UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`Before the Honorable Dee Lord
`Administrative Law Judge
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`Inv. No. 337-TA-1166
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`))))))))
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`IN THE MATTER OF:
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`CERTAIN FOODSERVICE EQUIPMENT
`AND COMPONENTS THEREOF
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`COMPLAINANTS’ OPPOSITION TO OUII’S MOTION FOR SUMMARY
`DETERMINATION OF NO DOMESTIC INDUSTRY
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`Opposition to OUII’s Motion for Summary Determination
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`Investigation No. 337-TA-1166
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`PUBLIC VERSION
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`I.
`II.
`III.
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`IV.
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`TABLE OF CONTENTS
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`2.
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`3.
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`4.
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`INTRODUCTION .............................................................................................................1
`BACKGROUND ...............................................................................................................5
`ARGUMENT ...................................................................................................................11
`A.
`Applicable Legal Standards .................................................................................11
`B.
`OUII’s Motion Should Be Denied Because Its Restrictive
`Reading of Section 337(a)(1)(A) Is Not Supportable. .........................................13
`1.
`There Is No Quantitative Threshold for “Industry” In the
`Language of Section 337(a)(1)(A). ..........................................................14
`Section 337(a)(1)(A) Does Not Require a Complainant
`To Distinguish Each of Its Activities From Importation. ........................16
`There Is No Legal Basis to Categorically Exclude
`Customer-Facing Domestic Industry Activities.......................................19
`Section 337(a)(1)(A) Does Not Require Allocation of
`Investments Into the Statutory Categories of Section
`337(a)(3). .................................................................................................20
`OUII’s Motion Should Be Denied Because It Relies on
`Disputes of Material Fact and Misstates the Factual Record. ..............................21
`1.
`Complainants Developed a Robust Discovery Record
`Concerning the Nature and Significance of the Domestic
`Industry Activities. ...................................................................................22
`Complainants Have Properly Allocated Labor Among
`Different Domestic Industry Activities. ...................................................29
`CONCLUSION ................................................................................................................31
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`C.
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`2.
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Amgen, Inc. v. Int’l Trade Comm’n,
`565 F.3d 846 (Fed. Cir. 2009)..................................................................................................10
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`Certain Activity Tracking Devices, Sys., & Components Thereof,
`Inv. No. 337-TA-963 ...............................................................................................................14
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`Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing or
`Relating to Same and Certain Products Containing Same,
`Inv. No. 337-TA-655, Initial Determination, 2009 WL 4261206 (Oct. 16,
`2009) ............................................................................................................................11, 12, 18
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`Certain Crawler Cranes and Components Thereof,
`Inv. No. 337-TA-887, Initial Determination (Order No. 17), 2014 WL 644479
`(non-reviewed) (Feb. 12, 2014) ...............................................................................................14
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`Certain Cube Puzzles,
`Inv. No. 337-TA-112, USITC Pub. 1334, Comm’n Op. at 27 (Jan. 1983) ........................12, 27
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`Certain DC-DC Controllers and Products Containing Same,
`Inv. No. 337-TA-698, Order No. 39, 2010 WL 4780037 (July 13, 2010)...............................14
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`Certain Electric Power Tools, Battery Cartridges, and Battery Charges,
`Inv. No. 337-TA-284 ...............................................................................................................17
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`Certain Floppy Disk Drives and Components Thereof,
`Inv. No. 337-TA-203, Initial Determination, 1985 WL 303605 .......................................11, 12
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`Certain Footwear Prods.,
`Inv. No. 337-TA-936, USITC Pub. No. 4907, 2019 WL 4010937 (June 1,
`2019) ........................................................................................................................................12
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`Certain Hand Dryers and Housing for Hand Dryers,
`Inv. No. 337-TA-1015, Comm’n Op. (Oct. 30, 2017) (“Hand Dryers”) .................................11
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`Certain in-Line Roller Skates,
`USITC Inv. No. 337-TA-348 (July 30, 1993) .........................................................................14
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`Certain Ink Cartridges and Components Thereof,
`Inv. No. 337-TA-946, Order No. 12, 2015 WL 8641224 (Oct. 28, 2015) ..............................28
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`Certain Lens-Fitted Film Packages,
`Inv. No. 337-TA-406, Order No. 7 (July 10, 1998) .................................................................11
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`Certain Male Prophylactic Devices,
`USITC Inv. No. 337-TA-546 (May 2008) ...............................................................................14
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`Certain Mobile Device Holders and Components Thereof,
`Inv. No. 337-TA-1028, Comm’n Op., 2018 WL 4042764 (Mar. 22, 2018) ......................21, 28
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`Certain Optoelectronic Devices,
`Inv. No. 337-TA-860, Comm’n Op. (May 9, 2014) ................................................................13
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`Certain Printing & Imaging Devices & Components Thereof,
`Inv. No. 337-TA-690, Order No. 24: (Apr. 21, 2010) .......................................................19, 28
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`Certain Prod. with Gremlins Character Depictions,
`USITC Inv. No. 337-TA-201 (Mar. 1, 1986) ..........................................................................15
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`Certain Protective Cases and Components Thereof,
`Inv. No. 337-TA-780, 2012 WL 2867980 .........................................................................19, 28
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`Certain Road Milling Machines,
`Inv. No. 337-TA-1067, Final Initial Determination, 2018 WL 6011830 ................................12
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`In the Matter of Certain Reclosable Plastic Bags & Tubing,
`USITC Inv. No. 337-TA-266 (Aug. 31, 1987) ........................................................................14
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`Laerdal Med. Corp. v. Int’l Trade Comm’n,
`910 F.3d 1207 (Fed. Cir. 2018)..................................................................................................7
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`Lelo v. Int’l Trade Comm’n,
`786 F.3d 879 (Fed. Cir. 2015)..................................................................................................13
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`Schaper v. Int’l Trade Comm’n
`717 F.2d 1368(Fed. Cir. 1983)...........................................................................................17, 18
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`Tianrui Group Company Ltd. et al. v. Int’l Trade Comm’n,
`661 F.3d 1322 (Fed. Cir. 2014)...........................................................................................3, 18
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`Statutes and Regulations
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`19 C.F.R. § 210.8(b) ......................................................................................................................10
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`19 U.S.C. § 1337(a)(1)(A)(i) .........................................................................................................11
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`Other Authorities
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`Federal Rule of Civil Procedure 56 ...............................................................................................10
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`I.
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`INTRODUCTION
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`The motion for summary determination filed by the OUII—a motion that was brought
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`without any advance notice from OUII—is fatally flawed and should be denied for numerous
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`reasons—legal, factual, and procedural. First, OUII’s motion is incorrect as a matter of law
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`because it seeks to require Section 337(a)(1)(A) complainants to make the same quantitative
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`showings required in Section 337(a)(3) cases despite differing statutory language, and because
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`it seeks to create bright-line rules governing criteria for qualifying as “an industry in the United
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`States” in Section 337(a)(1)(A) where no bright line rules have been (or should be) made. For
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`example, OUII seeks to create a rule that complainants must distinguish each of their
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`investments from mere importation. Second, and more basically, OUII’s motion is based on
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`disputed material facts including value-added and allocation of investments to domestic
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`industry many of which are based on OUII’s own mischaracterizations, and it asks the
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`Administrative Law Judge to draw inferences in favor of OUII and against the non-moving
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`party. In this respect, OUII’s motion is contrary to Commission Rule 210.18 and should be
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`denied on that basis alone. Third, OUII’s motion demonstrates a fundamental misunderstanding
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`of the industry at issue here and it ignores evidence demonstrating the nature and significance of
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`domestic investments (e.g., value added) that can satisfy any of the metrics offered by OUII.
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`*
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`*
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`OUII’s motion frames the issue incorrectly as whether Complainants can satisfy some
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`quantitative measure of investment not set forth in Section 337(a)(1)(A). See, e.g., OUII Mot. at
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`9 (“Complainants cannot show the requisite nature or significance of its purported domestic
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`industry investments which is presented in the aggregate.”). As a legal matter, however, this is a
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`case about the injury suffered by Illinois Tool Works, Inc. (“ITW”) of Glenview, Illinois and its
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`operations throughout the United States, Admiral Craft Equipment Corp. (“Adcraft”) of
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`Westbury, New York, and Entrée LLC (“Entree”) of El Paso, Texas (collectively, “the DI
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`Participants”) as a direct result of Respondents’ contemptible acts, not whether investments
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`made meet some quantitative threshold set forth in Commission cases involving patents under
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`Section 337(a)(3). The relevant question is literally—under the language of Section
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`337(a)(1)(A): have Respondents’ unfair acts in importation “substantially injure[d] an industry
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`in the United States”? The evidence developed in discovery answers this question with a
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`resounding “yes” regardless of how domestic industry is measured.
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`The discovery record demonstrates that, immediately prior to and following ITW’s
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`acquisition of Vesta (Guangzhou) Catering Equipment (“Vesta”) in 2013, Respondents—
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`OUII’s effort to frame the applicable law as turning on whether Complainants have
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`sufficiently distinguished their activities—both in quality and quantity—from those of an
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`1 Complainants motion to compel discovery (Motion Docket No. 1166-006), which is pending,
`addresses these issues in detail.
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`importer misapprehends both Commission case law and the plain language of the statute. In
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`fact, OUII glosses over the clear language of the applicable provision of Section 337 (i.e.,
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`(a)(1)(A)), which focuses on whether unfair imports “substantially injure an industry in United
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`States” in favor of demanding that Complainants satisfy the quantitative thresholds that may be
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`imposed in Section 337(a)(3) cases governed by the language “significant” or “substantial.”
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`OUII argues that Complainants’ case fails because: (1) they cannot establish they are not mere
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`importers; (2) they cannot demonstrate value added under the specific methodology advanced
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`by OUII; and (3) their quantification of domestic industry includes sales and marketing
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`activities. But, each of these arguments requires the application of bright-line rules that have no
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`basis in the statutory language or Commission case law. Indeed, the Federal Circuit has rejected
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`similar attempts to impose non-textual requirements on “an industry” under Section
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`337(a)(1)(A).2
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`OUII’s motion demonstrates a fundamental misunderstanding of the industry at issue
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`here and it ignores relevant factual context for the extensive activities engaged in by the DI
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`Participants. As a factual matter, the discovery record demonstrates the existence of “an
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`industry” that is significant—both qualitatively and quantitatively—characterized by a market
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`where commercial scale product manufacture is only one of several critical pieces necessary to
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`succeed and prosper. When it was acquired by ITW in 2013, Vesta had
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`. Since at least that time, the DI Participants have been expending substantial resources
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`(including time, engineering, capital and know-how) in the form of millions of dollars of
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`2 Tianrui Group Company Ltd. et al. v. Int’l Trade Comm’n, 661 F.3d 1322, 1335 – 37 (Fed. Cir.
`2014) (rejecting the argument that the statutory language of Section 337(a)(1)(A) requires “the
`domestic industry [to] practice the misappropriated trade secret in order for the Commission to
`be authorized to grant relief.”).
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`product development R&D, manufacturing process expertise, customer needs intelligence, and
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`after-market service expertise and infrastructure to improve the quality of Vesta’s products to
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`the level necessary to compete in the United States market using a continuous and constant
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`feedback loop between customers and Vesta.3
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`As detailed below, the DI Participants engage in design, development, prototyping,
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`testing, certification, engineering, manufacturing, quality control, warranty, customer service,
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`and repair product based on customer needs and feedback, i.e., customer-backed innovation. Far
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`from being a “mere importer” as OUII’s motion suggests, the DI Participants’ sustained
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`domestic efforts and investments have intensified and have proven instrumental in the creation
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`and expansion of the economy segment of the foodservice equipment market in the U.S., in
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`turn, creating American jobs.
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`The DI Participants have produced substantial discovery concerning the “nature and
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`significance” of their domestic production activities including, for example, two witnesses from
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`Vulcan (one in Charlotte and one in Baltimore), the Executive Vice President of the ITW Food
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`Equipment Group4 (based in Chicago), Adcraft’s corporate representative in New York, and
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`Entrée’s corporate representative in Charlotte. In addition, Complainants have produced
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`thousands of pages of sensitive financial data and an economic expert who has quantified the
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`domestic industry and opined favorably on the question of substantial injury and value added in
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`the United States by the DI Participants to the domestic industry products (“DI Products”).5
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`3
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`4 The Administrative Law Judge ordered Complainants to produce Lei Schlitz for deposition.
`EDIS Doc. No. 697781, Order No. 10. Her deposition was completed on January 30, 2020.
`5 The DI Products include convection ovens, fryers, griddles, charbroilers, ranges,
`salamanders/cheese melters, stockpots, and combination ranges/griddles. This includes, among
`other items, Entrée CCO, Adcraft BDCOG-54/NG, Adcraft COH-2670W, Adcraft BDGR-
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`OUII concedes that there is no one-size-fits-all accounting formula for assessing the nature and
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`significance of Complainants’ domestic operations. Yet, its arguments effectively seek to
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`shoehorn the facts of this case into isolated thirty-year old Commission commentary made
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`before the statute was substantially amended in 1988 in order to attack the domestic industry
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`measurement methodologies Complainants offer in this case—methodologies that will prove
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`reasonable given the facts and record-keeping practices of the DI Participants—should be
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`rejected.
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`At its core, OUII’s motion asks the Administrative Law Judge to do grave injustice to the
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`purpose of Section 337 in protecting the investments made by the DI Participants by setting
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`aside the overarching question of whether Respondents’ unfair imports have substantially
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`injured the industry here and, instead, decide the contributions made by the DI Participants are
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`not worthy of Section 337’s protections based on an erroneous view of the law and the
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`misguided perception that the DI Participants are “mere importers.”
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`Accordingly, OUII’s motion should be denied.
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`II.
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`BACKGROUND
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`Neither Respondents nor OUII moved for summary determination on the ultimate
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`question of whether there is substantial injury under Section 337(a)(1)(A). Rather, on December
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`20, 2019, Respondents moved for summary determination of no domestic industry the grounds
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`that, in their view, Complainants do not engage in “production” in the United States. See EDIS
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`Doc. No. 697882, Memorandum of Points and Authorities In Support of Respondents’ Mot. for
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`3624G, Adcraft-BDGR-24, Vulcan SX-36, Entrée R6, Adcraft-BDGR-36, Adcraft BDCTH-
`12/24/36, Vulcan VCRH12, Adcraft BDCTSP-1, Vulcan VSP100, Vulcan WSPR1, Entrée SP-
`1/SP-2, Adcraft BDGF-90/120/150, Vulcan 1VEG35M-1, Vulcan LG300, Adcraft DF-6L,
`Vulcan WICM24, Adcraft GRID-16/24/30, Adcraft BDECTG-24, Adcraft BDECTG-
`16/24/36/48, Entrée BR-48, Adcraft SG-811E, Adcraft SG-813.
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`Summary Determination of No Domestic Industry at 1. Respondents’ motion raised a single
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`narrow issue—whether Complainants can establish a domestic industry without commercial
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`manufacturing in the United States.
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`The deadline for motions for summary determination passed on January 7, 2020. On
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`January 10, 2020, Complainants opposed that motion on both legal and factual grounds.
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`See EDIS Doc. No. 698913, Complainants’ Opposition to Respondents’ Motion for Summary
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`Determination of No Domestic Industry (“Opposition”). On the same day, OUII filed a response
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`noting that “to the extent Respondents’ motion seeks a determination that requires full
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`production in the United States for a domestic industry under Section 337(a)(1)(A), the Staff
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`does not support Respondents’ motion.” 6 See EDIS Doc. No. 698889, Commission Investigative
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`Staff’s Response to Respondents’ Motion for Summary Determination of No Domestic Industry
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`(“Staff’s Response”). Much to Complainants’ surprise and without any prior notice, however,
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`OUII’s “response” went on for more than twenty pages (attaching no less than 500 pages of
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`exhibits) arguing that no domestic industry exists based on disputed material facts underlying
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`Complainants’ domestic industry contentions—the vast majority of which are not at issue in
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`Respondents’ motion.7 On January 15, 2020, OUII moved for leave to have its “response”
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`considered as its own motion for summary determination after Complainants objected to OUII’s
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`“response” and threatened to move to strike it as being its own summary determination motion
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`filed after the deadline in the Procedural Schedule. See EDIS Doc. No. 699318, Commission
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`Investigative Staff’s Unopposed Motion for Leave. The Administrative Law Judge granted this
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`motion on January 21, 2020. See EDIS Doc No. 699772, Order No. 13.
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`6 See generally Commission Investigative Staff’s Response to Respondents’ Motion for
`Summary Determination of No Domestic Industry (“OUII Mot.”)
`7 Presumably, Respondents understood that raising these disputes would prove fatal to their
`efforts to establish a basis for summary determination.
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`Complainants filed the Complaint in this Investigation on May 30, 2019. That Complaint
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`included supporting declarations regarding domestic industry and injury from Vulcan—a
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`division of ITW Food Equipment Group, LLC (“FEG”), Adcraft, and Entrée. See EDIS Doc. No.
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`677455, Compl. Confidential Exh. 1 (Powers Decl.), Exh. 7 (Mohamed Decl.), and Exh. 8
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`(Suchecki Decl.). These declarations set forth exemplary investments made in the United States
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`regarding domestic activities that relate to the production of the domestic industry products. The
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`domestic industry products include ranges, fryers, convection ovens, charbroilers, griddles,
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`salamanders, cheesemelters, stock-pot ranges, and countertop fryers manufactured commercially
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`by Vesta. Vulcan, Adcraft, and Entrée each have their own models of foodservice equipment that
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`they partner with Vesta to produce.
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`The declarations submitted with the Complaint explained that Vulcan, Adcraft, and
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`Entrée are involved in multiple necessary steps in the process of producing the domestic industry
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`products, including the design, development, prototyping, testing, and certifying of the domestic
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`industry products as well as post-production technical activities such as warranty, customer
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`service, and repair of the domestic industry products. The declarations did not allege that the
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`domestic industry products are commercially manufactured in the United States. Respondents
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`filed a request that the Commission deny institution because, in their view, Complainants were
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`involved in mere importation. The Commission rejected that pleading as untimely, and found
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`that Complainants had sufficiently pled a violation of Section 337 and instituted the Investigation
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`in the normal course. See Laerdal Med. Corp. v. Int’l Trade Comm’n, 910 F.3d 1207, 1213–14
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`(Fed. Cir. 2018) (“When a notice of investigation issues, therefore, the Commission must have
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`already ensured that the complaint sufficiently pleaded a statutory violation.”).
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`Discovery in this investigation has demonstrated that Vulcan, Adcraft, and Entrée invest
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`heavily in domestic activities related to the production of the domestic industry products,
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`including design, development, prototyping, testing, certification, engineering, quality control,
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`warranty, customer service, and repair. See Ex. 1, Complainants’ Third Supplemental Responses
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`to Respondents’ First Set of Interrogatories (No. 12) (December 3, 2019); Ex. 2, Expert Report
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`of Christopher Martinez (“Martinez Report’) at 20–22, 27–28. In addition, entities like Hobart
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`LLC (shown above) as well as hundreds of independent service providers invest heavily in
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`service activities for the domestic industry products across the United States.
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`The industry at issue is characterized by close partnerships between “import
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`manufacturers”8 like Adcraft, Entrée, and Vulcan (in certain respects) and the commercial
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`manufacturer Vesta. Although Vesta’s expertise in manufacturing efficiently and inexpensively
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`provides value to the domestic industry products using its proprietary secrets, the import
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`manufacturers also provide significant value to the domestic industry products both from a
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`quantitative and qualitative standpoint. See, e.g., Ex. 2, Martinez Rep., Figure 7.
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` See Ex. 3, Schlitz Tr. at 99:1-100:12.
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` See Ex. 3, Schlitz Tr. at 27:2-9, 34:13-35:25, 97:3-17.
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` See Ex. 3, Schlitz Tr. at 39:8-14 (“
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`8 “Import manufacturer” is the term Adcraft uses to describe its role in manufacturing the
`domestic industry products while acknowledging that commercial manufacturing occurs abroad.
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`).
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`The industry has suffered substantial injury and will suffer substantial injury on account
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`of unfair imports from Respondents. This injury already has impacted and will negatively impact
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`ITW, Vesta, Vulcan, Hobart, Adcraft, Entrée, and the hundreds of independent technical service
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`providers. That injury is caused by Respondents’ unfair acts. For example, Vulcan has lost
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` to sales of Respondents’ products that use misappropriated designs
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`and trade secrets. See, e.g., Ex. 4, Forrest Tr. at 108:7-108:25, 110:5-13, 111:22-7, 113:11-14,
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`120:10-121:15. Adcraft, Vesta, Entrée, and ITW’s subsidiary Hobart, among others, have also
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`been injured. See, e.g., Ex. 5, Powers Tr. at 257, 260-267 (Adcraft lost sales and customers); Ex.
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`6, Suchecki Tr. at 188-89 (Entrée lost sales and customers); Ex. 7, Mohamed Tr. at 173:18–174:7
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`(“
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`Schlitz Tr. at 18:8-17 (“
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`”); Ex. 3,
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`.”).
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`Moreover, the discovery record contains evidence that Respondents have sought to take
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`sales from the domestic industry by
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`The excerpt below shows an email from Respondent AcePlus to Adcraft which was attached to
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`the Complaint:
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`Ex. 8, Zeng Tr., Exh. 20.
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`III. ARGUMENT
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`OUII’s motion should be denied for several reasons. First, OUII’s motion is wrong as a
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`legal matter because it answers the wrong question, namely, whether investments in the
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`domestic industry are “significant,” rather than the question actually presented by Section
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`337(a)(1)(A): did Respondents’ unfair acts in importation “substantially injure an industry in
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`the United States”? OUII’s motion also attempts to artificially limit the broad language of
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`Section 337(a)(1)(A)—an “industry” without any basis in the statutory text or Commission
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`precedent. Second, and more basically, OUII’s motion is based on disputed material facts
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`including value-added and allocation of investments to domestic industry many of which OUII
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`repeatedly mischaracterizes. Third, OUII’s motion is incorrect on its factual substance.
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`Complainants have demonstrated and will demonstrate at trial, using a variety of metrics
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`including value-added, that the activities of the DI Participants are significant—both
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`qualitatively and quantitatively.
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`Applicable Legal Standards
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`A.
`A movant is entitled to summary determination only where it can “show that there is no
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`genuine issue as to any material fact.” 19 C.F.R. § 210.8(b). This standard mirrors the standard
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`for granting summary determination under Federal Rule of Civil Procedure 56. See Amgen, Inc.
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`v. Int’l Trade Comm’n, 565 F.3d 846, 849 (Fed. Cir. 2009).
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`The Administrative Law Judge “should not grant summary [determination] unless the
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`entire record shows a right to judgment with such clarity as to leave no room for controversy and
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`establishes affirmatively that the [non-moving party] cannot prevail under any circumstances.”
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`In deciding whether to grant summary determination, the Administrative Law Judge must draw
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`all reasonable inferences against the moving party. As a corollary, “[a]ny doubt as to the
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`existence of a genuine issue of material fact must be resolved in favor of the nonmoving party.”
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`Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, Order No. 7 at 2 (July 10, 1998).
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`“[S]ummary determination is inappropriate where the record contains facts which, if explored
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`and developed, might lead the Commission to accept the position of the [non-moving party.]” Id.
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`Complainants proceeding under Section 337(a)(1)(A) must show that Respondents’
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`unfair acts have the threat or effect of substantially injuring “an industry” in the United States. 19
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`U.S.C. § 1337(a)(1)(A)(i). In assessing the existence of a domestic industry in an (a)(1)(A) unfair
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`practices case, the Commission may consider broader categories of investments and economic
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`activities than those categories set forth for statutory IP cases in Section 337(a)(3) where
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`Congress defined industry to include (A) significant investment in plant and equipment; (B)
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`significant employment of labor or capital; or (C) substantial investment in its exploitation,
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`including engineering, research and development, or licensing. See, e.g., Certain Cast Steel
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`Railway Wheels, Certain Processes For Manufacturing or Relating to Same and Certain
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`Products Containing Same, Inv. No. 337-TA-655, Initial Determination, 2009 WL 4261206, at
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`*32 (Oct. 16, 2009) (“Railway Wheels”) (the “specific domestic industry showing [of Section
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`337(a)(3)] need not be made in an investigation instituted under section (a)(1)(A)”); Certain
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`Hand Dryers and Housing for Hand Dryers, Inv. No. 337-TA-1015, Comm’n Op. at 4 (Oct. 30,
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`2017) (“Hand Dryers”) (“there is no textual basis for concluding that those definitions delineate
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`what constitutes ‘an industry in the United States’ for purposes of section 337(a)(1)(A)(i).”)
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`Certain Floppy Disk Drives and Components Thereof, Inv. No. 337-TA-203, Initial
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`Determination, 1985 WL 303605, at *22 (“The Commission customarily defines the domestic
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`industry as the domestic operation of the intellectual property owner and its licensees devoted to
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`the exploitation of the intellectual property…not limited to manufacturing per se but
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`encompasses distribution, research and development, and sales.”).
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`“The Commission does not adhere to any rigid formula in determining the scope of the
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`domestic industry as it is not precisely defined in the statute.” In the Matter of Certain Floppy
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`Disk Drives & Components Thereof, Inv. No. 337-TA-203, Initial Determination, 1985 WL
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`303605 (Apr. 26, 1985). Rather “[t]he Commission has a long history … of looking to ‘the
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`realities of the marketplace,’ when determining the domestic industry in a trade secrets
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`investigation or other investigation based on unfair acts other than traditional forms of
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`intellectual property (such as patents).” Railway Wheels, Inv. No. 337-TA-655, at *66. Within
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`the context of the marketplace, the Commission will assess the “nature and significance” of the
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`activities in the United States. Certain Cube Puzzles, Inv. No. 337-TA-112, USITC Pub. 1334,
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`Comm’n Op. at 27 (Jan. 1983). However, “[t]here is no minimum monetary expenditure that a
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`complainant must demonstrate,” and “[t]here is no need to define or quantify an industry in
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`absolute mathematical terms.” Certain Road Milling Machines, Inv. No. 337-TA-1067, Final
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`Initial Determination, 2018 WL 6011830, at 28.
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`B.
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`OUII’s Motion Should Be Denied Because Its Restrictive Reading of Section
`337(a)(1)(A) Is Not Supportable.
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`OUII argues that Complainants’ case fails because: (1) they cannot establish they are not
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`mere importers; (2) they cannot demonstrate value added under the specific methodology
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`advanced by OUII; and (3) their quantification of domestic industry includes sales and marketing
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`activities. But, each of these arguments requires the application of bright-line rules that have no
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`basis in the statutory language or Commission case law. Indeed, Commission case law is not as
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`clear as OUII suggests. In fact, the only point the Commission has been clear about is that there
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`are no bright-line rules in domestic industry because each market, product, and industry is
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`different. See, e.g., Certain Optoelectronic Devices, Inv. No. 337-TA-860, Comm’n Op. at 18-19
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`(May 9, 2014) (“whether investment activities are significant or substantial ‘is not evaluated
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`according to any rigid mathematical formulation,’ but rather, ‘entails an examination of the facts
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`in each investigation, the article of commerce, and the realities of the marketplace.’”).
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`1.
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`There Is No Quantitative Threshold for “Industry” In the Language
`of Section 337(a)(1)(A).
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`OUII’s motion argues that “Complainants cannot show the requisite nature or
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`significance of its purported domestic indust