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Certain Carburetors and Products Containing Such Carburetors In the Matter of CERTAIN CARBURETORS AND PRODUCTS CONTAINING SUCH CARBURETORS 337-TA-1123 Publication 5080 June 2020 U.S. International Trade Commission Washington, DC 20436 U.S. International Trade Commission COMMISSIONERS David S. Johanson, Chairman Rhonda K. Schmidtlein, Commissioner Jason E. Kearns, Commissioner Randolph J. Stayin, Commissioner Amy A. Karpel, Commissioner Address all communications to Secretary to the Commission United States International Trade Commission Washington, DC 20436 U.S. International Trade Commission Washington, DC 20436 www.usitc.gov In the Matter of CERTAIN CARBURETORS AND PRODUCTS CONTAINING SUCH CARBURETORS 337-TA-1123 Publication 5080 June 2020 UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. In the Matter of CERTAIN CARBURETORS AND Investigation N0. 337-TA-1123 PRODUCTS CONTAINING SUCH CARBURETORS NOTICE OF COMMISSION DECISION TO REVIEW IN PART AN INITIAL DETERMINATION FINDING COMPLAINANT FAILED TO SATISFY THE ECONOMIC PRONG OF THE DOMESTIC INDUSTRYREQUIREMENT; TERMINATION OF THE INVESTIGATION AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined to review in part the administrative law judge’s (“ALI”) initial determination (“ID”), which grants respondents’ motion for summary determination that the complainant failed to satisfy the economic prong of the domestic industry requirement as to U.S. Patent Nos. 6,394,424 (“the ’424 patent”); 6,439,547 (“the ’547 patent”); 6,533,254 (“the ’254 patent”); and 7,070,173 (“the ‘I73 patent). On review, the Commission affirms with modification the ID’s finding that respondents are entitled to summary determination that the complainant failed to satisfy the domestic industry requirement. The investigation is terminated. FOR FURTHER INFORMATION CONTACT: Lynde Herzbach,Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3228. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at httgs://www.usilc.gov. The public record for this investigation may be viewed on the Con1mission’s electronic docket (EDIS) at hztgs://edis.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. 1 SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on July 20, 2018, based on a complaint filed by Walbro, LLC (“Walbro”) of Tucson, Arizona. 83 Fed Reg. 34614-615 (July 20, 2018). The complaint, as supplemented, alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”) based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain carburetors and products containing such carburetors by reason of infringement of one or more claims of the ’424 patent; the ’547 patent; the ’254 patent; the ’173 patent, and U.S. Patent No. 6,540,212 (“the ’212 patent). Id. The complaint also alleges that an industry in the United States exists as required by 19 U.S.C. l337(a)(2). 83 Fed Reg. 34614-615. The notice of investigation names thirty-five (35) respondents. Id. The Office of Unfair Import Investigations (“OUII”) is also a party to the investigation. Id. The Commission previously terminated the ’2l2 patent from the investigation. Order No. 72 (Aug. 5, 2019), not reviewed, Notice (Aug. 22, 2019). On June 25, 2019, respondents Amazon.com, Inc.; LoWe’sCompanies, Inc.; Menard, Inc.; Techtronic Industries Co. Ltd.; The Home Depot, Inc.; Tractor Supply Company; Walmart, Inc.; and Zhejiang Ruixing Carburetor Manufacturing Co., Ltd. (collectively, “Respondents”), as Wellas Cabela’s LLC and Thunderbay Products, filed a motion for summary determination that Walbro failed to satisfy the economic prong of the domestic industry requirement. ID at 1. On July 12, 2019, Walbro opposed the motion. Id. OUII did not submit a response to the motion. Id On August 7, 2019, the Commission terminated Cabela’s LLC from the investigation due to settlement. Order No. 75 (Aug. 7, 2019), not reviewed, Notice (Aug. 22, 2019). On July 10, 2019, the Commission also terminated Thunderbay Products from the investigation based on a stipulated consent order and entry of a consent order. Order No. 65 (July 10, 2019), not reviewed, Notice (July 23, 2019). On August 12, 2019, the ALJ issued the subject ID granting Respondents’ motion for summary determination that Walbro failed to satisfy the economic prong of the domestic industry requirement. See ID. O11August 22, 2019, Walbro filed a petition for review of the ID. On August 29, 2019, Respondents and OUII both filed responses to Walbro’s petition for review. The Commission has detennined to review the subject ID in part. First, the Commission notes that Walbro’s petition states that it no longer asserts the ’547 patent in this investigation; and Walbro has abandoned its claim of a domestic industry with respect to the ’547 patent by failing to seek Commission review. See Walbro petition at 1; see also 19 C.F.R. 2lO.43(b)(2). Second, the Commission affinns the ID’s finding that respondents are entitled to summary determination that Walbro failed to satisfy the domestic industry requirement. However, the Commission declines to adopt certain statements on pages 4, 5, and 6 in the ID that could be 2 misinterpreted as applying a minimum threshold and as inconsistentwith the flexible approach to domestic industry analysis. The investigation is terminated. The authority for the Comrnission’s detennination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the C0mmission’s Rules of Practice and Procedure (19 CFR Part 210). By order of the Commission. Lisa R. Barton Secretary to the Commission Issued: October 11, 2019 3 CERTAIN CARBURETORS AND PRODUCTS Inv. N0. 337-TA-1123 CONTAINING SUCH CARBURETORS PUBLIC CERTIFICATE OF SERVICE I, Lisa R. Barton, hereby certify that the attached NOTICE has been served by hand upon the Commission Investigative Attorney, Vu Bui, Esq., and the following parties as indicated, on October 11, 2019. Lisa R. Barton, Secretary U.S. International Trade Commission 500 E Street, SW, Room 112 Washington, DC 20436 On Behalf of Complainants Walbro. LLC: Richard W. Hoffmann, Esq. U Via Hand Delivery REISING ETHINGTON, PC Via Express Delivery 755 W. Big Beaver Rd., Suite 1850 1:!Via First Class Mail Troy, MI 48084 1:] Other: On Behalf of Respondent L0we’s Companies. Inc.: Joshua B. Pond, Esq. U Via Hand Delivery KILPATRICK TOWNSEND & STOCKTON LLP Via Express Delivery 607 14th Street, N.W., Suite 900 C! Via First Class Mail Washington, D.C. 20005 III Other: On Behalf of Respondents Techtronic Industries Co.. Ltd. of Hong Kong d/b/a Techtronic Industries Power Equipment, Home Depot Product LLC and The Home Depot. U.S.A..Inc.: Sea.n C. Curmingham, Esq. U Via Hand Delivery DLA PIPER LLP [XiVia Express Delivery 401 B Street, Suite 1700 El Via First Class Mail San Diego, CA 92101 III Other: CERTAIN CARBURETORS AND PRODUCTS Inv. No. 337-TA-1123 CONTAINING SUCH CARBURETORS Certificate of Service —Page 2 On Behalf of Respondent Amazon.eom.’Inc.: Stefani E. Shanberg, Esq. E Via Hand Delivery MORRISON & FOERSTER LLP Via Express Delivery 425 Market Street E Via First Class Mail San Francisco, CA 94105 E Other: On Behalf of Respondents Kmart Corporation and Sears, Roebuck and Company: Eric S. Namrow, Esq. E Via Hand Delivery MORGAN, LEWIS & BOCKIUS LLP Via Express Delivery 1111 Pennsylvania Avenue, NW E Via First Class Mail Washington, DC 20004 E Other: On Behalf of Respondents Ruixing Carburetor Manufacturing Co., Ltd.. Zheiiangi P. Andrew Riley, Esq. E Via Hand Delivery MEI & MARK LLP Via Express Delivery 818 18"‘Street NW, Suite 410 E Via First Class Mail Washington, DC 20006 E Other: On Behalf of Respondent Tractor Supp_lyCompany; Daniel E. Yonan, Esq. E Via Hand Delivery STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C. E Via Express Delivery 1100 New York Avenue, NW E Via First Class Mail Washington, DC 20005 E Other: On Behalf of Respondents MAT Industries. LLC: Paul M. Baitkowski, Esq. E Via Hand Delivery ADDUCI, MASTRIANI & SCHAUMBERG, LLP E Via Express Delivery 1133 Connecticut Avenue, NW, 12*“Floor E Via First Class Mail Washington, DC 20036 E Other: On Behalf of Respondent Walmart Inc.: Rett Snotherly, Esq. E Via Hand Delivery LEVI & SNOTHERLY, PLLC E Via Express Delivery 1101 Connecticut Avenue, NW, Suite 450 E Via First Class Mail Washington, DC 20036 E Other: CERTAIN CARBURETORS AND PRODUCTS Inv. N0. 337-TA-1123 CONTAINING SUCH CARBURETORS Certificate of Service —Page 3 On Behalf of Respondent Menard. Inc.: Jeffrey L. Eichen, Esq. ‘ III Via Hand Delivery DRINKER BIDDLE & REATH LLP E Via Express Delivery 222 Delaware Avenue, Suite 1410 I1 Via First Class Mail Wilmington, DE 19801 II Other: Respondents: Fuding Youyi Trade C0., Ltd. III Via Hand Delivery No. 176, Yuhu Community, Taimushan Town, Fuding, Ningde, III Via Express Delivery Fujian, 355203 Via First Class Mail China CI Other: Feldmann Eng. & Mfg. C0., Inc. U Via Hand Delivery 520 Forest A venue III Via Express Delivery Sheboygan Falls, WI 53085 Via First Class Mail Cl Other: PUBLIC VERSION UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. In the Matter of CERTAIN CARBURETORS AND Investigation No.337 -TA-1123 PRODUCTS CONTAINING SUCH CARBURETORS COMMISSION OPINION On August 12, 2019, the presiding administrative law judge("AU") issued an initial determination ("ID")(Order No.
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