order No. 23, unreviewed, Notice (Mar. 12, 2019); Order No. 25, unreviewed,
`Notice (Apr. 5, 2019); Order No. 31, unreviewed, Notice (May 16, 2019). In addition, the
`investigation terminated as to LaMountain based on a consent order stipulation. Order No. 15,
`unreviewed, Notice (Oct. 22, 2018). The investigation has also previously terminated as to
`certain claims of each asserted patent. Order No. 30, unreviewed, Notice (May 13, 2019).
`
`2
`
`

`

`On April 11, 2019, Varidesk moved for summary determination of a violation of section
`337 as to the remaining eleven respondents, who were served with a copy of the complaint, but
`had not filed a response or participated in the investigation. On April 24, 2019, Varidesk filed a
`supplement to the motion. The remaining respondents (collectively, “the Non-Participating
`Respondents”) are: (1) Albeit, (2) ATC Supply, (3) Shenzhen ATC, (4) Amazon Imports,
`(5) Ningbo GYL, (6) JV Products, (7) Vanson Distributing, (8) Vanson Group, (9) Haining
`Orizeal, (10) Smugdesk, and (11) Wuhu Xingdian. On April 26, 2019, OUII filed a response
`supporting Varidesk’s motion in substantial part.
`
`On September 13, 2019, the presiding administrative lawjudge (“ALJ”) issued an initial
`detennination (“ID”) (Order No. 33), and a recommended determination (“RD”) on remedy and
`bonding. The ID granted the motion in part. Specifically, the ALJ found, inter alia, (1) that
`Varidesk established the importation requirement as to each Non-Participating Respondent,
`except for Haining Orizeal; (2) that Varidesk established infringement as to all accused products
`and all remaining asserted claims (claims 1-2, 4, and 10-11 of the ’703 patent; claims 11, 16, 18,
`and 22-26 of the ’809 patent; claims 1, 4-5, 11-12, 26, and 33-36 of the ’644 patent; and claims
`20-21 and 40-50 of the ’793 patent); and (3) that Varidesk satisfied the domestic industry
`requirement for each asserted patent. In addition, the ALJ recommended that the Commission
`issue a general exclusion order and impose a 100 percent bond during the period of Presidential
`review. The ALJ also recommended that the Commission not issue cease and desist orders
`directed to the Non-Participating Respondents.
`
`On October 29, 2019, the Commission determined not to review the ID. 84 FR 59417
`(Nov. 4, 2019). The C0rmnission’s determination resulted in finding a violation of section 337
`as to Albeit, ATC Supply, Shenzhen ATC, Amazon Imports, Ningbo GYL, JV Products, Vanson
`Distributing, Vanson Group, Smugdesk, and Wuhu Xingdiarr, but not as to Haining Orizeal. See
`id. The Commission also requested written submissions on remedy, the public interest, and
`bonding. See id. On November 13, 2019, Varidesk and OUII submitted their briefs on remedy,
`the public interest, and bonding. Varidesk further filed a response brief on November 20, 2019.
`
`The Commission has determined that the appropriate remedy in this investigation is:
`(1) a GEO prohibiting the unlicensed importation of platforms that sit on an existing desk or
`work surface and can be adjusted to different heights that infringe one or more of claims 1-2, 4,
`and 10-11 ofthe ’703 patent; claims 11, 16, 18, and 22-26 ofthe ’809 patent; claims 1, 4-5, 11­
`12, 26, and 33-36 of the ’644 patent; and claims 20-21 and 40-50 of the ’793 patent; and
`(2) CDOs prohibiting respondents Albeit, ATC Supply, Amazon Import, JV Products, Vanson
`Distributing, Vanson Group, and Smugdesk from further importing, selling, and distributing
`infringing products in the United States. (Chairman Johanson and Commissioner Stayin dissent
`with respect to the Commission’s determination to issue CDOs in this investigation.) The
`Commission has also determined that the public interest factors enumerated in paragraphs
`337(d)(l) and (f)(l), 19 U.S.C. l337(d)(1) and (f)(l), do not preclude issuance of these remedial
`orders. Finally, the Commission has determined that the bond during the period of Presidential
`review pursuant to 19 U.S.C. 1337(j) shall be in the amount of 100 percent of the entered value
`of the imported articles. The Commission’s order was delivered to the President and to the
`United States Trade Representative on the day of its issuance. The investigation is hereby
`terminated.
`
`3
`
`

`

`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 ofthe Commission’scRules of
`Practice and Procedure (19 CFR part 210).
`
`By order of the Commission. 7%
`
`Issued:
`
`January 22, 2020
`
`Lisa R. Barton
`Secretary to the Commission
`
`4
`
`

`

`CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
`COMPONENTS THEREOF .
`
`Inv. N0. 337-TA-1125
`
`PUBLIC CERTIFICATE OF SERVICE
`
`<1
`
`I, Lisa R. Barton, hereby certify that the attached NOTICE has been served by hand
`upon the Commission Investigative Attorney, Andrew Beverina, Esq., and the following parties
`as indicated, on January 22, 2020.
`
`Wt-?@
`
`Lisa R. Barton, Secretary
`U.S. Intemational Trade Cormnission
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`’
`
`a
`
`|:| Via Hand Delivery
`Via Express Delivery
`U Via First Class Mail
`III Other:
`
`Cl Via Hand Delivery
`El Via Express Delivery
`III Via First Class Mail
`CI Other:
`
`l:| Via Hand Delivery
`Via Express Delivery
`U Via First Class Mail
`[:1 Other:
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`1
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`El Via-Hand Delivery
`El Via Express Delivery
`III Via First Class Mail
`El Other:
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`U Via Hand Delivery
`Via Express Delivery
`Cl Via First Class Mail
`U Other:
`
`On Behalf of Complainants Varidesk LLC
`
`Adam R. Hess, Esq.
`SQUIRE PATTON BOGGS
`2550 M Street, NW
`Washington D.C. 20037
`
`Respondents:
`
`Albeit LLC '
`1351 Broadway St.
`San Francisco,pCA 94109
`
`ATC Supply LLC
`12604 Canterbury Dr.
`Plainfield, IL 60585-3000
`
`Shenzhen Atc Network Scienology Co., Ltd.
`Room 1902, Zian Business Building,
`The Xinan Second Road, Baoan District
`Shenzhen, Guangdong 518000 China
`
`Amazon Import Inc;
`9910 BaldwinPlace
`El Monte, CA 91731
`
`­
`

`

`K
`
`CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
`COMPONENTS THEREOF
`
`Inv. N0. 337-TA-1125
`
`Certificate of Service 4 Page 2
`
`Ningbo GYL International Trading Co., Ltd.
`Mingbin Road 228
`‘
`‘
`Luoto Area
`Zhenhai 315202, Ningbo, Zhejian, China
`
`I
`
`JV Products Inc.
`1825 Houret Ct.
`Milpitas, CA 95035
`
`Vanson Distributing, Inc.
`1825 Houret Ct.
`Milpitas, CA 95035
`
`Vanson Group, Inc.
`1825 Houret Ct.
`Milpitas, CA 95035
`
`Haining Orizeal Import and Export Co., Ltd
`4"‘Floor, Building B, Jinhui Plaza
`No.486, South Hai Chang Road
`Haining 314400, China
`
`Smugdesk, LLC
`14839 Proctor Avenue, Suite D
`La Puente, CA 91746
`
`Wuhu Xingdian Industrial Co.»,Ltd.
`No. 168 Xici 5'“ Rd.
`Mechanical Industrial Zone
`Wuhu, Anhui, China
`
`S
`
`III Via Hand Delivery
`Via Express Delivery
`El Via First Class Mail
`El Other:
`_
`
`El Via Hand Delivery
`Via Express Delivery
`El Via First Class Mail
`El Other:
`
`III Via Hand Delivery
`E Via Express Delivery
`[II Via First Class Mail
`III Other:
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`'
`
`Cl Via Hand Delivery
`Via Express Delivery
`Cl Via First Class Mail
`1:! Other:
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`El Via Hand Delivery
`Via Express Delivery
`El Via First Class Mail
`Cl Other:
`'
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`I
`
`I] Via Hand Delivery
`Via Express Delivery
`U Via First Class Mail
`II] Other:
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`El Via Hand Delivery
`[XIVia Express Delivery
`Cl Via First Class Mail
`El Other:
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN HEIGHT-ADJUSTABLE
`DESK PLATFORMS AND
`COMPONENTS THEREOF
`
`Investigation No. 337-TA-1125
`
`GENERAL EXCLUSION ORDER
`
`The Commission has determined that there is a violation of section 337 of the Tariff
`
`Act of 1930, as amended, 19 U.S.C. § 1337, in the unlawful importation, sale for importation,
`
`or sale within the United States after importation of certain height-adjustable desk platforms and
`
`components thereof that infringe one or more of claims 1-2, 4, and 10-11 of U.S. Patent No.
`
`9,113,703 ("the '703 patent"); claims 11, 16, 18, and 22-26 of U.S. Patent No. 9,277,809
`
`("the '809 patent"); claims 1, 4-5, 11-12, 26, and 33-36 of U.S. Patent No. 9,554,644 ("the '644
`
`patent"); and claims 20-21 and 40-50 of U.S. Patent No. 9,924,793 ("the '793 patent").
`
`Having reviewed the record in this investigation, including the written submissions
`
`of the parties, the Commission has made its determination on the issues of remedy, the
`
`public interest, and bonding. The Commission has determined that a general exclusion from
`
`entry for consumption is necessary to prevent circumvention of an exclusion order limited to
`
`products of named persons because there is a pattern of violation of section 337 and it is
`
`difficult to identify the source of infringing products. Accordingly, the Commission has
`
`determined to issue a general exclusion order prohibiting the unlicensed importation of
`
`infringing platforms that sit on an existing desk or work surface and can be adjusted to
`
`different heights.
`
`1
`
`

`

`The Commission has also determined that the public interest factors enumerated in
`
`19 U.S.C. § 1337(d) do not preclude issuance of the general exclusion order, and that the
`
`bond during the Presidential review period shall be in the amount of one hundred (100) percent
`
`of the entered value of the articles in question.
`
`Accordingly, the Commission hereby ORDERS that:
`
`I.
`
`Platforms that sit on an existing desk or work surface and can be adjusted to
`
`different heights that infringe one or more of claims 1-2, 4, and 10-11 of the '703
`
`patent; claims 11, 16, 18, and 22-26 of the '809 patent; claims 1, 4-5, 11-12, 26,
`
`and 33-36 of the '644 patent; and claims 20-21 and 40-50 of the '793 patent
`
`("covered articles") are excluded from entry into the United States for
`
`consumption, entry for consumption from a foreign-trade zone, or withdrawal
`
`from a warehouse for consumption, for the remaining terms of the patents, except
`
`under license of the patent owner or as provided by law.
`
`2.
`
`Notwithstanding paragraph 1 of this Order, covered articles are entitled to entry
`
`into the United States for consumption, entry for consumption from a foreign-
`
`trade zone, or withdrawal from a warehouse for consumption, under a bond in
`
`the amount of one hundred (100) percent of entered value of the products
`
`pursuant to subsection (j) of section 337 (19 U.S.C. § 1337(j)), and the
`
`Presidential Memorandum for the United States Trade Representative of July 21,
`
`2005 (70 Fed Reg. 43251), from the day after this Order is received by the
`
`United States Trade Representative and until such time as the United States
`
`Trade Representative notifies the Commission that this Order is approved or
`
`disapproved but, in any event, not later than sixty (60) days after the date of
`
`2
`
`

`

`receipt of this Order. All entries of covered articles made pursuant to this
`
`paragraph are to be reported to U.S. Customs and Border Protection ("CBP"), in
`
`advance of the date of the entry, pursuant to procedures CBP establishes.
`
`3.
`
`At the discretion of CBP and pursuant to procedures it establishes, persons
`
`seeking to import covered articles that are potentially subject to this Order may
`
`be required to certify that they are familiar with the terms of this Order, that
`
`they have made appropriate inquiry, and thereupon state that, to the best of their
`
`knowledge and belief, the products being imported are not excluded from entry
`
`under paragraph 1 of this Order. At its discretion, CBP may require persons who
`
`have provided the certification described in this paragraph to furnish such
`
`records or analyses as are necessary to substantiate the certification.
`
`4.
`
`In accordance with 19 U.S.C. § 1337(1), the provisions of this Order shall not
`
`apply to covered articles that are imported by and for the use of the United
`
`States, or imported for, and to be used for, the United States with the
`
`authorization or consent of the Government.
`
`5.
`
`The Commission may modify this Order in accordance with the procedures
`
`described in section 210.76 of the Commission's Rules of Practice and
`
`Procedure (19 C.F.R. § 210.76).
`
`6.
`
`The Commission Secretary shall serve copies of this Order upon each party of
`
`record in this investigation and upon CBP.
`
`7.
`
`Notice of this Order shall be published in the Federal Register.
`
`3
`
`

`

`By order of the Commission.
`
`Issued: January 22, 2020
`
`Ooot)
`
`Lisa R. Barton
`Secretary to the Commission
`
`

`

`CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-1125
`
`PUBLIC CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached Order, Commission has been served
`by hand upon the Commission Investigative Attorney, Andrew Beverina, Esq., and the
`following parties as indicated, on January 22, 2020.
`
`'1960.5:
`
`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`On Behalf of Complainants Varidesk LLC:
`
`Adam R. Hess, Esq.
`SQUIRE PATTON BOGGS
`2550 M Street, NW
`Washington D.C. 20037
`
`Respondents:
`
`Albeit LLC
`1351 Broadway St.
`San Francisco, CA 94109
`
`ATC Supply LLC
`12604 Canterbury Dr.
`Plainfield, IL 60585-3000
`
`Shenzhen Atc Network Scienology Co., Ltd.
`Room 1902, Zian Business Building,
`The Xinan Second Road, Baoan District
`Shenzhen, Guangdong 518000 China
`
`Amazon Import Inc.
`9910 Baldwin Place
`El Monte, CA 91731
`
`CI Via Hand Delivery
`0 Via Express Delivery
`1:1 Via First Class Mail
`CI Other:
`
`El Via Hand Delivery
`El Via Express Delivery
`CI Via First Class Mail
`CI Other:
`
`0 Via Hand Delivery
`M Via Express Delivery
`El Via First Class Mail
`CI Other:
`
`CI Via Hand Delivery
`El Via Express Delivery
`CI Via First Class Mail
`CI Other:
`
`CI Via Hand Delivery
`El Via Express Delivery
`CI Via First Class Mail
`CI Other:
`
`

`

`CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-1125
`
`Certificate of Service — Page 2
`
`Ningbo GYL International Trading Co., Ltd.
`Mingbin Road 228
`Luoto Area
`Zhenhai 315202, Ningbo, Zhejian, China
`
`JV Products Inc.
`1825 Houret Ct.
`Milpitas, CA 95035
`
`Vanson Distributing, Inc.
`1825 Houret Ct.
`Milpitas, CA 95035
`
`Vanson Group, Inc.
`1825 Houret Ct.
`Milpitas, CA 95035
`
`Haining Orizeal Import and Export Co., Ltd.
`4th Floor, Building B, Jinhui Plaza
`No.486, South Hai Chang Road
`Haining 314400, China
`
`Smugdesk, LLC
`14839 Proctor Avenue, Suite D
`La Puente, CA 91746
`
`Wuhu Xingdian Industrial Co., Ltd.
`No. 168 Xici 5th Rd.
`Mechanical Industrial Zone
`Wuhu, Anhui, China
`
`5
`
`CI Via Hand Delivery
`El Via Express Delivery
`0 Via First Class Mail
`I=1 Other:
`
`O Via Hand Delivery
`El Via Express Delivery
`0 Via First Class Mail
`0 Other:
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`O Via Hand Delivery
`IZ Via Express Delivery
`0 Via First Class Mail
`0 Other:
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`0 Via Hand Delivery
`CE Via Express Delivery
`0 Via First Class Mail
`0 Other:
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`CI Via Hand Delivery
`El Via Express Delivery
`O Via First Class Mail
`0 Other:
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`0 Via Hand Delivery
`IZ Via Express Delivery
`O Via First Class Mail
`0 Other:
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`CI Via Hand Delivery
`IZ Via Express Delivery
`0 Via First Class Mail
`CI Other:
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN HEIGHT-ADJUSTABLE
`DESK PLATFORMS AND
`COMPONENTS THEREOF
`
`Investigation No. 337-TA-1125
`
`CEASE AND DESIST ORDER
`
`IT IS HEREBY ORDERED THAT Respondent Smugdesk, LLC cease and desist from
`
`conducting any of the following activities in the United States: importing, selling, marketing,
`
`advertising, distributing, transferring (except for exportation), soliciting United States agents or
`
`distributors, and aiding or abetting other entities in the importation, sale for importation, sale
`
`after importation, transfer (except for exportation), or distribution of desk platforms that sit on an
`
`existing desk or work surface and can be adjusted to different heights that infringe one or more
`
`of claims 1, 2, 4, 10, and 11 of U.S. Patent No. 9,113,703 (the "703 patent"); claims 11, 16, 18,
`
`and 22-26 of U.S. Patent No. 9,277,809 (the "809 patent"); claims 1, 4, 5, 11, 12, 26, and 33-36
`
`of U.S. Patent No. 9,554,644 (the '644 patent"); and claims 20, 21, and 40-50 of U.S. Patent
`
`No. 9,924,793 (the '793 patent") ("Asserted Patents") in violation of section 337 of the Tariff
`
`Act of 1930, as amended (19 U.S.C. § 1337).
`
`I.
`
`Definitions
`
`As used in this Order:
`
`(A) "Commission" shall mean the United States International Trade Commission.
`
`(B) "Complainant" shall mean Varidesk LLC of Coppell, Texas.
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`(C) "Respondent" shall mean Smugdesk, LLC of La Puente, California.
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`(D) "Person" shall mean an individual, or any non-governmental partnership, firm,
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`association, corporation, or other legal or business entity other than Respondent or
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`its majority-owned or controlled subsidiaries, successors, or assigns.
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`(E) "United States" shall mean the fifty States, the District of Columbia, and Puerto
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`Rico.
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`(F) The terms "import" and "importation" refer to importation for entry for
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`consumption under the Customs laws of the United States.
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`(G) The term "covered products" shall mean desk platforms that sit on an existing
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`desk or work surface and can be adjusted to different heights that infringe one or
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`more of claims 1, 2, 4, 10, and 11 of the '703 patent; claims 11, 16, 18, and 22-26
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`of the'809 patent; claims 1, 4, 5, 11, 12, 26, and 33-36 of the '644 patent; and
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`claims 20, 21, and 40-50 of the '793 patent. Covered products shall not include
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`articles for which a provision of law or license avoids liability for infringement.
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`II.
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`Applicability
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`The provisions of this Cease and Desist Order shall apply to Respondent and to any of its
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`principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled
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`(whether by stock ownership or otherwise) and majority-owned business entities, successors, and
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`assigns, and to each of them, insofar as they are engaging in conduct prohibited by Section III,
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`infra, for, with, or otherwise on behalf of, Respondent.
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`III. Conduct Prohibited
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`The following conduct of Respondent in the United States is prohibited by this Order.
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`For the remaining term of the Assertive Patents, Respondent shall not:
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`(A) import or sell for importation into the United States covered products;
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`(B) market, distribute, sell, or otherwise transfer (except for exportation) imported
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`covered products;
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`(C) advertise imported covered products;
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`(D) solicit United States agents or distributors for imported covered products; or
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`(E) aid or abet other entities in the importation, sale for importation, sale after
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`importation, transfer, or distribution of covered products.
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`IV. Conduct Permitted
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`Notwithstanding any other provision of this Order, specific conduct otherwise prohibited
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`by the terms of this Order shall be permitted if:
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`(A) in a written instrument, the owner of the Asserted Patents licenses or authorizes such
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`specific conduct; or
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`(B) such specific conduct is related to the importation or sale of covered products by or
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`for the United States.
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`V. Reporting
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`For purposes of this requirement, the reporting periods shall commence on January 1 of
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`each year and shall end on the subsequent December 31. The first report required under this
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`section shall cover the period from the date of issuance of this order through December 31, 2020.
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`This reporting requirement shall continue in force until such time as Respondent has truthfully
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`reported, in two consecutive timely filed reports, that it has no inventory of covered products in
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`the United States.
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`Within thirty (30) days of the last day of the reporting period, Respondent shall report to
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`the Commission (a) the quantity in units and the value in dollars of covered products that it has
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`(i) imported and/or (ii) sold in the United States after importation during the reporting period,
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`and (b) the quantity in units and value in dollars of reported covered products that remain in
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`inventory in the United States at the end of the reporting period.
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`When filing written submissions, Respondent must file the original document
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`electronically on or before the deadlines stated above and submit eight (8) true paper copies to
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`the Office of the Secretary by noon the next day pursuant to subsection 210.4(f) of the
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`Commission's Rules of Practice and Procedure (19 C.F.R. § 210.4(0). Submissions should refer
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`to the investigation number ("Inv. No. 337-TA-1125") in a prominent place on the cover pages
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`and/or the first page. (See Handbook for Electronic Filing Procedures,
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`https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
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`regarding filing should contact the Secretary (202-205-2000). If Respondent desires to submit a
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`document to the Commission in confidence, it must file the original and a public version of the
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`original with the Office of the Secretary and must serve a copy of the confidential version on
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`Complainant's counsel.'
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`Any failure to make the required report or the filing of any false or inaccurate report shall
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`constitute a violation of this Order, and the submission of a false or inaccurate report may be
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`referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. § 1001.
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`VI. Record-Keeping and Inspection
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`(A) For the purpose of securing compliance with this Order, Respondent shall retain
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`any and all records relating to the sale, offer for sale, marketing, or distribution in
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`Complainant must file a letter with the Secretary identifying the attorney to receive reports and
`bond information associated with this order. The designated attorney must be on the protective
`order entered in the investigation.
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`the United States of covered products, made and received in the usual and
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`ordinary course of business, whether in detail or in summary form, for a period of
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`three (3) years from the close of the fiscal year to which they pertain.
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`(B) For the purposes of determining or securing compliance with this Order and for
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`no other purpose, subject to any privilege recognized by the federal courts of the
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`United States, and upon reasonable written notice by the Commission or its staff,
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`duly authorized representatives of the Commission shall be permitted access and
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`the right to inspect and copy, in Respondent's principal offices during office
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`hours, and in the presence of counsel or other representatives if Respondent so
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`chooses, all books, ledgers, accounts, correspondence, memoranda, and other
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`records and documents, in detail and in summary form, that must be retained
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`under subparagraph VI(A) of this Order.
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`VII. Service of Cease and Desist Order
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`Respondent is ordered and directed to:
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`(A) Serve, within fifteen (15) days after the effective date of this Order, a copy of this
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`Order upon each of its respective officers, directors, managing agents, agents, and
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`employees who have any responsibility for the importation, marketing,
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`distribution, or sale of imported covered products in the United States;
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`(B) Serve, within fifteen (15) days after the succession of any persons referred to in
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`subparagraph VII(A) of this order, a copy of the Order upon each successor; and
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`(C) Maintain such records as will show the name, title, and address of each person
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`upon whom the Order has been served, as described in subparagraphs VII(A) and
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`VII(B) of this Order, together with the date on which service was made.
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`The obligations set forth in subparagraphs VII(B) and VII(C) shall remain in effect until
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`the expiration dates of the Asserted Patents.
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`VIII.
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`Confidentiality
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`Any request for confidential treatment of information obtained by the Commission
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`pursuant to Section V or VI of this Order should be made in accordance with section 201.6 of the
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`Commission's Rules of Practice and Procedure (19 C.F.R. § 201.6). For all reports for which
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`confidential treatment is sought, Respondent must provide a public version of such report with
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`confidential information redacted.
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`IX. Enforcement
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`Violation of this Order may result in any of the actions specified in section 210.75 of the
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`Commission's Rules of Practice and Procedure (19 C.F.R. § 210.75), including an action for
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`civil penalties under subsection 337(f) of the Tariff Act of 1930 (19 U.S.C. § 1337(0), as well as
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`any other action that the Commission deems appropriate. In determining whether Respondent is
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`in violation of this Order, the Commission may infer facts adverse to Respondent if it fails to
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`provide adequate or timely information.
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`X. Modification
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`The Commission may amend this Order on its own motion or in accordance with the
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`procedure described in section 210.76 of the Commission's Rules of Practice and Procedure (19
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`C.F.R. § 210.76).
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`XI. Bonding
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`The conduct prohibited by Section III of this Order may be continued during the sixty
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`(60) day period in which this Order is under review by the United States Trade Representative,
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`as delegated by the President (70 Fed. Reg. 43,251 (Jul. 21, 2005)), subject to Respondent
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`posting of a bond in the amount of one hundred (100) percent of the entered value of the covered
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`products. This bond provision does not apply to conduct that is otherwise permitted by Section
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`IV of this Order. Covered products imported on or after the date of issuance of this Order are
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`subject to the entry bond set forth in the exclusion order issued by the Commission, and are not
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`subject to this bond provision.
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`The bond is to be posted in accordance with the procedures established by the
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`Commission for the posting of bonds by complainant in connection with the issuance of
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`temporary exclusion orders. (See 19 C.F.R. § 210.68). The bond and any accompanying
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`documentation are to be provided to and approved by the Commission prior to the
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`commencement of conduct that is otherwise prohibited by Section III of this Order. Upon the
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`Secretary's acceptance of the bond, (a) the Secretary will serve an acceptance letter on all
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`parties, and (b) Respondent must serve a copy of the bond and any accompanying documentation
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`on Complainant's counse1.2
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`The bond is to be forfeited in the event that the United States Trade Representative
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`approves this Order (or does not disapprove it within the review period), unless (i) the U.S. Court
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`of Appeals for the Federal Circuit, in a final judgment, reverses any Commission final
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`determination and order as to Respondent on appeal, or (ii) Respondent exports or destroys the
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`products subject to this bond and provides certification to that effect that is satisfactory to