CHAIRMAN
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`
`
`Washington, D.C. 20436
`
`
`
`October 26, 2023
`
`The President
`The White House
`
`Washington, D.C. 20500
`
`Dear Mr. President:
`
`In accordance with subsection G) of Section 337 of the Tariff Act of 1930, as amended
`
`
`
`
`
`
`(19 U.S.C. § 1337) ("Section 337"), and the July 21, 2005, Memorandum for the United States
`
`
`
`
`Trade Representative (70 Fed. Reg. 43251), I am transmitting to you and the United States Trade
`
`
`
`
`
`Representative copies of the Commission's limited exclusion order and a cease and desist order,
`
`
`
`
`as described below, and the record upon which the Commission based its determination.
`
`On October 26, 2023, the United States International Trade Commission issued a limited
`
`
`
`
`
`
`
`
`
`
`exclusion order and a cease-and-desist order pursuant to Section 337 in USITC Investigation No.
`
`
`
`
`
`
`337-TA-1276, Certain Light-Based Physiological Measurement Devices and Components
`
`
`
`
`
`
`
`Thereof The limited exclusion order prohibits respondent Apple, Inc. of Cupertino, California
`
`
`
`
`
`
`from importing into the United States light-based physiological measurement devices and
`
`
`
`
`
`components thereof that infringe one or more of claims 22 and 28 of U.S. Patent No. 10,912,502
`
`
`
`
`
`and claims 12, 24, and 30 of U.S. Patent No. 10,945,648 ("covered products"). The cease-and­
`
`
`
`
`
`
`
`
`desist order prohibits respondent Apple, Inc. from further importing, selling, and distributing the
`
`
`covered products in the United States.
`
`
`
`The Commission concluded that the statutory public interest factors in subsections ( d)( l )
`
`
`
`
`
`
`
`
`
`
`
`
`
` SDB
`Confidential Removed
`
`

`

`The President
`October 26, 2023
`page 2
`
`and (f)(1) of Section 337 do not preclude the issuance ofthis remedy.
`
`Sincerely,
`
`“12/5
`
`David S. Johanson
`Chairman
`
`Enclosures
`
`

`

`CHAIRMAN
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C. 20436
`
`October 26, 2023
`
`The Honorable Janet L. Yellen
`Secretary of the Treasury
`Washington, D.C. 20220
`
`Dear Secretary Yellen:
`
`In accordance with subsection (d) of Section 337 of the Tariff Act of 1930, as amended
`(19 U.S.C. § 1337) (“Section 337”), I am transmitting to you a copy of the Commission’s limited
`exclusion order, as described below, and the record upon which the Commission basedits
`determination.
`
`On October 26, 2023, the United States International Trade Commission issued a limited
`exclusion order and cease and desist orders pursuant to Section 337 in USITC Investigation No.
`337-TA-1276, Certain Light-Based Physiological Measurement Devices and Components
`Thereof. The limited exclusion order prohibits respondent Apple, Inc. of Cupertino, California
`from importing into the United States light-based physiological measurement devices and
`components thereofthat infringe one or more of claims 22 and 28 of U.S. Patent No. 10,912,502
`and claims 12, 24, and 30 of U.S. Patent No. 10,945,648 (“covered products’).
`
`The Commission concludedthat the statutory public interest factors in subsections (d)(1)
`and (f)(1) of Section 337 do not preclude the issuance ofthis remedy.
`
`Sincerely,
`
`Leys
`
`David S. Johanson
`Chairman
`
`Enclosures
`
`

`

`Secretary Yellen
`October 26, 2023
`page 2
`
`cc:
`
`Dax Terrill, Chief
`Exclusion Order Enforcement
`Office of International Trade
`Regulation and Rulings
`U.S. Customs and Border Protection
`90 K Street, N.E.
`Washington, D.C. 20229-1177
`
`

`

`CHAIRMAN
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C. 20436
`
`October 26, 2023
`
`The Honorable Katherine Tai
`United States Trade Representative
`Washington, D.C. 20508
`
`Dear Ambassador Tai:
`
`In accordance with subsection (j) of Section 337 of the Tariff Act of 1930, as amended
`(19 U.S.C. § 1337) (“Section 337”), and the July 21, 2005, Memorandum for the United States
`Trade Representative (70 Fed. Reg. 43251), I am transmitting to you and the President copies of
`the Commission’s limited exclusion order and cease and desist orders, as described below, and
`the record upon which the Commission based its determination.
`
`On October 26, 2023, the United States International Trade Commission issued a limited
`exclusion order and a cease-and-desist order pursuant to Section 337 in USITC Investigation No.
`337-TA-1276, Certain Light-Based Physiological Measurement Devices and Components
`—
`Thereof. The limited exclusion order prohibits respondent Apple, Inc. of Cupertino, California
`from importing into the United States light-based physiological measurement devices and
`components thereofthat infringe one or more of claims 22 and 28 of U.S. Patent No. 10,912,502
`and claims 12, 24, and 30 of U.S. Patent No. 10,945,648 (“covered products”). The cease-and-
`desist order prohibits respondent Apple, Inc. from further importing, selling, and distributing the
`covered products in the United States.
`
`The Commission concludedthat the statutory public interest factors in subsections (d)(1)
`
`

`

`Ambassador Tai
`October 26, 2023
`page 2
`
`and (f)(1) of Section 337 do not preclude the issuance of this remedy.
`
`Sincerely,
`
`“Leys
`
`David S. Johanson
`Chairman
`
`Enclosures
`
`cc:
`
`Shannon M.Nestor, Esq.
`Office of the General Counsel
`Office of the United States Trade Representative
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`
`
`
`
`
`
`
`
`
`
`
`In the Matter of
`
`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
`
`
`
`
`
`Investigation No. 337-TA-1276
`
`
`
`
`
`
`Notice.
`
`NOTICE OF THE COMMISSION’S FINAL DETERMINATION FINDING A
`VIOLATION OF SECTION 337; ISSUANCE OF A LIMITED EXCLUSION ORDER
`AND A CEASE AND DESIST ORDER; TERMINATION OF THE INVESTIGATION
`
`AGENCY: U.S. International Trade Commission.
`
`ACTION:
`
`SUMMARY: Notice is hereby given that the U.S. International Trade Commission has found a
`violation of section 337 in the above-captioned investigation. The Commission has determined
`to issue: (1) a limited exclusion order (“LEO”) prohibiting the unlicensed entry of infringing
`wearable electronic devices with light-based pulse oximetry functionality and components
`thereof covered by certain claims of U.S. Patent Nos. 10,912,502 or 10,945,648 that are
`manufactured by or on behalf of, or imported by or on behalf of, respondent Apple, Inc.
`(“Apple”) or any of its affiliated companies, parents, subsidiaries, or other related business
`entities, or its successors or assigns; and (2) a cease and desist order (“CDO”) directed against
`Apple and any of its affiliated companies, parents, subsidiaries, or other related business entities,
`or its successors or assigns. This investigation is terminated.
`
`FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the General
`Counsel, U.S. International Trade Commission, 500 E Street S.W., Washington, D.C. 20436,
`telephone (202) 205-3427. Copies of non-confidential documents filed in connection with this
`investigation may be viewed on the Commission’s electronic docket (EDIS) at
`https://edis.usitc.gov. For help accessing EDIS, please email EDIS3Help@usitc.gov. General
`information concerning the Commission may also be obtained by accessing its Internet server at
`https://www.usitc.gov. Hearing-impaired persons are advised that information on this matter can
`be obtained by contacting the Commission’s TDD terminal on (202) 205-1810.
`
`SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on
`August 18, 2021, based on a complaint filed on behalf of Masimo Corporation and Cercacor
`Laboratories, Inc., both of Irvine, CA (collectively, “Complainants”). 86 FR 46275 (Aug. 18,
`2021). The complaint, as amended, alleged 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 light-based
`physiological measurement devices and components thereof by reason of infringement of certain
`claims of U.S. Patent No. 10,912,501 (“the ’501 patent”); U.S. Patent No. 10,912,502 (“the ’502
`patent”); U.S. Patent No. 10,945,648 (“the ’648 patent”); U.S. Patent No. 10,687,745 (“the ’745
`patent”); and U.S. Patent No. 7,761,127 (“the ’127 patent”). Id. The amended complaint further
`alleged that an industry in the United States exists and/or is in the process of being established as
`required by section 337. Id. The notice of investigation named Apple of Cupertino, California
`as the sole respondent. Id. at 46276. The Office of Unfair Import Investigations is not
`participating in this investigation. Id.
`
`
`Complainants previously withdrew certain asserted claims pursuant to Order No. 25
`(Mar. 23, 2022), unreviewed by Comm’n Notice (Apr. 12, 2022), and Order No. 33 (May 20,
`2022), unreviewed by Comm’n Notice (June 10, 2022). Only claim 12 of the ’501 patent, claims
`22 and 28 of the ’502 patent, claims 12, 24, and 30 of the ’648 patent, claims 9, 18, and 27 of the
`’745 patent, and claim 9 of the ’127 patent remain in the investigation. Claim 18 of the ’745
`patent is still at issue for purposes of the domestic industry only.
`
`
`On January 10, 2023, the presiding administrative law judge (“ALJ”) issued the final
`initial determination (“Final ID”), which found that Apple violated section 337 as to claims 24
`and 30 of the ’648 patent, but not as to claim 12 of the ’501 patent, claims 22 and 28 of the ’502
`patent, claim 12 of the ’648 patent, claims 9 and 27 of the ’745 patent, and claim 9 of the ’127
`patent. See Final ID at 335–36. On January 24, 2023, the ALJ issued a Recommended
`Determination on remedy and bonding (“RD”) should a violation be found in the above-
`captioned investigation. The RD recommended that, if the Commission finds a violation, it
`should issue an LEO directed to certain wearable electronic devices with light-based pulse
`oximetry functionality and components thereof that are imported, sold for importation, and/or
`sold after importation by Apple; and a CDO directed to Apple. RD at 2, 5. The RD additionally
`recommended that the Commission set a zero percent (0%) bond (i.e., no bond) during the sixty-
`day period of Presidential review. Id. at 6. In its notice instituting this investigation, the
`Commission did not instruct the ALJ to make findings and recommendations concerning the
`public interest. See 86 FR at 46275–76.
`
`On January 23, 2023, Complainants and Apple each filed a petition for review. On
`January 31, 2023, Complainants and Apple each filed responses to the other party’s petitions.
`
`On February 23, 2023, the parties filed their public interest statements pursuant to 19
`CFR 210.50(a)(4). The Commission received numerous comments on the public interest from
`non-parties.
`
`On May 15, 2023, after considering the parties’ petitions and responses thereto, the
`Commission determined to review the Final ID in part. See 88 FR 32243, 32243–46 (May 19,
`2023). In particular, the Commission determined to review the following findings of the Final
`ID:
`
`
`
`
`
`
`
`2
`
`

`

`(1) the domestic industry with regard to the ’501 patent, the ’502 patent, the ’648 patent,
`and the ’745 patent;
`
`
`(2) obviousness with regard to the ’501 patent, the ’502 patent, the ’648 patent, and the
`’745 patent;
`
`
`(3) written description with regard to claim 28 of the ’502 patent and claim 12 of the ’648
`patent;
`
`
`(4) claim construction and infringement with regard to the ’745 patent; and
`
`(5) subject matter jurisdiction.
`
`Id. The Commission requested briefing on certain issues under review and on remedy, the public
`interest, and bonding. See id.
`
`On June 5, 2023, the parties filed their written submissions on the issues under review
`and on remedy, public interest, and bonding, and on June 12, 2023, the parties filed their reply
`submissions. The Commission also received numerous comments on the public interest from
`non-parties.
`
`Having reviewed the record in this investigation, including the written submissions of the
`parties, the Commission affirms with modifications the Final ID’s domestic industry findings
`(both economic and technical prong) as to the ’501, ’502, ’648, and ’745 patents. The
`Commission additionally affirms with modifications the Final ID’s conclusion that the asserted
`claims of the ’501 patent are obvious, but the asserted claims of the ’502, ’648, and ’745 patents
`are not obvious. The Commission has determined to reverse the Final ID’s finding that Apple
`proved by clear and convincing evidence that claim 28 of the ’502 patent and claim 12 of the
`’648 patent are invalid for lack of written description. Furthermore, the Commission affirms the
`Final ID’s claim construction related to the recited term “first shape” and the related conclusion
`that the Accused Products do not satisfy elements [1B] and [20B] of the ’745 patent. The
`Commission additionally vacates the Final ID’s finding that the Commission has subject matter
`jurisdiction over the investigation and instead finds that the Commission has statutory authority
`over the investigation. The Commission affirms the remainder of the Final ID that is not
`inconsistent with the Commission’s opinion issued concurrently herewith. As a result, the
`Commission finds that Apple has violated section 337 as to claims 22 and 28 of the ’502 patent
`and claims 12, 24, and 30 of the ’648 patent.
`
`The Commission has determined that the appropriate form of relief is an LEO prohibiting
`(1) the unlicensed entry of infringing wearable electronic devices with light-based pulse
`oximetry functionality and components thereof manufactured by or on behalf of Apple or any of
`its affiliated companies, parents, subsidiaries, or other related business entities, or its successors
`or assigns. The Commission has also determined to issue a CDO against Apple. The
`Commission has determined to include an exemption to the remedial orders for service or repair
`
`
`
`
`3
`
`

`

`or, under warranty terms, replacement of products purchased prior to the end of the period of
`Presidential review.
`
`The Commission has further determined that the public interest factors enumerated in
`subsections (d)(l) and (f)(1) (19 U.S.C. 1337(d)(l), (f)(1)) do not preclude issuance of the above-
`referenced remedial orders. Additionally, the Commission has determined to impose a bond of
`zero (0%) (i.e., no bond) of entered value of the covered products during the period of
`Presidential review (19 U.S.C. 1337(j)). This investigation is terminated.
`
`
`The Commission vote for this determination took place on October 26, 2023.
`
`The authority for the Commission’s determination is contained in section 337 of the
`Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission’s Rules of
`Practice and Procedure (19 CFR Part 210).
`
`
`
`
`
`
`By order of the Commission.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Issued: October 26, 2023
`
`
`
`
`
`
`Lisa R. Barton
`Secretary to the Commission
`
`
`
`
`
`4
`
`

`

`
`
`
`
`
`
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`
`In the Matter of
`
`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
`
`
`
`
`
`
`Investigation No. 337-TA-1276
`
`LIMITED EXCLUSION ORDER
`
`The United States International Trade Commission (“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
`
`by respondent Apple, Inc. of Cupertino, California (“Respondent”) of certain light-based
`
`physiological measurement devices and components thereof (as defined in paragraph 2 below)
`
`that infringe one or more of claims 22 and 28 of U.S. Patent No. 10,912,502 and claims 12, 24,
`
`and 30 of U.S. Patent No. 10,945,648 (“Asserted Patents”).
`
`Having reviewed the record in this investigation, including the written submissions of the
`
`parties, the Commission has made its determinations on the issues of remedy, the public interest,
`
`and bonding. The Commission has determined that the appropriate form of relief is a limited
`
`exclusion order prohibiting the unlicensed entry of infringing light-based physiological
`
`measurement devices and components thereof manufactured by or on behalf of Respondent or
`
`any of its affiliated companies, parents, subsidiaries, agents, or other related business entities, or
`
`its successors or assigns.
`
`The Commission has also determined that the public interest factors enumerated in
`
`19 U.S.C. § 1337(d) do not preclude the issuance of the limited exclusion order, and that the
`
`

`

`bond during the period of Presidential review shall be in the amount of zero percent (0%, i.e., no
`
`bond) of the entered value of the entered value of the articles subject to this Order.
`
`Accordingly, the Commission hereby ORDERS that:
`
`1.
`
`Light-based physiological measurement devices and components thereof that
`
`infringe one or more of claims 22 and 28 of U.S. Patent No. 10,912,502 and claims 12, 24, and
`
`30 of U.S. Patent No. 10,945,648 and are manufactured abroad by, or on behalf of, or imported
`
`by or on behalf of Respondent or any of its affiliated companies, parents, subsidiaries, agents, or
`
`other related business entities, or its successors or assigns, are excluded from entry for
`
`consumption into the United States, entry for consumption from a foreign-trade zone, or
`
`withdrawal from a warehouse for consumption, for the remaining terms of the Asserted Patents,
`
`except under license from, or with the permission of, the patent owner or as provided by law; and
`
`except for parts necessary to service and repair covered products purchased by consumers prior
`
`to the date this Order becomes final within the meaning of 19 U.S.C. § 1337(j)(4), and except for
`
`covered products that are replacements for covered products purchased by consumers prior to the
`
`date this Order becomes final within the meaning of 19 U.S.C. § 1337(j)(4), provided that
`
`replacement is pursuant to a warranty for the replaced article.
`
`2.
`
`The light-based physiological measurement devices and components thereof
`
`subject to this exclusion order (i.e., “covered articles”) are as follows: wearable electronic
`
`devices with light-based pulse oximetry functionality and components thereof.
`
`3.
`
`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 bond in the amount of zero percent (0%,
`
`i.e., no bond) of their entered value, pursuant to subsection (j) of section 337 (19 U.S.C.
`
`
`
`2
`
`

`

`§ 1337(j)) and the Presidential Memorandum for the United States Trade Representative of July
`
`21, 2005 (70 Fed. Reg. 43,251), from the day after this Order is received by the United States
`
`Trade Representative 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 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.
`
`4.
`
`At the discretion of CBP and pursuant to the procedures it establishes, persons
`
`seeking to import articles 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.
`
`5.
`
`In accordance with 19 U.S.C. § 1337(l), 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.
`
`6.
`
`The Commission may modify this Order in accordance with the procedures
`
`described in Rule 210.76 of the Commission’s Rules of Practice and Procedure (19 C.F.R.
`
`§ 210.76).
`
`7.
`
`The Secretary shall serve copies of this Order upon each party of record in this
`
`investigation that has retained counsel or otherwise provided a point of contact for electronic
`
`service and upon CBP.
`
`
`
`3
`
`

`

`8.
`
`Notice of this Order shall be published in the Federal Register.
`
`By order of the Commission.
`
`
`
`
`
`Lisa R. Barton
`Secretary to the Commission
`
`
`
`
`Issued: October 26, 2023
`
`
`
`4
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`
`
`In the Matter of
`
`
`
`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
`
`
`Investigation No. 337-TA-1276
`
`
`CEASE AND DESIST ORDER
`
`
`
`IT IS HEREBY ORDERED THAT RESPONDENT Apple, Inc. of Cupertino,
`
`California cease and desist from conducting any of the following activities in the United States:
`
`importing, selling, offering for sale, 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 certain light-based physiological measurement devices and components thereof
`
`(as defined in Definition (G) below) that infringe one or more of claim 28 of U.S. Patent No.
`
`10,912,502 and claims 12, 24, and 30 of U.S. Patent No. 10,945,648 (“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)
`
`(B)
`
`“Commission” shall mean the United States International Trade Commission.
`
`“Complainant” shall mean Masimo Corporation and Cercacor Laboratories, Inc.,
`
`both of Irvine, California.
`
`(C)
`
`“Respondent” shall mean Apple, Inc. of Cupertino, California.
`
`

`

`
`
`
`(D)
`
`“Person” shall mean an individual, or any non-governmental partnership, firm,
`
`association, corporation, or other legal or business entity other than Respondent or
`
`its majority-owned or controlled subsidiaries, successors, or assigns.
`
`(E)
`
`“United States” shall mean the fifty States, the District of Columbia, and
`
`Puerto Rico.
`
`(F)
`
`The terms “import” and “importation” refer to importation for entry for
`
`consumption under the Customs laws of the United States.
`
`(G)
`
`The term “covered products” shall mean light-based physiological measurement
`
`devices and components thereof that infringe one or more of claims 22 and 28 of
`
`U.S. Patent No. 10,912,502 and claims 12, 24, and 30 of U.S. Patent No.
`
`10,945,648. The light-based physiological measurement devices and components
`
`thereof subject to this order are as follows: wearable electronic devices with
`
`light-based pulse oximetry functionality and components thereof. Covered
`
`products shall not include articles for which a provision of law or license avoids
`
`liability for infringement.
`
`II.
`Applicability
`
`The provisions of this Cease and Desist Order shall apply to Respondent and to any of its
`
`principals, stockholders, officers, directors, employees, agents, distributors, controlled (whether
`
`by stock ownership or otherwise) and majority-owned business entities, successors, and assigns,
`
`and to each of them, insofar as they are engaging in conduct prohibited by section III, infra, for,
`
`with, or otherwise on behalf of, Respondent.
`
`
`
`2
`
`

`

`
`
`
`III.
`Conduct Prohibited
`
`The following conduct of Respondent in the United States is prohibited by this Order.
`
`For the remaining terms of the Asserted Patents, Respondent shall not:
`
`(A)
`
`import or sell for importation into the United States covered products;
`
`(B) market, distribute, sell, offer to sell, or otherwise transfer (except for exportation)
`
`(C)
`
`(D)
`
`(E)
`
`in the United States imported covered products;
`
`advertise imported covered products;
`
`solicit U.S. agents or distributors for imported covered products; or
`
`aid or abet other entities in the importation, sale for importation, sale after
`
`importation, transfer (except for exportation), or distribution of covered products.
`
`IV.
`Conduct Permitted
`
`Notwithstanding any other provision of this Order, specific conduct otherwise prohibited
`
`by the terms of this Order shall be permitted if:
`
`(A)
`
`in a written instrument, the owner of the Asserted Patents licenses or authorizes
`
`such specific conduct;
`
`(B)
`
`such specific conduct is related to the importation or sale of covered products by
`
`or for the United States; or
`
`(C)
`
`such specific conduct is limited to importation, sale, and provision of parts
`
`necessary to repair covered products purchased by consumers prior to the date this
`
`Order becomes final within the meaning of 19 U.S.C. § 1337(j)(4), or limited to
`
`importation and provision of covered products that are replacements for covered
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`products purchased by consumers prior to the date this Order becomes final
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`within the meaning of 19 U.S.C. § 1337(j)(4), provided that replacement is
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`pursuant to a warranty for the replaced article.
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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, 2023.
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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 (whether held in
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`warehouses or at customer sites) of covered products in 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. Submissions should refer to the
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`investigation number (“Inv. No. 337-TA-1276”) in a prominent place on the cover pages and/or
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`the first page. See Handbook for Electronic Filing Procedures,
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`http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf.
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`Persons with questions regarding filing should contact the Secretary (202-205-2000). If
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`Respondent desires to submit a document to the Commission in confidence, it must file the
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`original and a public version of the original with the Office of the Secretary and must serve a
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`copy of the confidential version on Complainant’s counsel.1
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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)
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`For the purpose of securing compliance with this Order, Respondent shall retain
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`any and all records relating to the sale, marketing, or distribution in the United
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`States of covered products, made and received in the usual and ordinary course of
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`business, whether in detail or in summary form, for a period of three (3) years
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`from the close of the fiscal year to which they pertain.
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`(B)
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`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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`1 Complainants 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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`VII.
`Service of Cease and Desist Order
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`The Secretary shall serve copies of this Order upon each party of record in this
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`investigation that has retained counsel or otherwise provided a point of contact for electronic
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`service. While temporary remote operating procedures are in place in response to COVID-19,
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`the Office of the Secretary is not able to serve parties that have not retained counsel or otherwise
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`provided a point of contact for electronic service. Accordingly, pursuant to Commission Rules
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`201.16(a) and 210.7(a)(1) (19 C.F.R. §§ 201.16(a), 210.7(a)(1)), the Commission orders that the
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`Complainant complete service of this Order for any party without a method of electronic service
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`noted on the attached Certificate of Service and shall file proof of service on the Electronic
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`Document Information System (EDIS).
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`Respondent is ordered and directed to:
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`(A)
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`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, transfer, or sale of imported covered products in the United States;
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`(B)
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`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 of the Asserted Patents.
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`VIII.
`Confidentiality
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`Any request for confidential treatment of information obtained by the Commission
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`pursuant to section 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 section 337(f) of the Tariff Act of 1930 (19 U.S.C. § 1337(f)), 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
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`(19 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 (60)
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`day period in which this Order is under review by the United States Trade Representative, as
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`delegated by the President (70 Fed. Reg. 43,251 (Jul. 21, 2005)), subject to Respondent’s posting
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`of a bond in the amount of zero percent (0%, i.e., no bond) of their entered value. This bond
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`provision does not apply to conduct that is otherwise permitted by section IV of this Order.
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`Covered products imported on or after the date of issuance of this Order are subject to the entry
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`bond as set forth in the exclusion order issued by the Commission, and are not subject to this
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`bond provision.
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`By order of the Commission.
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`Issued: October