EXHIBIT 2034
`EXHIBIT 2034
`
`
`
`ITC documents
`ITC documents
`
`
`EXHIBIT 2034
`
`
`
`ITC documents
`ITC documents
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN LOOM KITS FOR CREATING
`LINKED ARTICLES
`
`~
`Investigation No. 337-TA-923
`
`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 and sale of certain loom
`
`kits for creating linked articles covered by claim 4 of U.S. Patent No. 8,485,565 (“the ’565
`
`patent”) asserted in this investigation.
`
`i
`
`Having reviewed the record in this investigation, including the written submissions of the
`
`patties, the Commission has made its determinations 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 and 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 loom kits for
`
`creating linked articles (“covered products”).
`
`.
`
`The Commission has also determined that the public interest factors enumerated in
`
`19 U.S.C. § l337(d) do not preclude the issuance of the general exclusion order, and that the
`
`bond during the Presidential review period shall be in the amount of 100 percent of the entered
`
`value for all covered products in question.
`
`
`
`
`Accordingly, the Commission hereby ORDERS that:
`
`_
`
`Loom kits for creating linked articles covered by claim 4 of the ’565 patent are
`
`excluded from entry into the United States for consumption, entry for
`
`consumption from a foreign-trade zone, or withdrawal from a warehouse for V
`
`consumption, for the remaining term of the patent, except under license of the
`
`patent owner or as provided by law.
`
`Notwithstanding paragraph 1 of this Order, the aforesaid loom kits for creating
`
`linked 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 one hundred (100) percent of the
`
`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. 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 days after the date
`
`of receipt of this Order.
`
`i
`
`At the discretion of U.S. Customs and Border Protection (“CBP”) and pursuant to
`
`procedures that it establishes, persons seeking to import loom kits for creating
`
`linked 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
`
`-2
`
`
`
`of this Order. At its discretion, CBP may require persons who have provided the
`
`certification described in this paragraph to fumish such records or analyses as are
`
`necessary to substantiate the certification.
`
`l
`
`In accordance with 19 U.S.C. § 1337(1),the provisions of this Order shall not
`
`apply to loom kits for creating linked articles 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.
`
`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).
`
`The Commission Secretary shall serve copies of this Order upon each party of V
`
`record in this investigation and upon the Department of Health and Human
`
`Services, the Department of Justice, the Federal Trade Commission, and U.S.
`
`Customs and Border Protection.
`
`Notice of this Order shall be published in the Federal Register.
`
`By order of the Commission.
`
`Issued May 21, 2015
`
`Lisa R. Barton
`Secretary to the Commission
`
`-3
`
`
`
`CERTAIN LOOM KITS FOR CREATING LINKED
`ARTICLES
`
`Inv. N0. 337-TA-923
`
`PUBLIC CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached COMMISSION ORDER has been
`served by hand upon the Commission Investigative Attomey, John K. Shin Esq., and the
`following parties as indicated, on May 21, 2015.
`_
`
`‘
`
`Lisa R. Barton, Secretary
`U.S. Intemational Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`On Behalf of Complainant Cho0n’s Design Inc.:
`
`Timothy J. Murphy, Esq.
`CARLSON, GASKEY & OLDS, P.C.
`400 W.'Maple Rd., Ste. 350
`Binningham, MI 48009
`
`Resgondentsz
`
`_
`
`Island In The Sun LLC
`175 Courts Lane
`Little Rock, AR 72222
`
`Quality Innovations Inc.
`12941 Ramona Boulevard, Suite D
`Irwindale, CA 91706
`
`Yiwu Mengwang Craft & Art Factory
`7F, 2 Unit, No. 290 of Jingfa Road
`Yiwu City, Zhejiang
`China
`
`Shenzhen Xuncent Technology Co., Ltd
`2nd Floor-A, Bldg. 1, Building 1, 5, 6,
`Zhulongtian Road, Fourth Industrial Zone
`Shuitian Community, Shiyan Street, Baoan Dist.
`Shenzhen, Guangdong
`China
`
`III Via Hand Delivery
`III Via Express Delivery
`Via First Class Mail
`El Other:
`
`III Via Hand Delivery
`D Via Express Delivery
`Via First Class Mail
`Cl Other:
`i
`
`II] Via Hand Delivery
`U Via Express Delivery
`Via First Class Mail
`[:1 Other:
`
`l:l Via Hand Delivery
`El Via Express Delivery
`IX!Via First Class Mail
`[:1 Other:
`
`III Via Hand Delivery
`III Via Express Delivery
`Via First Class Mail
`U Other:
`
`
`
`CERTAIN LOOM KITS FOR CREATING LINKED
`ARTICLES
`
`lnv. N0. 337-TA-923
`
`Certificate of Service —Page 2
`
`My Imports USA LLC
`75 Ethel Road,
`Edison, NJ 08817
`
`Jayfinn LLC
`3875 E. Cloudburst Dr.
`Gilbert, AZ 85297
`
`Hongkong Haoguan Plastic Hardware Co., Limited
`Industry Part of Gong Chuang Ying, N0. 8 of
`NanDan Road of Nanwan Street, Long Gang District
`Shenzhen, Guangdong
`China 518100
`
`Blinkee.co1n, LLC
`769 Center St., PMB 58
`Fairfax, CA ‘ 94930
`
`Eyyup Arga
`194 Westminster Place
`Lodi, NJ 07644
`
`ltcoolnomore
`Room 401, Unit 3, Building 15, Xiawan
`G 2nd District Yiwu
`Jinhua, Zhejiang
`China 322000
`
`El Via Hand Delivery
`Cl Via Express Delivery
`Via First Class Mail
`I1 Other:
`
`II] Via Hand Delivery
`l:| Via Express Delivery
`E Via First Class Mail
`U Other:
`
`C! Via Hand Delivery
`Cl Via Express Delivery
`@ Via First Class Mail
`Cl Other:
`
`Q Via Hand Delivery
`U Via Express Delivery
`Via First Class Mail
`C] Other:
`
`El Via Hand Delivery
`II! Via Express Delivery
`Via First Class Mail
`III Other:
`
`[:1Via Hand Delivery
`[:1 Via Express Delivery
`Via First Class Mail
`U Other:
`
`
`
`PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`
`5
`
`CERTAIN LOOM KITS FOR CREATING
`LINKED ARTICLES
`
`
`Inv. No. 337-TA-923
`
`ORDER NO. 13:
`
`INITIAL DETERMINATION GRANTING COMPLAINANT’S
`MOTION FOR SUMMARY DETERMINATION WITH RESPECT
`TO DOMESTIC INDUSTRY AND VIOLATION OF SECTION 337,
`AND REQUEST FOR GENERAL EXCLUSION ORDER
`
`(February 3, 2015)
`
`On December 5, 2014, Complainant Choon’s Design Inc. (“Complainant”) filed a motion
`
`for summary determination with respect to domestic industry and violation of Section 337 of the
`
`Tariff Act of 1930 (Amended) as well as a request for a General Exclusion Order (“GEO”).
`
`(Motion No. 923-009.) Complainant seeks a determination that a domestic industry exists, that
`
`there has been importation and a violation of Section 337 by Respondents Island In The Sun
`
`LLC (“Island”); Quality Innovations Inc. (“Quality”); Yiwu Mengwang Craft & Art Factory
`
`. (“Yiwu”); Shenzhen Xuncent Technology Co., Ltd (“Shenzhen”); My Imports USA LLC (“My
`
`Imports”); Jayfinn LLC (“Jayfmn”); Hongkong Haoguan Plastic Hardware Co. Limited (“HK
`
`Haoguan”); Blinkee.com, LLC (“Blinkee”); Eyyup Arga (“Eyyup”); and Itcoolnomore. On
`
`December 17, 2014,
`
`the Commission Investigative Staff ‘(“Staff’) submitted a‘ response
`
`supporting the motion. As of the date of this order, no party has responded.
`
`
`
`PUBLIC VERSION
`
`1.
`
`BACKGROUND
`
`. A.
`
`Institution and Procedural History of This Investigation
`
`By publication of a notice in the Federal Register on August 6, 2014, pursuant to
`
`subsection (b) of section 337 of the Tariff Act of 1930, as amended, the Commission instituted
`
`this investigation to determine:
`
`whether there is’ a Violation of subsection (a)(l)(B) of section 337 in the
`importation into the United States, the sale for importation, or the sale within the
`United States after importation of certain looms kits for creating linked articles by
`reason of infringement of one or more claims 2-4 of U.S. Patent No. 8,485,565
`("the ’565 patent"), and whether an industry in the United States exists as required
`by subsection (a)(2) of section 337.
`
`79 Fed. Reg. 45844 (August 6, 2014).
`
`x
`
`The complainant is Choon’s Design Inc. of Wixom, MI.
`
`(Id.) The respondents are
`
`Wangying of Jinhua, Zhejiang, China; Island In The Sun LLC of Little Rock, AR; Quality
`Innovations Inc. of Irwindale, CA; Yiwu Mengwang Craft & Art Factory of Yiwu City,
`
`Zhejiang, China; Shenzhen Xuncent Technology Co., Ltd. of Shenzhen, Guangdong China;
`
`Altatac Inc. of Los Angeles, CA (“Altatac”); My Imports USA LLC of Edison, NJ; Jayfinn LLC
`
`' of Gilbert, AZ; Creative Kidstuff, LLC of Minneapolis, MN; Hongkong Haoguan Plastic
`
`Hardware Co. of Shenzhen, Guangdong, China; Blinkee.com, LLC of Fairfax, CA; Eyyup Arga
`
`of Lodi, NJ; and Itcoolnomore of Jinhua, Zhejiang, China.
`
`(Id.) The Office of Unfair Import
`
`V
`
`Investigations is participating in this investigation.
`
`(Id.) Each of the named respondents has
`
`either defaulted or been terminated from this Investigation as summarized in the following table:
`
`
`
`PUBLIC VERSION
`
`Respondents
`
`Docket Entry
`
`Wangying
`
`
`
`
` Terminated
`
`Order No. 10 (December 11, 2014)
`based on
`
`withdrawal of
`Comgnt
`
`
`In default
`Order No. 5 (September 6, 2014)
`Island In The Sun LLC
`
`Quality Innovations Inc.
`In default
`Order No. 7 (November 13, 2014)
`
`
`
`
`
`Order No. 7 (November 13, 2014)
`Yiwu_Mengwang Craft & Art
`In default
`Factory
`
`
`
`
`
`’
`
`My Imports USA LLC
`
`Comlaint
`In default
`
`Order No. 7 (November 13, 2014)
`
`Jayfinn LLC
`
`A
`
`In default
`
`Order No. 7 (November 13, 2014)
`
`
`
`Creative Kidstuff, LLC
`_
`Terminated
`' Order No. 3 (September 2, 2014)
`
`based on
`‘
`
`
`withdrawal of
`
`Com o laint
`
`Order No. 7 (November 13, 2014)
`Hongkong Haoguan Plastic
`In deault
`Hardware Co., Limited
`
`
`
`Blinkee.com, LLC
`
`In default
`
`Order No. 7 (November 13, 2014) _
`
`Eyyup Arga
`
`In default
`
`-
`
`Order No. 7 (November 13, 2014)
`
`
`
`
`
`In default
`
`Order No. 7 (November 13, 2014)
`
`Itcoolnomore
`
`1 Notice of Commission Determination Not to Review Two Initial Determinations Finding Certain Respondents in
`Default and Terminating the Investigation with Respect to Another Respondent, (January 9, 2015).
`2 Notice of Commission Determination Not to Review an Initial Determination Terminating the Investigation as to
`Respondent Altatac, Inc., (January 13, 2015).
`3 Notice of Commission Determination Not to Review an Initial Determination Terminating the Investigation as to
`Respondent Creative Kidstuff, LLC, (September 26, 2014).
`3
`
`
`
`Shenzhen Xuncent
`
`Technology Co., Ltd
`
`Altatac Inc.
`
`
`
`
`
`
`
`Terminated
`based on
`
`withdrawal of
`
`Order No. 7 (November 13,2014)
`In default
`
`
`
`
`
`
`Order No. 11
`
`(December 18, 2014)
`
`
`
`
`
`PUBLIC VERSION
`
`In compliance with 19 C.F.R. § 210.16(c)(2), Complainant included in its Motion a
`
`declaration that it would seek a General Exclusion Order (“GEO”).
`(Mot. at 1). The defaulting
`Respondents addressed by Complainant in its Motion are (1) Island, (2) Quality, (3) Yiwu, (4)
`
`Shenzhen, (5) My Imports, (6) Jayfinn, (7) HK Haoguan, (8) Blinkee, (9) Eyyup, and (10)
`
`Itcoolnomore. M On December" 9, 2014, the AIJ issued an Initial Determination (“ID”) finding
`
`nine of these Respondents in default. (Order No. 9). (Respondent Island in the Sun LLC
`
`previously elected to default (Order No. 5; (September 16, 2014).) On January 9, 2015, the
`
`Commission determined not
`
`to review this ID (Order No. 9)
`
`(Notice of Commission
`
`Determination Not to Review Two Initial Determinations Finding Certain Respondents in
`
`Default and Tenninating the Investigation with Respect to Another Respondent). On December
`22, 2014,.the ALJ issued an order granting ajoint motion to stay the procedural schedule. (Order
`
`No. 12; (December 22, 2014).)
`A
`B. The Parties
`
`Complainant Choon’s Design Inc. is a Michigan corporation having its principal place of
`
`business at 48813 West Road, Wixom, Michigan 48393. (Complaint at 3.) Choon’s Design Inc.
`
`was founded by Cheong Choon Ng.
`
`(Id.) Mr. Ng invented the “Rainbow Loom.” (Id.) The
`
`Rainbow Loom has become—without qualification—a smash hit within the toy industry.
`
`(Id)
`
`On February 15, 2014, the Toy Industry Association voted it “Toy of the Year.” (Id.)
`
`Wangying is a Chinese corporation with its principal place of business at No. 301 Chang
`
`Chun 2 Road #38, Jinhua ZHEJIANG, CHINA 322000.
`(Complaint at 4.) ’ Wangying is a
`provider of a loom kit named “Magical Loom.”
`(Id.) The Magical Loom is manufactured,
`
`assembled, packaged and/or tested outsideuthe United‘States.
`
`(Id.) Wangying imports the
`
`Magical Loom into the United States. (Id.)
`
`
`
`PUBLIC VERSION
`
`Island In The Sun LLC is a limited liability company having its principal place of
`
`business at 175 Courts Ln., Little Rock, AR 72222.
`
`(Complaint at 4.) As part of its business,
`
`Island In The Sun provided customers a loom kit named “Loom Bands Kit Colorful DIY.” (Id.)
`
`The Loom Bands Kit Colorful DIY is manufactured, assembled, packaged and/or tested outside
`
`the United States.
`
`(Id.) The Loom Bands Kit Colorful DIY is imported into the United States
`
`where companies, such as Island In The Sun, sell them. (Id. at 5.)
`
`Quality Innovations Inc. is a California corporation having its principal place of business
`
`at 12941 Ramona Boulevard, Suite D, Irwindale, CA 91706.
`
`(Complaint at 5.) As part of its
`
`business, Quality Innovations provided customers a loom kit named “Deluxe Magic Loom Kit.”
`
`(Id.) The Deluxe Magic Loom Kit is manufactured, assembled, and/or packaged and tested
`
`outside the United States.
`(Id.) The Deluxe Magic Loom Kit is imported into the United States
`where companies, such as Quality Innovations, sell them. (Id.)
`2
`
`Yiwu Mengwang Craft & Art Factory is a Chinese corporation having its principal place
`
`of business at 7F, 2 Unit, No. 290 of Jingfa Road, Yiwu City, Zhejiang, Province, China.
`(Complaint at 5.) As part of its business, Yiwu shipped a loom kit named “Deluxe Magic Loom
`
`Kit” from China into the United States to Quality Innovations, Inc.
`
`(Id.) The Deluxe Magic .
`
`Loom Kit is manufactured, assembled, and/or packaged and tested outside the United States.
`
`(Id) The Deluxe Magic Loom Kit is imported into the United States by Yiwu. (Id.)
`
`Shenzhen Xuncent Technology Co., Ltd is a Chinese corporation having its principal
`
`place of business at 2nd Floor-A, Bldg. 1, Building 1, 5, 6, Zhulongtian'Road, Fourth Industrial
`Zone, Shuitian Community, Shiyan Street, Baoan Dist, Shenxhen, Guangdong, China and 12941
`
`Ramona Boulevard, Suite D, Irvvindale, CA 91706.
`
`(Complaint at 6.) As part of its business,
`
`Shenzhen shipped a loom kit named “Deluxe Magic Loom Kit” from China to the United States
`
`5
`
`
`
`PUBLIC VERSION
`
`to Quality Innovations, Inc.
`
`(Id.) The Deluxe Magic Loom Kit is manufactured, assembled,
`
`and/or packaged and tested outside the United States.
`
`(Id.) The Deluxe Magic Loom Kit is
`
`imported into the United States by Shenzhen. .(Id.)
`
`Altatac Inc.
`
`is a California corporation having its principal place of business at 532
`
`Mateo Street, Los Angeles, CA 90013.
`
`(Complaint at 6.) As part of its business, Altatac
`
`provided customers‘ a loom kit named “Krazy Looms Bandz.” (Id.) The Krazy Looms Bandz kit
`
`is manufactured, assembled, and/or packaged and tested outside the United States.
`
`(Id.) The
`
`I
`
`Krazy Looms Bandz is imported into the United States where companies, such as Altatac, sell
`
`I
`
`them. (Id.)
`
`My Imports USA LLC is a New Jersey limited liability company having its primary place
`
`of business at 75 Ethel Road, Edison, New Jersey 08817.
`
`(Complaint at 6.) My Imports USA
`
`imported a loom kit named “Krazy Looms Bandz" and sold it to retailers to be provided to
`
`customers.
`
`(Id. at 7.) The Krazy Looms Bandz kit is manufactured, assembled, and/or packaged
`
`‘and tested outsidethe United States.
`
`,(Id.) The Krazy Looms Bandz kit is imported into the
`
`United States where companies, such as My Imports USA, sell them. (Id.)
`
`Jayfinn LLC is a limited_liability company having its principal place of business at 3875
`
`E. Cloudburst Dr., Gilbert, AZ 85297.
`(Complaint at 7.) As part of its business, Jayfinn
`provided customers a loom kit named “Goodie Looms.”
`(Id.) The Goodie Looms kit is
`
`manufactured, assembled, packaged and/or tested outside the United States.
`
`(Id.) The Goodie
`
`Looms kit is imported into the United States where companies, such as Jayfinn LLC, sell them.
`
`(Id-)
`
`Creative Kidstuff, LLC‘ is a limited liabilityicompany having its principal place of A
`business at 3939 46”‘ Street, Minneapolis, Minnesota 55406.
`(Complaint at 7.) Creative
`
`6
`
`
`
`PUBLIC VERSION
`
`Kidstuff owns and operates retail stores, including a retail store located at 2588 World Gateway
`
`Place, Space A2605, Detroit, MI 48242, which provided customers a loom kit named “DIY
`
`Loom Bands Colorful.” (Id.) The DIY Loom Bands Colorful kit is manufactured, assembled,
`
`packaged and/or tested outside the United States.
`
`(Id.) The DIY Loom Bands Colorful kit is
`
`imported into the United States where companies, such as Creative Kidstuff, sell them.
`
`(Id. at 7-
`
`8.) .
`
`Hongkong Haoguan Plastic Hardware Co, Limited is a Chinese corporation with its
`
`principal place of business at Industry Part of Gong Chuang Ying, No. 8 of NanDan Road of
`
`Nanwan Street, Long Gang Distrit, Shenzhen City, GuangDong Province Post Code 518100.
`
`(Complaint at 8.) Hongkong Haoguan Plastic Hardware is a provider of loom kits named “Cool
`
`Rainbow Loom” and “Twist Bandz Mania.” (Id.) The Cool Rainbow Loom and Twist Bandz
`
`Mania kits are manufactured, assembled, packaged and/or tested outside the United States.
`
`(Id.) 4
`
`The Cool Rainbow Loom and Twist Bandz Mania kits are imported into the United States, or
`
`sold for importation into the United States, by Hongkong Haoguan Plastic Hardware. (Id.)
`
`Blinkee.com, LLC is a limited liability company having its principal place of business at
`
`769 Center St. PMB 58, Fairfax, CA 94930.
`
`(Complaint at 8.) As part of its business,
`
`Blinkee.com provided customers a loom kit named “DIY Loom Bands Colorful.” (Id.) The DIY
`
`- Loom Bands Colorful kit is manufactured, assembled, packaged and/or tested outside the United
`
`States.
`
`(Id) The DIY Loom Bands Colorful kit is imported into the United States where
`
`companies, such as Blinkee.com, sell them. (Id.)
`Eyyup Arga is an individual residing at 194 Westminster Pl, Lodi, NJ 07644. (Complaint
`
`(Id.) As part of his business, Eyyup Arga
`liyyup Arga sells items via Amazon.com.
`at 9.)
`provided customers a loom kit named “Educational Colorful Loom Kit.” (Id.) The Educational
`
`7
`
`
`
`PUBLIC VERSION
`
`Colorful Loom Kit is manufactured, assembled, packaged and/or tested outside the United
`
`States.
`
`(Id) The Educational Colorful Loom Kit is imported into the United States where I
`
`individuals and/or companies such as Eyyu-p Arga sell them. (Id)
`
`Itcoolnomore is a Chinese corporation with its principal place "of business at Room 401,
`
`I
`
`Unit 3, Building 15, Xiawan, G 2"d Distric Yiwu, Jinhua Zhejiang, China 322000. (Complaint at
`
`9.) Itcoolnomore is a provider of a loom kit named “Colorful Loom Bands." (Id) The Colorful
`Loom Bands kit is -manufactured, assembled, packaged and/or tested outside the United States.
`
`(Id) The Colorful Loom Bands kit is imported into the United States by Itcoolnomore. (Id)
`
`C. U.S. Patent No. 8,485,565
`
`U.S. Patent No. 8,485,565 (“the ’565 patent’), entitled “Brzmnian Link Making Device
`
`and Kit,” issued on July 16, 2013, based on a patent application filed on September 8, 2011, and
`
`claims priority to an earlier provisional application filed on November 5, 2010. (See Motion, Ex.
`7: ’565 patent, cover page.) The ’565 patent identifies
`Cheong Choon Ng (“Mr. Ng”) as "the
`
`sole inventor, and the assignment records reflect assignment to Choon’s Design, LLC, which is
`
`now Choon’s Design,
`
`Inc.
`
`(“Complainant”),
`
`the Complainant
`
`in this investigation.
`
`(Id.;
`
`Complaint at 10; Ex. 2.) Choon’s Design, Inc. (“Complainant”) is thus the owner by assignment
`
`of all right, title, and interest in the ’565 patent.
`
`‘ D. The Product at Issue
`
`The product at issue is a toy known as a loom.
`
`(Mot. Memo. at 2.) The basic idea of the
`
`loom is to use a specifically-machined hook to pull rubber bands (often multi_-colored) around
`
`pegs supported on a structure and, by doing that, turn those rubber bands into_different shapes
`
`and patterns—from an American flag to a toy poodle to a three-piece suit.
`Complainant’s toy product is known as the'Rainbow Loom ®. (Id)
`I
`
`A
`
`(Id at 3.)
`
`8
`
`
`
`PUBLIC VERSION
`
`Complainant identifies the following ten defaulting Respondents as being responsible for
`
`V the importation of nine accused products:
`
`(1) Island (U.S. seller of “Loom Bands Kit Colorful DIY”),
`(2) Quality (U.S. seller of “Deluxe Magic Loom Kit”),
`(3) Yiwu (Chinese exporter of “Deluxe Magic Loom Kit”),
`(4) Shenzhen (Chinese exporter of “Deluxe Magic Loom Kit”),
`(5) My Imports (U.S. distributor of “Krazy Looms Bandz”),
`(6) Jayfinn (U.S. seller of “Goodie Looms”),
`(7) HK Haoguan (Chinese exporter of “Cool Rainbow Loom” and “Twist Bandz
`Mania”),
`(8) Blinkee (U.S. seller of “DIY Loom Bands Colorful”),
`(9) Eyyup (U.S. seller of “Educational Colorful Loom Kit”), and
`(10) Itcoolnomore (Chinese exporter of “Colorful Loom Bands”).
`
`(Complaint at 1111 18-43).
`
`II.
`
`LEGAL STANDARDS
`
`Summary Determination
`
`Pursuant to Commission Rule 210.18, summary determination “... shall be rendered if
`
`pleadings and any depositions, answers to interrogatories, and admissions on file, together with
`
`the affidavits, if any, show that there is no genuine issue as to any material fact and that the
`moving party is entitled to a summary determination as a matter of law.” 19 C.F.R.i§ 210.18(b);
`
`see also DeMarz'nz' Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed, Cir. 2001); Wenger
`
`Mfg., Inc. v. Coating Machinery Systems, Inc., 239 F.3d 1225, 1231 (Fed. Cir. 2001). The
`
`evidence “mustbe viewed in the light most favorable to the party opposing the motion .
`
`.
`
`. with
`
`doubt resolved in favor of the nonmovant.” Crown Operations Int ’l, Ltd. v. Solutia, Inc., 289
`
`F.3d 1367, 1375 (Fed. Cir. 2002); see also Xerox Corp. v. 3Com Corp, 267 F.3d 1361, 1364
`
`(Fed. Cir. 2001) (“When ruling on a motion for summary judgment, all of the nonmovant’s
`
`evidence is to be credited, and all justifiable inferences are to be drawn in the nonmovant’s
`
`favor.”). “Issues of fact are genuine only ‘if the evidence is such that a reasonable [fact finder]
`
`9
`
`
`
`PUBLIC VERSION
`
`could return a verdict for the nonmoving party.’”
`Id "at 1375 (quoting Anderson v. Liberty
`Lobby, Inc., 477 U.S. 242, 248 (1986)). The trier of fact should “assureitself that there is no
`
`reasonable Version of the facts, on the summary judgment record, whereby the nonmovant could
`
`prevail, recognizing that the purpose of summary judgment is not to deprive a litigant of a fair
`
`hearing, but to avoid an unnecessary trial.” EMI Group North America, Inc. v. Intel Corp., 157
`
`F.3d 887, 891 (Fed. Cir. 1998). “Where an issue as to a material fact cannot be resolved without
`
`observation of the demeanor of witnesses in order to evaluate their credibility, summary
`
`judgment is not appropriate.” Sandt Technology, Ltd v. Resco Metal and Plastics Corp., 264 _
`F.3d 1344, 1357 (Fed. Cir. 2001) (Dyk, C.J., concurring).
`“In other I words,
`i[s]ummary
`
`judgment is authorized when it is quite clear what the truth is,’ [citations omitted], and the law
`97
`
`requires judgment in favor of the movant based upon facts not in genuine dispute.
`
`Paragon
`
`Podiatry Laboratory, Inc. v. KLM Laboratories, Inc., 984 F.2d 1182, 1185 (Fed. Cir. 1993).
`I
`A violation of Section 337 may not be found unless supported by “reliable, probative, and
`
`substantial evidence.” 35 U.S.C. § 559; see also Certain Sildenafil or any Pharmaceutically
`
`Acceptable Salt Thereof Such as Sildenafil Citrate and Products Containing Same, Inv. No.
`
`337-TA-489, Com. Op. Remedy, the Public Interest, and Bonding at 4-5 (July 2004).
`III.
`VALIDITY AND ENFORCEABILITYI
`
`A patent
`
`is presumed valid under 35 U.S.C. § 282.
`
`Therefore, “[t]he burden of
`
`establishing invalidity of a patent or any claim thereof shall rest on the party asserting such
`
`invalidity.” See Certain Devices for Connecting Computers Via Telephone Lines, ITC Inv. No.
`
`337-TA-360, Initial Determination at 2 (May 24, 1994).
`
`The Staff presumes the validity of the ’565‘ patent, including asserted claim 4.
`(Staff at ’
`18; citing 35 U.S.C. § 282.) The Staff, however, points out that it “is aware of an earlier
`
`10
`
`
`
`PUBLIC VERSION
`
`challenge to the validity of claims 1 and 5-14 of the ’565 patent — but not claim 4 — in a Request
`
`for Inter Partes Review (“IPR”) filed by LaRose Industries, LLC, but which is not a party in this
`
`investigation.” (Id.) Additionally, the Staff mentioned that the Patent Trial and Appeal Board
`
`(“PTAB”) instituted an IPR, citing one reference in particular by Pugh as likely to anticipate and
`
`thus invalidate certain claims of the ’565 patent. (Id; citing Motion, Ex. 19: GB 2 147 918; see
`
`also Ex. 20: IPR petition; Ex. 9: PTAB Decision to Institute, at 17-18.) However, in the Staff’s
`
`view, the Pugh reference (GB 2 147 918) neither anticipates nor renders obvious claim 4.
`
`Complainant submits that Claim 4 of the ’565 patent “requires a combination including a
`
`base having .“upright extending cylinders” extending from a base that are received in “mounting
`
`openings” within each of the plurality of pins.” (Mot. Memo. at 23.) Complainant then points
`
`out that Pugh does not disclose these features. (Id.)
`
`Regardless of the IPR proceeding before the PTAB, the ALJ finds that there have been no
`
`arguments or evidence presented in this investigation that Claim 4 of the ’565 patent is invalid
`and/or unenforceable. Therefore, the ALJ finds that the ’565 patent is valid and enforceable.
`IV.
`IMPORTATION
`.
`
`Section 337(a)(1)(B) declares unlawful “the importation into the United States, the sale
`
`for importation, or the sale within the United States after importation by the owner, importer, or
`
`consignee, of articles that infringe a valid and enforceable United States patent.” 19 U.S.C. §
`
`1337(a)(1)(B). A complainant “need only prove importation of a single accused product to
`
`satisfy the importation element.” Certain Purple ‘Protective Gloves, 337-TA-500, Order No. 17
`
`(September 23, 2004).
`
`Complainant must establish that the Defaulting Respondents’ products were imported
`
`into the United States, sold for importation, or sold within the United States after importation.
`
`ll
`
`
`
`PUBLIC VERSION
`
`19 U.S.C. § 1337(a)(1)(B). Complainant argues that the accused products were manufactured.
`
`abroad and were sold in the United States. (Mot. Memo. at 15-22.) The Staff does not dispute
`
`the evidence and contends that Complainant has satisfied the importation requirement.
`
`(Staff
`
`Resp. at 10-11.)
`
`1.
`
`Island in the Sun LLC
`
`Complainant points out that Island In The Sun LLC is engaged in the sale within the
`
`United States after importation of a loom kit called “Loom Bands Kit Colorful DIY.” (Mot.
`
`Memo. at 16.) The Loom Bands Kit Colorful DIY is manufactured, assembled, and/or packaged
`
`and tested outside of the United States, specifically, at least in China.
`
`(Id.) These same products
`
`are then imported into the United States, sold for importation, and/or sold within the United
`
`States after
`
`importation.
`
`(Id.)
`
`Complainant points out
`
`that around late April 2014,
`
`Complainant’s counsel ordered the Loom Bands Kit Colorful DIY via the internet.
`(Id.) The
`Loom Bands Kit Colorfiil DIY was shipped to Complainant’s counsel in Huntington Woods, MI
`
`from Island In The Sun LLC, located at 175 Courts Ln., Little Rock, Arkansas 72223. (Id.)
`
`Complainant submits that according to the packaging, the Loom Bands Kit Colorful DIY was
`
`made in China. (Id.)
`
`Thus, the evidence shows that Island In The Sun LLC has imported, sold for importation,
`
`and/or sold after importation into the United States the accused product.
`
`2. Quality Innovations Inc.
`
`Complainant submits that Quality Innovations Inc. is engaged in the importation, and/or
`
`the sale within the United States after importation, of a loom kit called “Deluxe Magic Loom
`Kit.” (Mot. Memo. at 17.‘) The Deluxe Magic ‘Loom Kit is manufactured, assembled, and/or
`packaged and tested outside of the United States, specifically, at least in China by Respondents
`
`12
`
`
`
`PUBLIC VERSION
`
`Yiwu and Shenzhen. (Id.) These same products are then imported into the United States, sold for
`
`importation, and/or sold within the United States after importation by Quality Innovations Inc.
`
`(Id.)
`
`Thus,
`
`the I evidence shows that Quality Innovations Inc. has
`
`imported,
`
`sold for
`
`importation, and/or sold after importation into the United States the accused product.
`
`3. Yiwu Mengwang Craft & Art Factory
`
`Complainant submits that Yiwu Mengwang Craft & Art Factory (“Yiwu”) is engaged in
`
`the importation and/or the sale for importation of a loom kit called “Deluxe Magic Loom Kit.”
`
`(Mot. Memo. at 17.) According to Complainant, the Deluxe Magic Loom kit is manufactured,
`
`assembled, and/or packaged and tested outside of the United States, specifically, at least in
`
`China. (Id. at 1.7-1S.) These same products are then shipped from China to the United States by
`
`Yiwu. (Id. at 18.)
`
`Thus, the evidence shows that Yiwu Mengwang Craft & Art Factory has imported, sold
`
`for importation, and/or sold after importation into the United States the accused product.
`
`4. Shenzhen Xuncent Technology Co., Ltd
`
`Complainant submits that Shenzhen Xuncent Technology Co., Ltd. (“Shenzhen”) is
`
`engaged in the importation and/or the sale for importation of a loom kit called “Deluxe Magic
`
`Loom Kit.” (Mot. Memo. at 18.) According to Complainant, the Deluxe Magic Loom kit is
`
`manufactured, assembled, and/or packaged and tested outside of the United States, specifically,
`
`at least in'China. (Id.) These same products are then shipped from China to the United States by
`
`Shenzhen. (Id.)
`
`Thus, the evidence shows that Shenzhen Xuncent Technology Co., Ltd has imported, sold
`for importation, and/or sold after importation into the United States the accused product.
`
`13
`
`
`
`A PUBLIC VERSION
`
`.5. My Imports USA LLC
`
`1 Complainant submits that My Imports USA LLC is engaged in the importation from
`
`China and the sale within the United States after importation of a loom kit called “Krazy Looms
`
`Bandz-Set.” (Mot. Memo. at 19.) According to Complainant, My Imports USA imported the
`
`Accused Products and distributed to others, suchas Altatac Inc., for sale to customers. (Id.)
`
`I
`
`Thus, the evidence shows that My Imports USA LLC has imported, sold for importation,
`
`and/or sold after importation into the United States the accused product.
`
`6. Jayfinn LLC
`
`Complainant submits that Jayfinn LLC is engaged in the sale within the United States
`
`after importation of a loom kit called “Goodie Looms.” (Mot. Memo. at 19.) According to
`
`Complainant, the Goodie Looms kit is manufactured, assembled, and/or packaged and tested
`
`outside of the United States, specifically, at least in China.
`
`(Id.) These same products are then
`
`imported into the United States, sold for importation, and/or sold within the United States after
`
`importation.
`(Id) Around late April, 2014, Complainant’s counsel ordered the Goodie Looms
`kit Via the intemet.
`(Id.) The Goodie Looms kit was shipped to Complainant’s counselpin
`
`Huntington Woods, MI from Jayfinn LLC, via a shipping facility located at 172 Trade Street,
`Lexington, Kentucky 40511. (Id.)
`1
`
`Thus, the evidence shows that Jayfinn LLC has imported, sold for importation, -and/or
`
`sold after importation into the United States the accused product.
`
`I
`
`7. Hongkong Haoguan Plastic Hardware Co. Limited
`Complainant submits that Hongkong Haoguan Plastic Hardware Co., Limited is
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
