Certain Self-Anchoring Beverages Container, Inv. 337-TA-1092

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In the Matter of

CERTAIN SELF-ANCHORING BEVERAGE
CONTAINERS

Investigation No. 337-TA-1092

Publication 4984 September 2019

U.S. International Trade Commission

Washington, DC 20436

U.S. International Trade Commission
COMMISSIONERS
David Johanson, Chairman
Irving Williamson, Commissioner
Meredith Broadbent, Commissioner
Rhonda Schmidtlein, Commissioner
Jason Kearns, Commissioner
Address all communications to
Secretary to the Commission
United States International Trade
Commission Washington, DC 20436

U.S. International Trade Commission
Publication 4984 	September 2019
Washington, DC 20436
www.usitc.gov
In the Matter of
CERTAIN SELF-ANCHORING BEVERAGE
CONTAINERS
Investigation No. 337-TA-1092

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN SELF-ANCHORING
BEVERAGE CONTAINERS
Investigation No. 337-TA-1092
NOTICE OF A COMMISSION FINAL DETERMINATION OF VIOLATION OF
SECTION 337; ISSUANCE OF A GENERAL EXCLUSION ORDER; TERMINATION
OF INVESTIGATION
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
SUMMARY: Notice is hereby given that the U.S. International Trade Commission has
determined that there is a violation of section 337 of the Tariff Act of 1930, as amended, in the
above-captioned investigation. The Commission has issued a general exclusion order ("GEO")
barring entry of certain self-anchoring beverage containers that infringe the patent asserted in
this investigation. The Commission has terminated this investigation.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436,
telephone (202) 708-5468. 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,
S.W., Washington, D.C. 20436, telephone (202) 205-2000. General information concerning the
Commission may also be obtained by accessing its Internet server athttps:/lwww.usitc.gov. The
public record for this investigation may be viewed on the Commission's electronic docket (EDIS)
at https:l/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.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on
January 8, 2018, based on a complaint, as amended, filed by Complainants Alfay Designs, Inc.,
of Rahway, New Jersey; Mighty Mug, Inc., of Rahway, New Jersey; and Harry Zimmerman of
Los Angeles, California (collectively, "Complainants"). 83 FR 835-36 (Jan. 8, 2018). The
amended complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337 ("section 337"), in the importation into the United States, the sale for importation,

and the sale within the United States after importation of certain self-anchoring beverage
containers by reason of infringement of certain claims of U.S. Patent Nos. 8,028,850 ("the '850
patent") and 8,757,418 ("the '418 patent"), as well as U.S. Trademark Registration No.
4,191,803 ("the '803 trademark"). Id. The amended complaint further alleged that a domestic
industry in the United States exists or is in the process of being established.
The notice of investigation named eight respondents: Telebrands, Corp. of Fairfield,
New Jersey ("Telebrands"); HIRALIY of Guangzhou, Chin; Chekue, Shenzen Chekue Trading
Co. Ltd. of Shenzhen, China; Tapcet, Guangzhou Tinghui Trade Co., Ltd. of Guangzhou, China;
OTELAS, MB of Klaipeda, Lithuania; and Artiart Limited of Taipei, Taiwan (collectively, the
"Unserved Respondents"); and OUOH, Zhejiang OUOH Houseware Co., Ltd., of Wenzhou,
China ("OUOH"), and DevBattles of Ternopil, Ukraine ("DevBattles"). Id. The notice of
investigation also named the Office of Unfair Import Investigations ("OUII") as a party to the
investigation. Id. The Commission subsequently terminated the investigation with respect to
Telebrands and the Unserved Respondents. See Order No. 8 (Feb. 16, 2018) (unreviewed
Notice (Mar. 15, 2018)); Order No. 10 (Apr. 10, 2018) (unreviewed Notice (May 8, 2018)).
On May 3, 2018, the ALJ issued an initial determination ("ID") (Order No. 11) finding in
default the last two remaining respondents, OUOH and DevBattles (collectively, "the defaulting
respondents"). The Commission determined not to review the ID. Comrn'n Notice (June 1,
2018).
On May 25, 2018, Complainants filed a motion for summary determination that the
defaulting respondents have sold for importation into the United States, imported into the United
States, or sold after importation certain self-anchoring beverage containers that infringe certain
claims of the '850 patent in violation of section 337. The motion also requested a
recommendation for entry of a GEO; but the motion did not request cease and desist orders
directed against either defaulting respondent.
On June 6, 2018, the ALJ issued an ID (Order No. 12), granting Complainants' motion to
withdraw all allegations based on the '803 trademark and the '418 patent. The Commission
determined not to review the ID. Comrn'n Notice (June 25, 2018).
On June 14, 2018, Complainants filed a supplement to their May 25, 2018, motion for
summary determination. On the same day, OUII filed a response in support of Complainants'
motion.
On August 27, 2018, the ALJ issued an ID (Order No. 15) granting Complainants'
motion for summary determination. The ALJ found that the importation requirement is satisfied
as to each defaulting respondent, that the accused products of each defaulting respondent infringe
claim 1 of the '850 patent, and that Complainants satisfied the domestic industry requirement.
No petitions for review of the ID were filed. The ALJ recommended issuance of a GEO and the
imposition of a bond in the amount of 100 percent of the entered value of subject products during
2

the period of Presidential review.
On October 5, 2018, the Commission determined to review in part the ID granting
summary determination of a section 337 violation. 83 FR 51703 (Oct. 12, 2018)
("Notice"). Specifically, the Commission determined to review: (1) the ID's findings
on infringement to correct typographical errors, namely to modify a cross-reference "[f]or
the foregoing reasons" at page 11 of the ID to "[f]or the following reasons" and to modify
a citation to "Mot. Ex. 3 at Attachments 1 (OUOH) and 6 (DevBattles)" at page 11 of the
ID to "Mot.Ex. 3 at Attachments 3 (OUOH) and 6 (DevBattles)", and to strike the
sentence at page 11 of the ID that refers to claim chru1s attached to the Amended
Complaint ("Complainants also attached claim charts to the Amended Complaint ... of
the patent. (Compl Exh. 38 at 13-15 (OUOH), 16-18 (DevBattles).)"); (2) the !D's
findings on importation, and on review, (a) affirm the ID's finding on importation as to
defaulting respondent OUOH on the modified ground that Complainants have established
by substantial, reliable, and probative evidence that the importation requirement of
section 337 is satisfied with respect to defaulting respondent OUOH and (b) take no
position on whether Complainants have established by substantial, reliable, and probative
evidence the importation requirement as to defaulting respondent DevBattles; and (3) the
ID's findings on the economic prong of the domestic industry, and on review, affirm the
ID's finding of the existence of a domestic industry under subsection 337(a)(3)(B), and to
take no position on whether a domestic industry exists under subsections 337(a)(3)(A) or
(C). Accordingly, the Commission found a violation of section 337 as to defaulting
respondent OUOH by substantial, reliable, and probative evidence.
In its Notice, the Commission requested written submissions on the issues ofremedy,
the public interest, and bonding. 83 FR 51703 (Oct. 12, 2018). Complainants and OUII timely
filed initial written submissions, and OUII also filed a reply to Complainants' submission. No
other submissions were filed in response to the Commission Notice.
Having reviewed the submissions filed in response to the Commission Notice and the
evidentiary record, the Commission has determined that the appropriate form of relief in this
investigation is a GEO prohibiting the unlicensed importation of certain self-anchoring beverage
containers that infringe claim 1 of the asserted patent. The Commission has further determined
that the public interest factors enwnerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude
issuance of the GEO. Finally, the Commission has determined that a bond in the amount of one
hundred (100) percent of the entered value is required to permit temporary importation of the
articles in question during the period of Presidential review (19 U.S.C. 1337G)). The
investigation is terminated.
The Commission's order and opinion were delivered to the President and to the United
States Trade Representative on the day of their issuance. The Commission has also notified the
Secretary of the Treasury and Customs and Border Protection of the order.
3

The authority for the Commission's determination is contained in section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in Part 210 of the Commission's Rules of
Practice and Procedure, 19 CFR Part 210.
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: December 18, 2018
4

CERTAIN SELF-ANCHORING BEVERAGE CONTAINERS Iov. No. 337-TA-1092
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served by hand
upon the Commission Investigative Attorney, Monisha Deka, Esq.. , and the following parties as
indicated, on December 18, 2018.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainants Alfay Designs, Inc., Mie:hty Mug,
Inc., and Harry Zimmerman:
Donald R. Dinan, Esq.
GOETZ FITZPATRICK LLP
One Penn Plaza, 31st Floor
New York, NY 10119
D Via Hand Delivery
D Via Express Delivery
[gj Via First Class Mail
D Other:------

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, DC
In the Matter of
SELF-ANCHORING BEVERAGE
CONTAINERS
Investigation No. 337-TA-1092
GENERAL EXCLUSION ORDER
The Commission bas determined that there is a violation of Section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1337, in the unlawful importation, sale for importation, or
sale within the United States after importation of certain self-anchoring beverage containers that
infringe claim 1 of United States Patent No. 8,028,850 ("the '850 patent").
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 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 self-anchoring
beverage containers ("covered products").
The Commission has also determined that the public interest factors enumerated in 19
U.S.C. § 1337(d) do not preclude issuance of a general exclusion order and that the bond during
the Presidential review period shall be in the amount of one hundred (100) percent of the entered
value for all covered products in question.

Accordingly, the Commission hereby ORDERS that:
1. Self-anchoring beverage containers that infringe claim l of the '850 patent
("covered articles") are excluded from entry into the United States for consumption, entry for
consumption from a foreign-trade zone, and withdrawal from a warehouse for consumption for
the remaining term of the patent, except under license from, or with the permission of, the patent
owner or as provided by law.
2. Notwithstanding paragraph l of this Order, the aforesaid covered articles are
entitled to entry into the United States for consumption, entry for consumption from a foreign
trade zone, and withdrawal from a warehouse for consumption, under bond in the amount of one
hundred (l 00) percent of the entered value of the products pursuant to subsection G) of Section
337 (19 U.S.C. § 13370)), and the Presidential Memorandum for the United States Trade
Representative of July 21, 2005 (70 Fed Reg. 43251), from the day after this Order is received by
the United States Trade Representative and until such time as the United States Trade
Representative notifies the Commission that this Order is approved or disapproved but, in any
event, not later than sixty (60) days after the date of receipt of this Order. All entries of covered
articles made pursuant to this paragraph are to be reported to U.S. Customs and Border
Protection ("CBP"), in advance of the date of the entry, pursuant to procedures CBP establishes.
3. At the discretion of CBP and pursuant to procedures it establishes, persons
seeking to import self-anchoring beverage containers that are potentially subject to this Order
may be required to certify that they are familiar with the terms of this Order, that they have made
appropriate inquiry, and thereupon state that, to the best of their knowledge and belief, the
products being imported are not excluded from entry under paragraph 1 of this Order. At its
discretion, CBP may require persons who have provided the certification described in this
2

paragraph to furnish such records or analyses as are necessary to substantiate the certification.
4. In accordance with 19 U.S.C. § 1337(1), the provisions ofthis 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 ofthe Government.
5. The Commission may modify this Order in accordance with the procedures
described in section 210.76 ofthe Commission's Rules ofPractice and Procedure (19 C.F.R. §
210.76).
6. The Commission Secretary shall serve copies ofthis Order upon each party of
record in this investigation and upon CBP.
7. Notice of this Order shall be published in the Federal Register.
By order ofthe Commission.
Lisa R. Barton
Secretary to the Commission
Issued: December 18, 2018
3

CERTAIN SELF-ANCHORING BEVERAGE CONTAINERS 	Inv. No. 337-TA-1092
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached GENERAL EXCLUSION ORDER
has been served by hand upon the Commission Investigative Attorney, Monisha Deka, Esq..,
and the following parties as indicated, on December 19, 2018.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainants Alfay Designs, Inc., Mighty Mug,
Inc., and Harry Zimmerman:
Donald R. Dinan, Esq.
GOETZ FITZPATRICK LLP
One Penn Plaza, 31st Floor
New York, NY 10119
☐ Via Hand Delivery
☒ Via Express Delivery
☐ Via First Class Mail
☐ Other:_____________
Respondents:
OUOH
Zhejiang OUOH Houseware Co., Ltd.
No. 1278-1308 Wanxiang Road
Wanquan Town
Wenzhou
Zhejiang Province, 325204 China
☐ Via Hand Delivery
☒ Via Express Delivery
☐ Via First Class Mail
☐ Other:_____________
DevBattles
3rd Floor,
Street Cardinala Josepha Slipogo, 7
Ternopil, Ukraine, 46000
☐ Via Hand Delivery
☒ Via Express Delivery
☐ Via First Class Mail
☐ Other:_____________

PUBLIC VERSION
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington,DC
In the Matter of
CERTAIN SELF-ANCHORING
BEVERAGE CONTAINERS
Investigation No.337-TA-1092
COMMISSION OPINION
On August 27,2018,the presiding administrative law judge("AU")issued an initial
determination ("ID")(Order No. 15)granting summary determination that two respondents that
were found in default have violated section 337 ofthe Tariff Act of 1930, as amended, 19 U.S.C.
§ 1337. The Commission determined to review the ID in part. 83 Fed Reg. 51703 (Oct. 12,
2018). Specifically, the Commission determined to review: (1)the ID's findings on
infringement to correct typographical errors and to strike a sentence;(2)the ID's findings on
importation, and on review, affirm, on modified grounds,the ID's finding on importation as to
one ofthe defaulting respondents and take no position as to the second defaulting respondent;
and (3)the ID's findings on the economic prong ofthe domestic industry, and on review, affirm
the ID's finding ofthe existence of a domestic industry under subsection 337(a)(3)(B), and to
take no position on whether a domestic industry exists under subsections 337(a)(3)(A) or(C).
83 Fed Reg. at 51704. Accordingly, the Commission found a violation of section 337 as to one
defaulting respondent, but not as to the second defaulting respondent. The Commission
requested briefing on the issues ofremedy,the public interest, and bonding.
1

PUBLIC VERSION
Having considered the record ofthis investigation, including the ID and the various
submissions, the Commission has determined to issue a general exclusion order.
I. BACKGROUND
A. Procedural History
The Commission instituted this investigation on January 8,2018, based on a complaint,
as amended, filed by Complainants Alfay Designs, Inc., of Rahway,New Jersey; Mighty Mug,
Inc., of Rahway,New Jersey; and Harry Zimmerman of Los Angeles, California (collectively,
"Complainants"). 83 Fed. Reg. 835-36 (Jan. 8, 2018). The amended complaint alleged
violations of section 337 ofthe Tariff Act of 1930, as amended, 19 U.S.C. § 1337("section
337"), in the importation into the United States, the sale for importation, and the sale within the
United States after importation of certain self-anchoring beverage containers by reason of
infringement of certain claims of U.S. Patent Nos. 8,028,850("the '850 patent") and 8,757,418
("the '418 patent"), as well as U.S. Trademark Registration No. 4,191,803 ("the '803
trademark"). Id. The amended complaint further alleged that a domestic industry in the United
States exists or is in the process of being established.
The notice ofinvestigation named eight respondents: Telebrands, Corp. of Fairfield,
New Jersey ("Telebrands"); HIRALIY of Guangzhou, Chin; Chekue, Shenzen Chekue Trading
Co. Ltd. of Shenzhen, China; Tapcet, Guangzhou Tinghui Trade Co., Ltd. of Guangzhou, China;
OTELAS, MB of Klaipeda, Lithuania; and Artiart Limited of Taipei, Taiwan (collectively, the
"Unserved Respondents"); and OUOH,Zhejiang OUOH Houseware Co., Ltd., of Wenzhou,
China("OUOH"),and DevBattles of Ternopil, Ukraine ("DevBattles"). Id. The notice of
investigation also named the Office of Unfair Import Investigations("OUII")as a party to the
investigation. Id. The Commission subsequently terminated the investigation with respect to
2

PUBLIC VERSION
Telebrands and the Unserved Respondents. See Order No.8(Feb. 16, 2018), unreviewed Notice
(Mar. 15, 2018)); Order No. 10(Apr. 10, 2018), unreviewed Notice(May 8, 2018)).
On May 3,2018, the AUJ issued an ID (Order No. 11)finding in default the two
remaining respondents, OUOH and DevBattles(collectively,"the defaulting respondents"). The
Commission determined not to review the ID. Comm'n Notice (June 1, 2018).
On May 25,2018, Complainants filed a motion for summary determination of violation
of section 337.1 The motion also requested a recommendation for entry of a general exclusion
order.
On June 6, 2018,the All issued an ID (Order No. 12), granting Complainants' motion to
withdraw all allegations based on the '803 trademark and the '418 patent. The Commission
determined not to review the ID. Comm'n Notice (June 25, 2018).
On June 14, 2018, Complainants filed a supplement("Supplement")to their May 25,
2018, motion for summary determination. On the same day, OUII filed a response in support of
Complainants' motion.
On August 27,2018, the All issued an ID (Order No. 15) granting Complainants'
motion for summary determination. The All found the importation requirement to be satisfied
as to each defaulting respondent, found that the accused products of each defaulting respondent
infringe claim 1 ofthe '850 patent, and found that Complainants satisfied the domestic industry
requirement. No petitions for review of the ID were filed. The All recommended issuance of a
general exclusion order.
1 Complainants' Motion for Summary Determination Under Section 337 of the Tariff Act
of 1930, as Amended; Memorandum of Law in Support of Complainants' Motion for Summary
Determination Under Section 337 ofthe Tariff Act of 1930, as Amended.
3

PUBLIC VERSION
On October 5,2018, the Commission determined to review in part the ID granting
summary determination of a section 337 violation. 83 Fed. Reg. at 51704. Specifically, the
Commission determined to review: (1)the ID's findings on infringement to correct
typographical errors and to strike the sentence at page 11 ofthe ID that refers to claim charts
attached to the Amended Complaint;(2)the ID's findings on importation, and on review,
(a)affirm the ID's finding on importation as to defaulting respondent OUOH on the modified
ground that Complainants have established by substantial, reliable, and probative evidence that
the importation requirement of section 337 is satisfied with respect to that respondent and
(b)take no position on whether Complainants have established by substantial, reliable, and
probative evidence the importation requirement as to defaulting respondent DevBattles; and (3)
the ID's findings on the economic prong ofthe domestic industry, and on review, affirm the ID's
finding ofthe existence of a domestic industry under subsection 337(a)(3)(B), and take no
position on whether a domestic industry exists under subsections 337(a)(3)(A) or(C). Id.
Accordingly, the Commission found a violation of section 337 as to defaulting respondent
OUOH by substantial, reliable, and probative evidence.2
The Commission invited the parties to the investigation, interested government agencies,
and any other interested parties to file written submissions on the issues ofremedy, the public
interest, and bonding.
2 Although the Commission does not find a violation of section 337 as to defaulting
respondent DevBattles by substantial, reliable, and probative evidence, it nonetheless finds a
violation of section 337 as to DevBattles based on the presumption that the facts alleged in the
complaint are true. See 19 U.S.C. § 1337(g)(1)("[T]he Commission shall presume the facts
alleged in the complaint to be true.").
4

PUBLIC VERSION
On October 22, 2018, Complainants and OUII each filed initial written submissions in
response to the Commission's notice.3 On October 26,2018, OUII filed a reply to
Complainants' submission.4
B. The Asserted Patent
The '850 patent,"Self-Anchoring Beverage Container with Directional Release and
Attachment Capability," issued on October 4, 2011. The '850 patent generally relates to
beverage containers for holding liquids or semi-liquid contents.'850 patent at 1:8-9. More
particularly,"the invention concerns the prevention of beverage container tipping and
consequent content spillage." Id. at 1:10-11. In the "Background ofthe Invention" section, the
patent states that while it is known to use a suction device to secure a container to a surface and
stabilize the container against tipping, such devices require the user to take steps to engage the
device. See Id. at 1:32-39. The invention is directed to an improved beverage container that
resists tipping, and preferably "does not require a user to perform any step or operation apart
from normal manipulation ofthe container....[The anti-tipping feature should preferably
operate in 'stealth mode' such that the user is not even aware that such feature is present when
the container is used in normal fashion." Id. at 1:40-50.
Complainants allege that the defaulting respondents' accused products infringe claim 1 of
the '850 patent. Independent claim 1 reads as follows:
3 Complainants' Submission on Remedy,Public Interest and Bonding ("Complainants'
Br.); Response ofthe Office of Unfair Import Investigations to the Commission's Request for
Written Submissions Regarding Remedy, Bonding, and the Public Interest("OUII Br.").
4 Reply ofthe Office of Unfair Import Investigations to the Responses to the
Commission's Request for Written Submissions Regarding Remedy, Bonding, and the Public
Interest("OUII Reply").
5

PUBLIC VERSION
1. A self-anchoring beverage container with directional release and attachment
capability, comprising:
a flexible nonporous base member;
said base member having a lower surface that is configured to
engage an external reference surface and form a substantially
airtight peripheral seal therewith that defines a controlled pressure
zone, said controlled pressure zone being a region located between
said base member and said reference surface that is surrounded by
said peripheral seal;
a receptacle assembly mounted to said base member;
said receptacle assembly comprising a beverage holding chamber
having a closed bottom, a sidewall portion, and a top;
said receptacle assembly further comprising a communication
channel arranged to provide air communication between said
controlled pressure zone and an area of ambient air pressure;
said receptacle assembly further comprising a pressure control
device, said pressure control device having a closed position
wherein said pressure control device blocks and closes said
communication channel to seal said controlled pressure zone and an
open position wherein said pressure control device separates from
and opens said communication channel to vent said controlled
pressure zone to ambient pressure;
said receptacle assembly further comprising a grasping portion that
is arranged to be grasped by a user during normal lifting of said
beverage container from said reference surface;
said pressure control device and said grasping portion being part of
a common rigid structure so that said grasping portion cannot move
without causing simultaneous movement of said pressure control
device, said rigid structure producing simultaneous actuation ofsaid
pressure control device from said closed position to open said
communication channel when a user grasps said grasping portion
and initiates said normal lifting ofsaid beverage container from said
reference surface;
whereby said beverage container is self-biased to remain affixed to
said reference surface when said communication channel is closed
due to said controlled pressure zone generating a partial vacuum
when an attempt is made to move said beverage container without
actuating said pressure control device; and
whereby said self-biasing will be released surreptitiously and said
beverage container will lift away from said reference surface
without discernible resistance when said pressure control device is
6

PUBLIC VERSION
actuated to vent said controlled pressure zone due to a user grasping
said grasping portion during normal lifting of said beverage
container.
II. STANDARD ON REVIEW
Once the Commission determines to review an ID, its review is conducted de novo.
Certain Polyethylene Terephthalate Yarn and Products Containing Same,Inv. No. 337-TA-457,
USITC Pub. No. 3550(Oct. 2002), Comm'n Op. at 9(June 18, 2002). Upon eview,"the
Commission has 'all the powers which it would have in making the initial determination,' except
where the issues are limited on notice or by rule." Certain Flash Memory Circuits and Products
Containing Same,Inv. No. 337-TA-382, USITC Pub. No. 3046(July 1997), Comm'n Op. at 9-
10(quoting Certain Acid-Washed Denim Garments and Accessories, Inv. No. 337- TA-324,
USITC Pub. No. 2576(Nov. 1992), Comm'n Op. at 5(Aug. 28, 1992)). Commission practice in
this regard is consistent with the Administrative Procedure Act. See 5 U.S.C. § 557(b).
Upon review,"the Commission may affirm, reverse, modify, set aside or remand for
further proceedings, in whole or in part, the initial determination ofthe administrative law
judge." 19 C.F.R. § 210.45(c)."The Commission also may make any findings or conclusions that
in its judgment are proper based on the record in the proceeding." Id. This rule reflects the fact
that the Commission is not an appellate court, but is the body responsible for making the final
agency decision.
III. DISCUSSION
A. Issues Under Review
1. Infringement
The ID found that Complainants established by substantial, reliable, and probative
evidence that the accused products ofthe defaulting respondents infringe claim 1 ofthe '850
patent. ID at 11-12. The ID's infringement findings were supported by the infringement claim
7

PUBLIC VERSION
charts and accompanying element-by-element analysis(Mot. Ex. 3 at Attachments 3(claim chart
for OUOH)and 6(claim chart for DevBattles); Marcin Decl.). However,the ID appeared to have
inadvertently cross-referenced the wrong portion of its infringement discussion and cited the
domestic industry analysis of Complainants' expert(Marcin)instead ofthe expert's infringement
analysis for OUOH.See ID at 11 (referencing "foregoing reasons" and citing Mot. Ex. 3 at
Attachment 1 (OUOH)). The ID also referenced certain claim charts, attached to Complainants'
amended complaint, which were inconsistent with the more detailed claim charts included with
Complainants' motion for summary determination. ID at 11 ("Complainants also attached claim
charts to the Amended Complaint... ofthe patent.").
Accordingly, the Commission determined to review the ID's findings on infringement to
correct typographical errors, namely,to modify a cross-reference "[f]or the foregoing reasons" at
page 11 ofthe ID to "[for the following reasons" and to modify a citation to "Mot. Ex. 3 at
Attachments 1 (OUOH)and 6(DevBattles)" at page 11 ofthe ID to "Mot. Ex. 3 at Attachments
3(OUOH)and 6(DevBattles)", and to strike the sentence at page 11 ofthe ID that refers to
claim charts attached to the Amended Complaint("Complainants also attached claim charts to
the Amended Complaint... of the patent.(Compl Exh. 38 at 13-15(OUOH), 16-18
(DevBattles).)"). The Commission affirmed the ID's infringement findings, as modified.
2. Importation
The ID found that Complainants met the importation requirement with respect to each
defaulting respondent. ID at 8-9. However,the ID does not specifically address whether or not
importation has been established by substantial, reliable, and probative evidence with respect to
one or more defaulting respondents. The ID states that —
[i]n the [c]omplaint, Complainants identified specific instances of
importation by each of the [d]efaulting [r]espondents. (See Am.
8

PUBLIC VERSION
Compl. at ¶ 48, Compl. Ex. 35 (OUOH); If 49, Compl. Ex. 36
(DevBattles); see also Mot. Supp. at 1-2; Supp. Ex. 9; Mot. Ex.4 at
Attachments 16 (OUOH), 17 (DevBattles).) Because the
Commission presumes the facts alleged in the complaint to be true,
Complainants have satisfied their burden of demonstrating
importation. Additionally, the undersigned is not aware of any
evidence to the contrary with respect to importation by the
[d]efaulting Nespondents.
ID at 8-9.
The record evidence on importation includes shipping documentation for purchases of an
accused product from each defaulting respondent and photographs ofthe received accused
products and packaging. See Am. Compl. ¶¶ 48,49; Compl. Exs. 35(OUOH),36(DevBattles);
see also Mot. Supp. at 1-2; Supp. Ex. 9; Mot. Ex. 4, Atts. 16(OUOH), 17(DevBattles). The
Commission found the evidence of importation by defaulting respondent OUOH substantial,
reliable, and probative. However, as to defaulting respondent DevBattles, Complainants concede
that the packaging in which DevBattles' accused product was shipped to Complainants was not
marked with a country of origin. Mot. Supp. at 1.
Accordingly, the Commission determined to review the ID's findings on importation, and
on review,(1)affirmed the ID's finding on importation as to defaulting respondent OUOH on
the modified ground that Complainants have established by substantial, reliable, and probative
evidence that the importation requirement of section 337 is satisfied with respect to defaulting
respondent OUOH and (2)took no position on whether Complainants had established by
substantial, reliable, and probative evidence the importation requirement as to defaulting
respondent DevBattles. 83 Fed. Reg. at 51704.
3. Economic Prong of the Domestic Industry
The ID found that Complainants met the economic prong ofthe domestic industry
requirement under 19 U.S.C. § 1337(a)(3)(A) and(B)(viz., significant investment in plant and
9

PUBLIC VERSION
equipment and significant employment of labor or capital, respectively), and that they presented
substantial, reliable, and probative evidence supporting that finding. ID at 20-23. The ID further
found it unnecessary to decide whether Complainants met the economic prong under section
337(a)(3)(C)(viz., substantial investment in its exploitation including engineering, research and
development, or licensing) or whether they are in the process of establishing a domestic industry.
ID at 23 n.14.
As to investments in plant and equipment,the ID found that Complainants maintain a
plant in Rahway, New Jersey, at a cost of$10,000 per month, and invested $212,000 in
equipment housed in that plant, which equipment is used in the research and development,
design, and manufacturing of prototypes of Complainants' Mighty Mug products. ID at 21
(citing Mot Ex.6("Smaldone Decl.")¶¶ 7-9; Mot Ex. 7("2nd Smaldone Decl.") vf 7-9); Mot.
Suppl. at 3; Supp. Ex. 10 ¶ 5). The ID found that, given that the facility is also used in the
distribution and sale of other products, Complainants reasonably allocated these plant and
equipment amounts to the Mighty Mug products on the basis of percentage of sales(70 percent
to Mighty Mug and 30 percent to other products). ID at 21 n.4 (citing Mot. Suppl. at 2; Supp.
Ex. 10 at If 3). The ID found that Complainants had invested an additional $5200 in certain 3D
printing equipment dedicated solely to products covered by the '850 patent. ID at 21 (citing Mot.
Supp. at 3; Supp. Ex. 10 at 115).
Additionally, the ID made the following findings regarding the activities at the Rahway
plant:
• [A]l1 activity concerning the design, development, finishing,
manufacture, and distribution ofthe Mighty Mug products
occurs at the Rahway facility." ID at 21 (citing Mot. Suppl. at
4; Supp. Ex. 10 ig 7)."The only activity done overseas is the
plastic molding ofthe mug." ID at 21 n.5 (citing Mot. Suppl.
at 4; Supp. Ex. 10 at ¶ 7).
10

PUBLIC VERSION
• [API repackaging, applying of shipping bar codes, graphic
designs, customer service requirements, and warranty work
for the Mighty Mug products are performed at the Rahway
facility." ID at 21 (citing Smaldone Decl. IR 12; 2"Smaldone
Dec!. ¶ 12).
• Complainants also 'price tickets' [i.e., applies retail price
stickers] for certain customers, as well as handle all shipping,
paperwork, bills oflading, present the combination for retail
customers, and screen engrave logos on the self-anchoring
beverage containers at the Rahway facility." ID at 21-22 &
n.6 (citing Smaldone Decl. ¶ 13; 2nd Smaldone Decl. ¶ 13).
• [A]ll distribution of catalogs, samples, sales brochures,
advertising in trade publications, website and internet
marketing, and sales ofthe self-anchoring beverage
containers are performed at the Rahway facility." ID at 22
(citing Mot. Memo at 14; Complainants' proposed FF in
support of Mot. ¶ 33).
As to employment oflabor and capital, the ID notes that Complainants' investment of
approximately $10,000 a month in rent for the Rahway plant and at least $212,000 in equipment
"constitute a significant employment of capital" as well as investment in plant and equipment. ID
at 22 n. 8(citing Smaldone Decl ¶ 8; 2"Smaldone Decl. ¶ 8; Supp. Ex. 10 If 5). The ID includes
a summary table of Complainants' investments in the design, development, finishing and
customer support ofthe Mighty Mug products, omitting investments in a new facility purchased
by Complainants since the filing ofthe complaint. ID at 22-23 & n.9. The ID found it
unnecessary to consider investments in the new facility because "the investments in the existing
facility are sufficient to show that the domestic industry requirement is satisfied." Id. The ID's
summary table allocates 70 percent ofthe rent($7,000(monthly)) and equipment($148,400)to
practice ofthe '850 patent(based on sales, as discussed above). The ID's summary table
allocates the entire $5200 investment in 3D printing R&D equipment to the '850 patent(as
discussed above). The ID's summary table includes $350,000 identified as R&D salaries, of
11

PUBLIC VERSION
which 70 percent($245,000) is allocated to practice ofthe '850 patent. ID at 23. The amount
for R&D salaries is based on a salary of$35,000 for each of 10 employees, who spend 70% of
their working time on the Mighty Mug products.5 ID at 22-23 (citing Smaldone Decl. at ¶J 18-
20; 2nd Smaldone Decl. at ¶¶ 18-20). The R&D salaries estimate is conservative because it uses
an employee salary of$35,000, which is the lowest salary in the applicable salary range of
$35,000 to $100,000. ID at 22(citing Smaldone Decl. at ¶ 20; 2nd Smaldone Decl. at ¶ 20); 23
n.11.
The Commission found the record evidence supported the ID's findings on the amounts
ofinvestments in employment of labor and capital allocated to the '850 patent. Although the ID
finds such amounts to be significant, it does not detail its reasoning on this point.6 Having
reviewed the record, the Commission found such investments to be significant. As set forth
above,141 activity concerning the design, development, finishing, manufacture, and
distribution ofthe Mighty Mug products occurs at the Rahway facility." ID at 21 (citing Mot.
Suppl. at 4; Supp. Ex. 10 ¶ 7). "The only activity done overseas is the plastic molding ofthe
mug."ID at 21 n.5 (citing Mot. Suppl. at 4; Supp. Ex. 10 at 4g7). The evidence of record
5 The ID notes that "Complainants are not relying solely on marketing and sales
expenditures to satisfy the economic prong. Complainants have provided evidence of significant
expenditures in its employment of labor in other qualifying activities, such as research, product
development, and customer service, as well as capital expenditures in equipment used for the
design ofthe Mighty Mug products." ID at 22 n.7.
6 See, e.g., "Complainants have made significant investments in plant and equipment"(ID
at 21),"[t]hese .. investments constitute a significant employment of capital"(ID at 22 n. 8),
"there is a significant employment of labor and capital"(ID at 22). The concluding paragraph of
the economic prong analysis evaluates the allocated amounts credited toward the '850 patent
using the "substantial investment" standard applicable to 337(a)(3)(C). ID at 23 (citing Certain
Stringed Musical Instruments and Components Thereof Inv. No. 337-TA-586, Comm'n Op. at
25-26 May 16, 2008)("[T]he requirement for showing the existence of a domestic industry will
depend on the industry in question, and the complainant's relative size.")).
12

PUBLIC VERSION
indicates value added in the United States is at least 60 percent. See Mot Ex.6("Smaldone
Decl.")¶ 7.
Furthermore, the evidence of record demonstrates that the amounts ofinvestments in
labor and capital are about 9 percent ofthe annual sales ofthe domestic industry product. In this
regard, as to the employment oflabor and capital, the ID allocated $245,000(R&D salaries) to
the '850 patent, and recognized the $237,600(specifically, $84,000(annual facility rent),
$148,400(equipment), and $5,200(3D printing R&D equipment)) as employment of capital.
With regard to sales ofthe domestic industry product, the President of Mighty Mug,Inc. attests
that lainnual sales ofthe Mighty Mug were slightly in excess of$5,000,000.00 per year" and
"have since declined to below $2,000,000.00 per year." Suppl. Ex. 10 ¶ 8. In the supplement to
their motion, complainants assert that "[s]ales in the industry, as defined by the '850 Patent, are
approximately $5,000,000-$6,000,000 per year." Mot. Suppl. at 6. Using the mid-point ofthe
annual sales range (i.e., $5.5 million per year), the Commission estimates the labor and capital
investment to be about 9 percent ofthe annual sales ofthe domestic industry product(($245,000
+ $237,600)/$5,500,000).
Accordingly, the Commission determined to review the ID's findings on the economic
prong ofthe domestic industry, and on review, affirmed the ID's finding ofthe existence of a
domestic industry under subsection 337(a)(3)(B), and took no position on whether a domestic
industry exists under subsections 337(a)(3)(A) or (C).
13

PUBLIC VERSION
B. Remedy7
The AU recommended that a general exclusion order issue in the event that the
Commission finds a violation of section 337. ID at 24-27. The ID found that any limited
exclusion order would likely be subject to immediate evasion. ID at 25-26. The ID also found
evidence ofa widespread pattern of violation and that identifying the source ofthe infringing
products is difficult. ID at 26. Complainants and OUII agree with the All's recommendation to
issue a general exclusion order. Complainants' Br. at 2-4; OUII Br. at 4-9; OUII Reply at 1.
Section 337(g)(2) provides:
In addition to the authority ofthe Commission to issue a
general exclusion from entry ofarticles when a respondent
appears to contest an investigation concerning a violation of
the provisions of this section, a general exclusion from entry
of articles, regardless ofthe source or importer ofthe articles,
may be issued if—
(A) no person appears to contest an investigation
concerning a violation ofthe provisions ofthis
section,
(B) such a violation is established by substantial, reliable,
and probative evidence, and
(C) the requirements of subsection (d)(2)ofthis section
are met.
19 U.S.C. § 1337(g)(2). Section 337(d)(2)further provides:
The authority ofthe Commission to order an exclusion from
entry ofarticles shall be limited to persons determined by the
Commission to be violating this section unless the
Commission determines that—
In the review notice, the Commission requested briefing on the issuance of cease and
desist orders to the extent Complainants sought such orders against the defaulting respondents.
83 Fed. Reg. at 51704-05. In their submission, Complainants state that they do not request cease
and desist orders. Complainants' Br. at 1 n.1.
14

PUBLIC VERSION
(A)a general exclusion from entry of articles is
necessary to prevent circumvention of an
exclusion order limited to products of named
persons; or
(B)there is a pattern of violation of this section and it
is difficult to identify the source ofinfringing
products.
19 U.S.C. § 1337(d)(2).
Respondent Telebrands appeared and was terminated from this investigation based
on a settlement agreement. See Order No. 8(Feb. 16, 2018)(unreviewed Notice(Mar. 15,
2018). In cases like this one, where a respondent appears and was terminated based on a
settlement agreement, section 337(g)(2) does not apply; however, when a violation is
established based on reliable, probative, and substantial evidence, the Commission may
issue a general exclusion order under section 337(d)(2). See, e.g., Certain Sildenafil or Any
Pharmaceutically Acceptable Salt Thereof Such as Sildenafil Citrate, and Products
Containing Same, Inv. No. 337-TA-489, Comm'n Op. at 3-5 (Feb. 6, 2004). In this case, the
Commission found a violation of section 337 as to defaulting respondent OUOH supported
by reliable, probative, and substantial evidence.
The Commission concludes that the record evidence supports the ID's findings and
demonstrates that a general exclusion order is necessary to prevent circumvention of a
limited exclusion order. ID at 25-26. In this regard, site visits to the addresses for certain
respondents revealed no evidence ofthe companies at the listed addresses. ID at 25 (citing
Mot. Ex. 8). Evidence of record also demonstrates that the accused products "are shipped
into the country under false and misleading labels—i.e., basically anonymous sales through
online portals." Id. (citing Mot. Ex. 4; Certain Loom Kitsfor Creating Linked Articles, Inv.
No. 337-TA-923, Comm'n Op. at 13(June 26,2015)("[A] large number of anonymous
15

PUBLIC VERSION
infringing sales on the Internet [] supports a likelihood of circumvention under subparagraph
(A)and also supports a determination that it is difficult to identify the source of infringing
products under subparagraph (B).")
The record evidence also supports the ID's findings as to a widespread pattern of
violation and the difficulty of identifying the source ofthe infringing products. ID at 26. In
this regard, the ID found that "in addition to the [d]efaulting [r]espondents, numerous other
sources of infringing self-anchoring beverage containers are available for purchase online."
Id. (citing Mot. Exs.4 & 6; Certain Loom Kitsfor Creating Linked Articles, Inv. No. 337-
TA-923, Comm'n Op. at 14(June 26,2015)("The Commission has found in other
investigations that numerous online sales of infringing imported goods can constitute a
pattern of violation of section 337."). As to the difficulty of identifying the source ofthe
infringing products, the ID noted evidence showing that the products were often sold under
different names and anonymously through online portals. ID at 25-26 (citing Mot. Exs.4 &
8; Certain Loom Kitsfor Creating Linked Articles, Inv. No. 337-TA-923, Comm'n Op. at 13
(June 26, 2015)).
Accordingly, the Commission has determined to adopt the ID's findings as to
circumvention of a limited exclusion order and widespread pattern of unauthorized use(ID at 25-
26)and to issue a general exclusion order with respect to articles covered by claim 1 of the '850
patent.
C. The Public Interest
Sections 337(d)and (g)ofthe Tariff Act of 1930, as amended, direct the Commission to
consider certain public interest factors before issuing a remedy. These public interest factors
include the effect of any remedial order on the "public health and welfare, competitive
16

PUBLIC VERSION
conditions in the United States economy,the production oflike or directly competitive articles in
the United States, and United States consumers." 19 U.S.C. § 1337(d),(g).
Complainants and OUII argue that issuance of a general exclusion order would not be
contrary to the public interest. Complainants' Br. at 4-6; OUII Br. at 11-12; OUII Reply at 1-2.
The Commission did not receive any comments from the public on this issue in response to its
notice ofreview.
The Commission finds no evidence in the record indicating that a general exclusion order
would have an adverse impact on the public health and welfare, competitive conditions in the
United States economy,the production of like or directly competitive articles in the United
States, or United States consumers. The record in this investigation contains no evidence that the
products at issue, self-anchoring beverage containers for consumers to avoid spilling liquids,
raise public health and welfare concerns. Other types ofcompeting beverage containers are
available, and there is evidence in the record showing that Complainants are in the process of
expanding their production facilities. See Mot. Exs. 5 & 7; ID at 22 n.9. Further, the record
indicates that consumers would benefit from the removal of confusing counterfeit products from
the marketplace. See ID at 26; Mot. Exs. 4 & 6,¶ 3, Att. 2.
Accordingly, the Commission finds that the statutory public interest factors do not
preclude issuance of a general exclusion order.
D. Bonding
If the Commission enters an exclusion order, a respondent may continue to import and
sell its products during the 60-day period of Presidential review under bond in an amount
determined by the Commission to be "sufficient to protect the complainant from any injury."
19 U.S.C. § 1337(j)(3); see also 19 C.F.R. § 210.50(a)(3). Ordinarily, the Commission sets the
17

PUBLIC VERSION
bond during the period of Presidential review based on the price differential between the
domestic and the infringing products or based on a reasonable royalty. Certain Ink Cartridges
and Components Thereof Inv. No. 337-TA-946, Comm'n Op. at 18(June 29,2016). Where the
available pricing or royalty information in insufficient, the Commission has set a 100 percent
bond. Id.
The All recommended imposition of a bond of 100 percent during the Presidential
review period. ID at 27-28 (citing Certain Digital Photo Frames and Image Display Devices
and Components Thereof Inv. No. 337-TA-807, USITC Pub. No.4549(July 2015), Comm'n
Op. at 17(Mar. 27, 2013)("The Commission finds that there is little or no evidence in the record
ofthis investigation as to pricing ofthe defaulting respondents' products.... The Commission
has traditionally set a bond of 100 percent ofthe entered value ofthe products under these
circumstances.").
Complainants and OUII agree with the All that the bond should be set at 100 percent.
Complainants' Br. at 6; OUII Br. at 9-11; OUII Reply at 1.
The Commission finds that the defaulting respondents' failure to appear and participate in
the investigation prevents the Commission from determining a price differential or a reasonable
royalty. Accordingly, the Commission has determined to set the bond during the period of
Presidential review at 100 percent ofthe entered value ofthe infringing products.
IV. CONCLUSION
The Commission has determined to affirm, on modified grounds,the ID's finding of a
section 337 violation and to issue a general exclusion order prohibiting the unlicensed
importation of certain self-anchoring beverage containers that infringe claim 1 ofthe '850 patent.
18

PUBLIC VERSION
The Commission adopts all findings and conclusions in the ID that are not inconsistent with this
opinion.
By order ofthe Commission.
Issued: July 24, 2019
0	1	,14;D
Lisa R. Barton
Secretary to the Commission
19

CERTAIN SELF-ANCHORING BEVERAGE CONTAINERS Inv. No.337-TA-1092
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached COMMISSION OPINION has been
served by hand upon the Commission Investigative Attorney, Monisha Deka,Esq.., and the
following parties as indicated, on July 25,2019.
16 D
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
On Behalf of Complainants Alfay Designs,Inc., Mighty Mug,
Inc., and Harry Zimmerman:
Donald R. Dinan, Esq.
GOETZ FITZPATRICK LLP
One Penn Plaza, 31'Floor
New York, NY 10119
Respondents:
OUOH
Zhejiang OUOH Houseware Co., Ltd.
No. 1278-1308 Wanxiang Road
Wanquan Town
Wenzhou
Zhejiang Province, 325204 China
DevBattles
3rd Floor,
Street Cardinala Josepha Slipogo,7
Ternopil, Ukraine,46000
El Via Hand Delivery
El Via Express Delivery
CI Via First Class Mail
1:1 Other:
CI Via Hand Delivery
El Via Express Delivery
CI Via First Class Mail
CI Other:
CI Via Hand Delivery
El Via Express Delivery
CI Via First Class Mail
CI Other:

1
UNITED STATES INTERNATIONAL TRADE COMMISSION
~Washington, D.C.
In the Matter of
Investigation No. 337-TA-1092
CERTAIN SELF-ANCHORING BEVERAGE
CONTAINERS
NOTICE OF A COMMISSION DETERMINATION TO REVIEW IN PART AN INITIAL
DETERMINATION GRANTING SUMMARY DETERMINATION OF A SECTION 337 VIOLATION;
SCHEDULE FOR FILING WRITTEN SUBMISSIONS
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 presiding administrative law judge's initial determination
(Order No. 15) granting summary determination that the defaulting respondents have violated
section 337 in the above-captioned investigation. The Commission requests briefing from the
parties, interested government agencies, and interested persons on the issues of remedy, the
public interest, and bonding.
FOR FURTHERINFORMATION CONTACT: Clara Kuehn, Office of the General Counsel, U.S.
International Trade Commission, 500 E Street, S.W'.,Washington, D.C.20436, telephone (202)
205-3012. 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 EStreet, S.W.,
Washington, D.C.20436, telephone (202) 205-2000. » General information concerning the
Commission may also be obtained by accessing its Internet server at httQs:[[www.usitc.gov.
The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at httQs:gZedis.usi'tc.g0v. Hearing-impaired persons are advised that information on this
matter can be obtained by contacting the Commission's TDDterminal on (202) 205-1810.
SUPPLEMENTARYINFORMATION: The Commission instituted this investigation on January 8,
2018, based on a complaint, as amended, filed by Complainants Alfay Designs, |nc., of Rahway,
New Jersey; Mighty Mug, lnc., of Rahway, New Jersey; and Harry Zimmerman of LosAngeles,
California (collectively, "Complainants”). 83 FR835-36 (Jan. 8, 2018). The amended
complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C.
1337 (“section 337"), in the importation into the United States, the sale for importation, and

the sale within the United States after importation of certain self-anchoring beverage
containers by reason of infringement of certain claims of U.S. Patent Nos. 8,028,850 ("the ’850
patent”) and 8,757,418 ("the '418 patent”), as well as U.S.Trademark Registration No.
4,191,803 ("the ’803 trademark"). Id. The amended complaint further alleged that a
domestic industry in the United States exists or is in the process of being established.
The notice of investigation named eight respondents: Telebrands, Corp. of Fairfield,
New Jersey ("Telebrands"); HIRALIYof Guangzhou, Chin; Chekue, Shenzen Chekue Trading. Co.
Ltd. of Shenzhen, China; Tapcet, Guangzhou Tinghui Trade Co., Ltd. of Guangzhou, China;
OTELAS,MB of Klaipeda, Lithuania; and Artiart Limited of Taipei, Taiwan (collectively, the
"Unserved Respondents"); and OUOH,Zhejiang OUOHHouseware Co., Ltd., of Wenzhou, China
("OUOH"), and DevBattles of Ternopil, Ukraine (“DevBattles"). Id. The notice of
investigation also named the Office of Unfair Import Investigations ("OUII")as a party to the
investigation. Id. The Commission subsequently terminated the investigation with respect
to Telebrands and the Unserved Respondents. See Order No. 8 (Feb. 16, 2018) (unreviewed
Notice (Mar. 15, 2018)); Order No. 10 (Apr. 10, 2018) (unreviewed Notice (May 8, 2018)).
On May 3, 2018, the ALIissued an ID(Order No. 11) finding in default the last two
remaining respondents, OUOHand DevBattIes (collectively, "the defaulting respondents”).
The Commission determined not to review the ID. Comm’n Notice (June 1, 2018).
On May 25, 2018, Complainants filed a motion for summary determination that the
defaulting respondents have sold for importation into the United States, imported into the
United States, or sold after importation certain seIf~anchoringbeverage containers that infringe
certain claims of the ’850 patent in violation of section 337. The motion also requested a
recommendation for entry of a general exclusion order; the motion did not request cease and
desist orders directed against either defaulting respondent.
On June 6, 2018, the ALIissued an ID(Order No.12), granting Complainants’ motion to
withdraw all allegations based on the ’803 trademark and the '418 patent. The Commission
determined not to review the ID. Comm’n Notice (June 25, 2018).
On June 14, 2018, Complainants filed a supplement ("Supplement") to their May 25,
2018, motion for summary determination. On the same day, OUIIfiled a response in support
of Complainants’ motion.
On August 27, 2018, the AU issued the subject IDgranting Complainants’ motion for
summary determination. The AI_I.foundthat the importation requirement is satisfied as to
each defaulting respondent, that the accused products of each defaulting respondent infringe
2

claim 1 of the '850 patent, and that Complainants satisfied the domestic industry requirement.
No petitions for review of the IDwere filed. The AI_Irecommended issuance of a general
exclusion order and the imposition ofa bond in the amount of 100% of the entered value of
subject products during the period of Presidential review.
Having examined the record of this investigation, including the ID,the
Commission has determined to review in part the AL|’sIDgranting summary
determination of a section 337 violation. Specifically,the Commission has determined
to review the following findings: (1) the ID’sfindings on infringement to correct
typographical errors, namely to modify a cross-reference ”[f]or the foregoing reasons"
at page 11 of the IDto "[f]or the following reasons" and to modify a citation to "Mot. Ex.
3 at Attachments 1 (OUOH)and 6 (DevBattles)" at page 11 of the IDto "Mot. Ex.3 at
Attachments 3 (OUOH)and 6 (DevBattIes)", and to strike the sentence at page 11 of the
IDthat refers to claim charts attached to the Amended Complaint ("Complainants also
attached claim charts to the Amended Complaint . . . of the patent. (Compl Exh. 38 at 13
15 (OUOH), 16-18 (DevBattIes).)”); (2) the ID’sfindings on importation, and on review,
(a) affirm the ID’sfinding on importation as to defaulting respondent OUOHon the
modified ground that Complainants have established by substantial, reliable, and
probative evidence that the importation requirement of section 337 is satisfied with
respect to defaulting respondent OUOHand (b) take no position on whether
Complainants have established by substantial, reliable, and probative evidence the
importation requirement as to defaulting respondent DevBattles; and (3) the ID’s
findings on the economic prong of the domestic industry, and on review, affirm the ID’s
finding of the existence of a domestic industry under subsection 337(a)(3)(B),and to
take no position on whether a domestic industry exists under subsections 337(a)(3)(A)
or (C).
In connection with the final disposition of this investigation, the Commission may (1)
issue an order that could result in the exclusion of the subject articles from entry into the
United States, and/or (2) issue a cease and desist order that could result in the respondent
being required to cease and desist from engaging in unfair acts in the importation and sale of
such articles. Accordingly,the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. Ifa party seeks exclusion of an
article from entry into the United States for purposes other than entry for consumption, the
party should so indicate and provide information establishing that activities involvingother
types of entry either are adversely affecting it or likelyto do so. For background, see Certain
Devices for Connecting Computers via Telephone Lines, Inv. No. 337-TA-360, USITCPub. No.
2843, Comm’n Op. at 7-10 (December 1994). In addition, ifa party seeks issuance of any
cease and desist orders, the written submissions should address that request in the context of
recent Commission opinions, including those in Certain Arrowheads with Deploying Blades and
3

Components Thereof and Packaging Therefor, lnv. No. 337-TA-977, Comm'n Op. (Apr. 28, 2017)
and Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and Kits Containing the
Same, lnv. No. 337-TA-959, Comm'n Op. (Feb. 13, 2017). Specifically, if Complainants seek a
cease and desist order against a defaulting respondent, the written submissions should respond
to the following requests: 	,
1. Please identify with citations to the record any information regarding commercially
significant inventory in the United States as to each respondent against whom a
cease and desist order is sought. IfComplainants also rely on other significant
domestic operations that could undercut the remedy provided by an exclusion
order, please identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
2. ln relation to the infringing products, please identify any information in the record,
includingallegations in the pleadings, that addresses the existence of any domestic
inventory, any domestic operations, or any sales-related activity directed at the
United States for each respondent against whom a cease and desist order is sought.
Ifthe Commission contemplates some form of remedy, it must consider the effects of
that remedy upon the public interest. The factors the Commission will consider.include the
effect that an exclusion order and/or cease and desist orders would have on (1) the public
health and welfare, (2) competitive conditions in the U.S.economy, (3) U.S.production of
articles that are like or directly competitive with those that are subject to investigation, and (4)
U.S.consumers. The Commission is therefore interested in receiving written submissions that
address the aforementioned public interest factors in the context of this investigation.
Ifthe Commission orders some form of remedy, the U.S.Trade Representative, as
delegated by the President, has 60 days to approve or disapprove the Commission's action.
See Presidential Memorandum ofJuly 21, 2005, 70 FR43251 (July 26, 2005). During this
period, the subject articles would be entitled to enter the United States under bond, in an
amount determined by the Commission and prescribed by the Secretary of the Treasury. The
Commission is therefore interested in receiving submissions concerning the amount of the
bond that should be imposed if a remedy is ordered.
WRITTENSUBMISSIONS: Parties to the investigation, interested government agencies, and
any other interested parties are encouraged to file written submissions on the issues of
remedy, the public interest, and bonding. Such submissions should address the
recommended determination by the Al_lon remedy and bonding.
4

Complainants and OUIIare also requested to submit proposed remedial orders for the
Commission'sconsideration. Complainants are also requested to state the date that the
asserted patent expires, the HTSUSnumbers under which the accused products are imported,
and to supply the identification information for all known importers of the products at issue in
this investigation. The written submissions and proposed remedial orders must be filed no
later than close of business on October 22, 2018. Replysubmissions must be filed no later
than the close of business on October 29, 2018. No further submissions on these issues will
be permitted unless otherwise ordered by the Commission.
Persons filingwritten submissions must file the original document electronically on or
before the deadlines stated above and submit eight true paper copies to the Officeof the
Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rulesof
Practice and Procedure (19 CFR210.4(f)). Submissions should refer to the investigation
number (lnv. No. 337-TA-1092)in a prominent place on the cover page and/or the first page.
(See Handbook for Electronic FilingProcedures,
https:[/www.usitc.gov/secretarwdocuments/handbook on filing_procedures.pdf). Persons
with questions regarding filing should contact the Secretary at (202) 205-2000.
Any person desiring to submit a document to the Commission in confidence must
request confidentialtreatment unless the information has already been granted such treatment
during the proceedings. Allsuch requests should be directed to the Secretary to the
Commission and must include a full statement of the reasons why the Commission should grant
such treatment. See 19 CFR201.6. Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. A redacted non-confidential
version of the document must also be filed simultaneously with any confidential filing. All
information, including confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commissionfor purposes of this investigation
may be disclosed to and used: (i) by the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in
internal investigations,‘audits, reviews, and evaluations relating to the programs, personnel,
and operations of the Commission including under 5 U.S.C.Appendix 3; or (ii) by U.S.
government employees and contract personnell, solely for cybersecurity purposes. Allnon
confidential written submissions will be available for public inspection at the Office of the
Secretary and on EDIS.
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 CFRPart 210.
1 Allcontract personnel will sign appropriate nondisclosure agreements.
5

Byorder of the Commission.
Issued: October 5, 2018
Lisa R. Barton
Secretary to the Commission
6

CERTAIN SELF-ANCHORING BEVERAGE CONTAINERS 	Inv. N0. 337-TA-1092
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been sewed by hand
upon the Commission Investigative Attorney, Monisha Deka, Esq.., and the following parties as
indicated, on October 5, 2018.
K .
1 	r;Z@
Lisa R. Barton, Secretary
U.S. lntemational Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainants Alfav Designs. Inc., Mighty Mug,
Inc., and Harry Zimmerman:
Donald R. Dinan, Esq.
GOETZ FITZPATRICK LLP
One Penn Plaza, 31“ Floor
New York, NY 10119
III Via Hand Delivery
U Via Express Delivery
Via First Class Mail
El Other: '

PUBLIC VERSION
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN SELF-ANCHORING
BEVERAGE CONTAINERS
Inv. No. 337-TA-1092
ORDER NO. 15: INITIAL DETERMINATION GRANTING COMPLAINANTS'
MOTION FOR SUMMARY DETERMINATION UNDER SECTION
337 OF THE TARIFF ACT OF 1930
(August 27, 2018)

TABLE OF CONTENTS
I. INTRODUCTION 1
A. Procedural History 1
B. The Private Parties 3
1. Complainants 3
a) Alfay Designs, Inc. 3
b) Mighty Mug, Inc. 3
c) Harry Zimmerman 3
2. The Defaulting Respondents 3
a) DevBattles. 3
b) OUOH 4
C. The Asserted Patent — U.S. Patent No. 8,028,850 4
D. The Products at Issue 5
II. LEGAL STANDARDS 5
A. Summary Determination 5
B. Default 6
C. Infringement 6
D. Domestic Industry 6
1. Economic Prong 7
2. Technical Prong 7
III. IMPORTATION 8
IV. JURISDICTION 9
A. Subject Matter Jurisdiction 9
B. Personal Jurisdiction 9
C. In Rem Jurisdiction 10
V. VALIDITY 10
VI. U.S. PATENT NO. 8,028,850 10
A. Claim Construction 10
B. Infringement 11
C. Technical Prong 12
VII. DOMESTIC INDUSTRY — ECONOMIC PRONG 20
VIII. REMEDY AND BONDING 24
A. General Exclusion Order 24
1. Circumvention of a Limited Exclusion Order 25
2. Widespread Pattern of Unauthorized Use 26
3. Conclusion 27
B. Bonding 27
i

.28
IX. INITIAL DETERMINATION
ii
.
·

PUBLIC VERSION
I. INTRODUCTION
On May 25, 2018, Complainants Alfay Design, Inc., Mighty Mug, Inc., and Harry
Zimmerman (collectively, "Complainants") filed (1092-008) a motion for summary determination,
seeking a finding of a violation of section 337 and requesting entry of a general exclusion order
("GEO"). On June 14, 2018, Complainants filed a supplement ("Supplement") to their motion.
The Commission Investigative Staff ("Staff') filed a response in support of the motion.
A. Procedural History
On October 31, 2017, Complainants filed a Complaint alleging a violation of section 337
of the Tariff Act of 1930. 83 Fed. Reg. 835-836 (Jan. 8, 2018). An Amended Complaint was filed
on December 1, 2017. Id. Supplements to the Amended Complaint were filed on December 4, 8,
19, and 22, 2017. Id. The Amended Complaint alleges violations of section 337 in the importation
and sale of certain self-anchoring beverage containers by reason of infringement of certain claims
of U.S. Patent Nos. 8,028,850 (the "850 patent") and 8,757,418 (the "418 patent"), and U.S.
Trademark Registration No. 4,191,803 (the '803 trademark").' Id.
On January 8, 2018, the Commission determined to institute this Investigation. Id.
Specifically, the Commission instituted this Investigation to determine:
Whether there is a violation of subsection (a)(1)(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 self-
anchoring beverage containers by reason of infringement of one or
more of claim 1 of the '850 patent and claim 1 of the '418 patent;
and whether an industry in the United States exists or is in the
process of being established as required by subsection (a)(2) of
section 337; and
Complainants withdrew their claims related to the '803 trademark and the '418 patent. (See Order No. 12 (June 6,
2018); see also Notice of Comm'n Determination Not to Review an Initial Determination Granting Complainants'
Mot. to Withdraw all Claims Related to U.S. Trademark No. 4,191,803 and U.S. Patent No. 8,757,418 (June 25,
2018).)

[W]hether there is a violation of subsection (a)(1)(C) 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 self-anchoring beverage containers by reason of
infringement of the '803 trademark; and whether an industry in the
United States exists or is in the process of being established as
required by subsection (a)(2) of section 337.
Id.
The Notice of Investigation named eight respondents: Telebrands, Corp.; HIRALIY;
Chekue; Tapcet; OUOH; DevBattles; OTELAS; and Artiart Limited. Id. The Office of Unfair
Import Investigations was also named as a party to the Investigation. Id.
During the course of this Investigation, Complainants settled with Respondent
Telebrands, Corp. and withdrew the Amended Complaint as to Respondents HIRALIY, Chekue,
Tapcet, OTELAS, and Artiart. (See Order Nos. 8 and 10; see also Notice of a Comm'n
Determination Granting a Joint Mot. to Terminate the Investigation as to Respondent Telebrands
Corp. Based on a Settlement Agreement (Mar. 16, 2018); Notice of Comm'n Determination Not
to Review an Initial Determination Granting a Mot. to Withdraw the Compl. as to Certain
Unserved Respondents (May 8, 2018).) The last two remaining Respondents — DevBattles and
OUOH (collectively, the "Defaulting Respondents") — were found in default on May 3, 2018.
(See Order No. 11; see also Notice of Comm'n Determination Not to Review an Initial
Determination Granting a Mot. to Find the Last Remaining Respondents in Default (June 1,
2018).) None of the Defaulting Respondents have contested Complainants' allegations that they
have violated and continue to violate section 337.
2

B. The Private Parties
1. Complainants
a) Alfay Designs, Inc.
Complainant Alfay Designs, Inc. ("Alfay") is the exclusive licensee of the '850 patent
through an exclusive license between Harry Zimmerman ("Zimmerman"), managing member of
JO-EL Wire Company, LLC and Alfay. (Am. Compl. at IT 9; see also Compl. Ex. 4; Mot. Ex. 4 at
Attachment 1.) Harry Zimmerman licensed the right to Alfay to manufacture, market, and sell
the self-anchoring beverage containers covered by the '850 patent. (Id.; see also It 20.)
b) Mighty Mug, Inc.
Complainant Mighty Mug, Inc. ("Mighty Mug") is an affiliate of Alfay. Mighty Mug has its
principal place of business at 665 Martin Street, Rahway, New Jersey. (Am. Compl. at ¶ 8.)
Mighty Mug manufactures, licenses for sale, sells, and markets self-anchoring beverage
containers under the trademark "Mighty Mug." (Id.)
c) Harry Zimmerman
Harry Zimmerman is the inventor of the '850 patent. (Mem. at 9; Am. Compl. at TT 4, 6,
19; Compl. Ex. 1.)
2. The Defaulting Respondents
a) DevBattles
Respondent DevBattles is a corporation with its principal place of business at 3rd Floor,
Street Cardinala Josepha Slipogo, 7, Ternopil, Ukraine, 46000. (Am. Compl. at IT 15.) DevBattles
imports, markets, and sells the accused products. (Id; see also Mem. at 11.)
3

b) OUOH
Respondent OUOH is a corporation with its principal place of business at Zhejiang
OUOH Houseware Co., Ltd., No.1278-1308 Wanxiang Road, Wanquan Town, Wenzhou,
Zhejiang Province, 325204 China. (Id. at I 14.) OUOH imports, markets, and sells the accused
products. (Id.; see also Mem. at 11.)
C. The Asserted Patent — U.S. Patent No. 8,028,850
The '850 patent, entitled "Self-Anchoring Beverage Container with Directional Release
and Attachment Capability," issued on October 4, 2011 to Israel Harry Zimmerman. The '850
patent generally relates to beverage containers for holding liquids or semi-liquid contents. ('850
patent at 1:8-9; see also Am. Compl. at IT 22.) In particular, "the invention concerns the
prevention of beverage container tipping and consequent content spillage." (Id. at 1:10-11.)
The '850 patent has 28 claims. Only claim 1 is at issue in this Investigation. The asserted
claim reads as follows:
1. An anchoring device having directional release and attachment capability, and further
including a feature that prevents inadvertent release, comprising: a lower base member;
an upper movable member that is wholly or partially nested within said base member by
virtue of said base member having a sidewall portion that surrounds at least part of a
sidewall portion of said movable member but leaves a top surface portion of said
movable member exposed; said movable member being movable relative to said base
member; said movable member including a gripping region that is not covered by said
base member and which is provided for intentional manipulation and lifting of said
movable member; a seal member on said base member, said seal member being
configured to engage an external reference surface and form a substantially airtight seal
therewith that defines a periphery of a controlled pressure zone between said seal
member and said reference surface; a communication port that can be opened and closed
via actuation of said movable member to selectively vent or isolate said controlled
pressure zone; and a protective member covering one or more areas of said exposed top
surface portion of said movable member that are not covered by said base member and
not part of said intended gripping region, but which are prone to being manipulated either
intentionally or unintentionally to actuate said movable member in an unwanted manner;
said protective member preventing unwanted venting of said communication port due to a
user interacting with said one or more areas of said exposed top surface portion of said
movable member instead of said intended gripping region.
4

D. The Products at Issue
The products at issue in this Investigation are self-anchoring beverage containers with
directional release and attachment capability. (Am. Compl. at .11 22, 26.) An example of a self-
anchoring beverage container with directional release and attachment capability is shown below:
2 -Thk
r" (
24
18
16
7A
4
- 6 r
F. 1 6A
(Fig. 1 of the '850 patent (side elevation view).)
LEGAL STANDARDS
A. Summary Determination
Summary determination is appropriate when there is no genuine issue as to any material
fact and the moving party is entitled to a determination as a matter of law. See 19 C.F.R. §
210.18(b). In determining whether there is a genuine issue of material fact, "the evidence must
be viewed in the light most favorable to the party opposing the motion with doubts resolved in
favor of the non-movant." Crown Operations Int'l, Ltd. v. Solutia, Inc., 289 F.3d 1367, 1375
(Fed. Cir. 2002) (citations omitted); see also Paragon Podicitrylab., Inc. v. KLM Labs, Inc., 984
F.2d 1182, 1185 (Fed. Cir. 1993) ("In other words, `[s]ummary judgement is authorized when it
5

is quite clear what the truth is, and the law requires judgment in favor of the movant based upon
facts not in genuine dispute.") (citations omitted).
B. Default
Commission Rule 210.16(b)(4) states: "A party found in default shall be deemed to have
waived its right to appear, to be served with documents, and to contest the allegations at issue in
the investigation." 19 C.F.R. § 210.16(b)(4). Commission Rule 210.16(c) further provides that
"[t]he facts alleged in the complaint will be presumed to be true with respect to the defaulting
respondent." 19 C.F.R. § 210.16(b)(4).
C. Infringement
Literal infringement is a question of fact. Finisar Coip. v. DirecTV Gip., Inc., 523 F.3d
1323, 1332 (Fed. Cir. 2008). "An infringement analysis entails two steps. The first step is
determining the meaning and scope of the patent claims asserted to be infringed. The second step
is comparing the properly construed claims to the device accused of infringing." Markman v.
Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370
(1996) (citation omitted).
Literal infringement requires the patentee to prove that the accused device contains each
limitation of the asserted claim(s). If any claim limitation is absent, there is no literal
infringement of that claim as a matter of law. Bayer AG v. Elan Plum. Research Corp., 212
F.3d 1241, 1247 (Fed. Cir. 2000).
D. Domestic Industry
In a patent-based complaint, a violation of section 337 can be found "only if an industry
in the United States, relating to the articles protected by the patent . . . concerned, exists or is in
the process of being established." 19 U.S.C. § 1337(a)(2). Under Commission precedent, this
"domestic industry requirement" of section 337 consists of an economic prong and a technical
- 6 -

prong. Certain Stringed Musical Instruments and Components Thereof, Inv. No. 337-TA-586,
Comm'n Op. at 12-14, 2009 WL 5134139 (U.S.I.T.C. Dec. 2009). The complainant bears the
burden of establishing that the domestic industry requirement is satisfied. See Certain Set-Top
Boxes and Components Thereof, Inv. No. 337-TA-454, Final Initial Determination at 294, 2002
WL 31556392 (U.S.I.T.C. June 21, 2002) (unreviewed by Commission in relevant part).
1. Economic Prong
Section 337(a)(3) sets forth the following economic criteria for determining the existence
of a domestic industry in such investigations:
(3) For purposes of paragraph (2), an industry in the United States
shall be considered to exist if there is in the United States, with
respect to the articles protected by the patent, copyright, trademark,
mask work, or design concerned —
(A) significant investment in plant and equipment;
(B) significant employment of labor or capital; or
(C) substantial investment in its exploitation, including engineering,
research and development, or licensing.
Given that these criteria are listed in the disjunctive, satisfaction of any one of them will be
sufficient to meet the economic prong of the domestic industry requirement. Certain Integrated
Circuit Chipsets and Prods. Containing Same, Inv. No. 337-TA-428, Order No. 10, Initial
Determination (unreviewed) (May 4, 2000).
2. Technical Prong
The technical prong of the domestic industry requirement is satisfied when the complainant
in a patent-based section 337 investigation establishes that it is practicing or exploiting the
patents at issue. See 19 U.S.C. § 1337(a)(2) and (3); Certain Micro,sphere Adhesives, Process for
Making Same and Prods. Containing Same, Including Self-Stick Repositionable Notes, Inv. No.
337-TA-366, Comm'n Op. at 8, 1996 WL 1056095 (U.S.I.T.C. Jan. 16, 1996). "The test for
7

satisfying the 'technical prong' of the industry requirement is essentially [the] same as that for
infringement, i.e., a comparison of domestic products to the asserted claims."Alloc, Inc. v. Intl
Trade Comm 'n, 342 F.3d 1361, 1375 (Fed. Cir. 2003). To prevail, the patentee must establish by
a preponderance of the evidence that the domestic product practices one or more claims of the
patent, either literally or under the doctrine of equivalents. Bayer, 212 F.3d at 1247. It is
sufficient to show that the products practice any claim of that patent, not necessarily an asserted
claim of that patent. Certain Microsphere Adhesives, Comm'n Op. at 7-16.
III. IMPORTATION
Section 337(a)(1) prohibits, inter alia, "[t]he 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 . . . or are
made, produced, processed, or mined under, or by means of, a process covered by the claims of a
valid and enforceable United States patent." 19 U.S.C. § 1337(a)(1). A complainant need only
prove importation of a single accused product to satisfy the importation element. Certain Purple
Protective Gloves, Inv. No. 337-TA-500, Order No. 17 (Sept. 23,. 2004) (unreviewed).
Complainants assert that the Defaulting Respondents import, market and sell self-
anchoring beverage containers "which infringe Exemplary Claim 1 of the '850, and which are
imported from China into the United States." (Mem. at 11; see also Mot. Supp. at 1-2.) They
explain that the Defaulting Respondents' accused products "are primarily sold through the
Internet and/or major retailers in the United States." (Id) Staff believes that the importation
requirement is satisfied as to the Defaulting Respondents. (Staff Resp. at 15-16.)
The undersigned finds that Complainants have established that the importation
requirement of section 337 is satisfied with respect to the Defaulting Respondents. In the
Complaint, Complainants identified specific instances of importation by each of the Defaulting
- 8 -

Respondents. (See Am. Compl. at IT 48, Compl. Ex. 35 (OUOH); ¶ 49, Compl. Ex. 36
(DevBattles); see also Mot. Supp. at 1-2; Supp. Ex. 9; Mot. Ex. 4 at Attachments 16 (OUOH), 17
(DevBattles).) Because the Commission presumes the facts alleged in the complaint to be true,
Complainants have satisfied their burden of demonstrating importation. Additionally, the
undersigned is not aware of any evidence to the contrary with respect to importation by the
Defaulting Respondents.
IV. JURISDICTION
A. Subject Matter Jurisdiction
Section 337 confers subject matter jurisdiction on the Commission to investigate, and if
appropriate, to provide a remedy for, unfair acts and unfair methods of competition in the
importation, the sale for importation, or the sale after importation of articles into the United
States. See 19 U.S.C. §§ 1337(a)(1)(B) and (a)(2). Complainants filed a complaint alleging a
violation of this subsection. Accordingly, the Commission has subject matter jurisdiction over
this Investigation under section 337 of the Tariff Act of 1930. Amgen, Inc. v. U.S. Intl Trade
Comen, 902 F.2d 1532, 1536 (Fed. Cir. 1990).
B. Personal Jurisdiction
Personal jurisdiction is not required so long as the products are being imported. See
Sealed Air Coip. v. U.S. Intl Trade Comm 'n, 645 F.2d 976, 985-89 (C.C.P.A. 1981). The
undersigned has determined hereinabove that the accused products have indeed been imported
into the United States. See Section III. Furthermore, by defaulting, the Defaulting Respondents
have waived their right to contest that in personam jurisdiction exists. See Certain Protective
Cases and Components Thereof Inv. No. 337-TA-780, Initial Determination at 46 (June 29,
2012).
9

C. In Rem Jurisdiction
The Commission has in rem jurisdiction by virtue of the fact that accused self-anchoring
beverage containers have been imported into the United States. See Sealed Air Corp. v. U. S.
Int'l Trade Comm'n, 645 F.2d 976, 985 (C.C.P.A. 1981).
V. VALIDITY
A patent is presumed valid. 35 U.S.C. § 282; Microsoft Corp. v. i4i Ltd. P 'ship, 131 S.
Ct. 2238, 2242 (2011). In the instant matter, no party has challenged the validity of the asserted
patent. The Commission is therefore prohibited from making a determination on validity since no
defense of invalidity has been raised. Lannom Mfg. Co., Inc. V. U.S. Int'l Trade Comm 'n, 799
F.2d 1572, 1580 (Fed. Cir. 1986.) ("We conclude, therefore, that Congress did not authorize the
Commission to redetermine patent validity when no defense of invalidity has been raised.")
Accordingly, there is no issue of material fact as to the validity of the '850 patent.
VI. U.S. PATENT NO. 8,028,850
A. Claim Construction
Complainants do not address the issue of claim construction in their motion or their
Supplement. In Staff's view, the claims can be given their plain and ordinary meanings. (Staff
Resp. at 16 (noting that it is "not aware of any evidence indicating that any of the limitations
require a special construction.").) Given the absence of any dispute, the undersigned agrees with
Staff that the terms of the asserted claim should be construed according to their plain and
ordinary meaning. See 02 Micro Intl Ltd. v. Beyond Innovation Tech. Co., Ltd, 521 F.3d 1351,
1362 (Fed. Cir. 2008) ("district courts are not (and should not be) required to construe evely
limitation present in a patent's asserted claims," but rather only "[w]hen the parties present a
fundamental dispute regarding the scope of a claim term." (emphasis added)); see also Hakim v.
Cannon Avent Group, PLC, 479 F.3d 1313, 1318-19 (Fed. Cir. 2007) ("Claim construction is
- 10 -

directed to claims or claim terms whose meaning is disputed as applied to the patentee's
invention in the context of the accused device. When there is no dispute as to the meaning of a
term that could affect the disputed issues of the litigation, 'construction' may not be necessary.")
B. Infringement
Complainants contend that the accused products from DevBattles and OUOH infringe
claim 1 of the '850 patent. (Mem. at 10-11.) Staff supports a finding of infringement. In Staff's
view, "the photographs of the Accused Products and related analysis provided in the expert
declaration depict or describe each of the claimed elements of the asserted claims in relation to
the Accused Products of the Defaulting Respondents." (Staff Resp. at 17.)
For the foregoing reasons, the undersigned finds that Complainants have established that
the Defaulting Respondents' accused products infringe the '850 patent. In the Amended
Complaint, Complainants asserted that each of the Defaulting Respondents and their products
infringe claim 1. (Am. Compl. at It 48 (OUOH), IT 49 (DevBattles).) Complainants also attached
claim charts to the Amended Complaint demonstrating how each of the Defaulting Respondents'
products infringe the asserted claim of the patent. (Compl. Ex. 38 at 13-15 (OUOH), 16-18
(DevBattles).) In addition, Complainants submitted a declaration from their expert, Michael J.
Marcin.2 (See Mot. Ex. 2 ("Marcin Decl.").) Mr. Marcin examined the Defaulting Respondents'
accused products and compared those products (element-by-element) to the asserted claims of
the '850 patent. (Mot. Ex. 3 at Attachments 1 (OUOH) and 6 (DevBattles).) Based upon his
examination, Mr. Marcin concluded that OUOH's Camera Lens Magic Suction Mug product and
DevBattles's Mug infringe claim 1 of the '850 patent. (Id.; see also Marcin Decl. at if 27.) The
2 Mr. Marcin is registered to practice in front of the U.S. Patent and Trademark Office. (Marcin Decl. at ¶ 2.) He
also has advised clients on the issue of infringement. (Id. at 11 3.) Staff submits that "[b]ecause technical knowledge
is required for registration to practice in front of the PTO and the subject matter of the asserted patents is not
unusually complex," "Mr. Marcin appears to have sufficient technical knowledge to opine on whether the claims of
the asserted patent[] are practiced by the Accused Product and the domestic Mighty Mugs." (Staff Resp. at 16-17
n.7.) The undersigned agrees.

undersigned is not aware of any evidence to the contrary with respect to infringement of the '850
patent by the Defaulting Respondents.
Accordingly, the undersigned finds that Complainants have established by substantial,
reliable, and probative evidence that the Defaulting Respondents' accused products infringe
claim 1 of the '850 patent.
C. Technical Prong
Complainants assert that the Mighty Mug product is covered by the '850 patent. (Mem. at
13.) Complainants attached a claim chart to the Amended Complaint demonstrating how an
exemplary Mighty Mug product practices claim 1 of the '850 patent.3 (Compl. Ex. 25.) In
addition, Complainants submitted a declaration from their expert, Mr. Marcin. (Mot. Ex. 2.) Mr.
Marcin compared the exemplary Mighty Mug product to the asserted claim. (Marcin Decl at I
29, Mot. Ex. 3 at Attachment 1.) Through this analysis, Mr. Marcin determined that the Mighty
Mug products read on claim 1 of the '850 patent. (Marcin Decl. at r 27, 29; Mot. Ex. 3 at
Attachment 1.)
Staff believes that Complainants satisfy the technical prong of the domestic industry
requirement. (Staff Resp. at 20-21.) Staff states:
[A] comparison of an exemplary Mighty Mug (Complaint, Physical Exhibit) with
the analysis provided by Complainants regarding the practicing of the limitations
of independent Claim 1 of the asserted patent shows that the Mighty Mug
products practice Claim 1 of the Asserted Patent. See Memo at 11; Exhibit 3 at
Attachment 1 (claim chart). In the Staff's view, the physical sample of the Mighty
Mug substantially matches the description and analysis by Complainants' expert,
Mr. Marcin. See Memo at 11 ("Mr. Marcin then compared the products of
Mighty Mug to his claim interpretation of Exemplary Claim 1 of the '850
Patent."). The analysis provided by Mr. Marcin in relation to the Mighty Mug is
substantially similar to the infringement analysis presented for the Accused
3 While Mighty Mug sells other products (e.g., wine glasses, cocktail glasses, and beer ware) covered by the asserted
patent, claim charts were not prepared for these products "because they operate on the exact same principle of the
Mighty Mug." (Mot. Supp. at 3; see also Supp. Ex. 10 at I 4.)
- 12 -

Products. Accordingly, the evidence shows that the technical prong of the
domestic industry requirement is satisfied by the Mighty Mug products.
The following claim chart demonstrates how an exemplary Mighty Mug product
practices claim 1 of the '850 patent.
CLAIM LANGUAGE — CLAIM 1 COMPLAINANTS' MIGHTY MUG PRODUCT
A self-anchoring beverage container with
directional release and attachment
capability, comprising:
Photo 1 shows the Mighty Mug Packaging that states the
Mighty Mug "Won't fall over when you bump into it,"
but "magically lifts up naturally."
Photo 2 shows an actual Mighty Mug Product that is
sitting on a reference surface (a table).
- 13 -

CLAIM LANGUAGE — CLAIM 1 COMPLAINANTS' MIGHTY MUG PRODUCT
a flexible nonporous base member; Photo 3 shows a bottom view of the Mighty Mug. The
outer ring is a flexible polymer ring. Compare Photo 3 to
Fig. 3 of the '850 Patent. The outer flexible polymer ring
of Photo 3 is similar to the lower peripheral skirt 6 with
lower surface 6A of Fig. 3.
9
said base member having a lower surface
that is configured to engage an external
reference surface and form a substantially
airtight peripheral seal therewith that
defines a controlled pressure zone, said
controlled pressure zone being a region
Photo 3 shows the lower surface of the base member that
is configured to engage a reference surface. Photo 2
shows the Mighty Mug on a reference surface (e.g., a
table). When the Mighty Mug is on the reference surface
and the air path to the bottom of the mug is sealed, the
ring that is shown in Photo 3 forms an air tight seal and
- 14 -

CLAIM LANGUAGE— CLAIM 1 COMPLAINANTS' MIGHTY MUG PRODUCT
creates a controlled pressure zone between the ring and
the reference surface.
Photo 4 shows the Mighty Mug disassembled. The
Mighty Mug is similar to the embodiment shown in Figs.
28-30 of the '850 Patent. Specifically, the Mighty Mug
includes a receptacle assembly that does not have a
handle. The outer cup of the receptacle assembly is
shown on the right and the inner cup is shown on the left
of Photo 4, respectively. The base member is mounted to
the outer cup of the receptacle assembly.
located between said base member and said
reference surface that is surrounded by said
peripheral seal;
a receptacle assembly mounted to said base
member;
- 15 -

COMPLAINANTS' MIGHTY MUG PRODUCT
Photo 5 shows a perspective view of the receptacle
assembly of the Mighty Mug without a lid. Photo 5
shows the Mighty Mug receptacle assembly includes a
beverage holding chamber having a closed bottom, a
sidewall and a top.
CLAIM LANGUAGE — CLAIM 1
said receptacle assembly comprising a
beverage holding chamber having a closed
bottom, a sidewall portion, and a top;
- 16 -

CLAIM LANGUAGE — CLAIM 1 COMPLAINANTS' MIGHTY MUG PRODUCT
said receptacle assembly further
comprising a communication channel
arranged to provide air communication
between said controlled pressure zone and
an area of ambient air pressure;
Photo 6 shows an inside view of the outer cup of the
receptacle assembly of the Mighty Mug. The hole in the
middle is a communication channel that provides air
communication between the controlled pressure zone
(See Photo 3) and an area of ambient air pressure. When
the outer cup is joined to the inner cup, there is an area of
ambient air between the inner cup and outer cup.
Compare Photo 6 to the outer cup of Fig. 5 of the '850
Patent that shows the communication channel 32.
-
- 17-

CLAIM LANGUAGE — CLAIM 1 COMPLAINANTS' MIGHTY MUG PRODUCT
said receptacle assembly further
comprising a pressure control device
Photo 7 shows a bottom view of the inner cup of the
receptacle assembly of the Mighty Mug. The pressure
control device is the blanket seal shown in the middle of
the bottom of the inner cup. Compare Photo 7 to the
inner cup of Fig. 6 of the '850 Patent that shows the
blanket seal 38.
said pressure control device having a
closed position wherein said pressure
control device blocks and closes said
communication channel to seal said
controlled pressure zone
and an open position wherein said pressure
control device separates from and opens
said communication channel to vent said
controlled pressure zone to ambient
pressure;
When the Mighty Mug is placed on the reference surface
(See Photo 2), the inner cup slides down in relation to the
outer cup. This sliding downward causes the pressure
control device (e.g., blanket seal) of the inner cup to sit
on top of the communication channel (e.g., the hole in
the bottom of the outer cup). As shown above, the hole
in the bottom of the outer cup leads to the controlled
pressure zone under the Mighty Mug when on the
reference surface. Thus, the blanket seal sits on the hole
and seals the communication channel such that there is
no air flow through the channel causing the Mighty Mug
to grip the reference surface,
When the Mighty Mug is lifted, the inner cup slides up in
relation to the outer cup. This sliding upward causes the
pressure control device (e.g., blanket seal) of the inner
cup to unseat from the communication channel (e.g., the
hole in the bottom of the outer cup). This unseating of
the blanket seal unseals the communication channel,
thereby allowing air to flow from the controlled pressure
zone, which releases the Mighty Mug from the reference
surface.
- 18 -

CLAIM LANGUAGE — CLAIM 1 COMPLAINANTS' MIGHTY MUG PRODUCT
said receptacle assembly further
comprising a grasping portion that is
arranged to be grasped by a user during
normal lifting of said beverage container
from said reference surface;
said pressure control device and said
grasping portion being part of a common
rigid structure so that said grasping portion
cannot move without causing simultaneous
movement of said pressure control device,
As described above, the Mighty Mug is similar to the
embodiments shown in Fig. 28-30 of the '850 Patent. In
this embodiment, "the upper portion 162 of the inner cup
148 that would normally be grasped by a user in order to
lift a glass provides a grasping portion of the receptacle
assembly." Id. at col. 15, lines 62-65; Fig. 28. Thus, the
upper portion of the inner cup of the Mighty Mug is that
grasping portion. See Photo 2.
Photo 8 shows a perspective view of the inner cup of the
Mighty Mug showing both the grasping portion (e.g., the
upper portion of the inner cup) and the pressure control
device (e.g. blanket seal) that are part of the same
common rigid structure. As described above, when the
Mighty Mug is lifted, the inner cup slides up in relation
to the outer cup causing the pressure control device to
also move upward, e.g., movement of the side of the
inner cup also causes a corresponding movement of the
pressure control device.
--
said rigid structure producing simultaneous
actuation of said pressure control device
from said closed position to open said
communication channel when a user grasps
said grasping portion and initiates said
normal lifting of said beverage container
from said reference surface;
whereby said beverage container is self-
biased to remain affixed to said reference
surface when said communication channel
is closed due to said controlled pressure
zone generating a partial vacuum when an
attempt is made to move said beverage
container without actuating said pressure
control device;
As detailed above, when a user lifts the Mighty Mug
from the upper portion of the inner cup, the pressure
control device unseats from the hole of the outer cup and
unseals the communication channel.
When the Mighty Mug is on the reference surface and
the seal formed, the only manner of releasing the Mighty
Mug is by actuating the pressure control device to the
open position by lifting the Mighty Mug straight up.
Pushing on the side of the Mighty Mug does not release
the Mighty Mug from the reference surface because the
pressure control device is not unseated from the
communication channel.
- 19-

CLAIM LANGUAGE — CLAIM 1 COMPLAINANTS' MIGHTY MUG PRODUCT
Again, the only way to release the Mighty Mug is to lift
straight up and actuate the pressure control device to the
open position
and whereby said self-biasing will be
released surreptitiously and said beverage
container will lift away from said reference
surface without discernible resistance when
said pressure control device is actuated to
vent said controlled pressure zone due to a
user grasping said grasping portion during
normal lifting of said beverage container.
(Mot Ex. 3 at Attachment 1; see also Compl. Ex. 25.)
As detailed in the above claim chart, Complainants' exemplary Mighty Mug product
includes all of the elements of claim 1 of the '850 patent. (Compare '850 patent (claim 1), with
Mot. Ex. 3 at Attachment I.) In addition, there is no evidence of record to contradict
Complainants' assertion that the exemplary Mighty Mug product practices the '850 patent. The
undersigned therefore finds that Complainants have presented substantial, reliable, and probative
evidence that the technical prong of the domestic industry requirement is satisfied with respect to
the '850 patent.
VII. DOMESTIC INDUSTRY — ECONOMIC PRONG
Complainants assert that they have satisfied the economic prong of the domestic industry
requirement under 19 U.S.C. §1337(a)(3)(A), (B), and (C). (Mem. at 14-16.) They state that
while the mugs themselves are manufactured overseas, 101 other activities, including partial
finishing manufacture take place in the United States." (Id. at 14.) Complainants explain that
"I[o]nce in the United States, the mugs have to be repackaged, coded, and have graphic designs
applied." (Id.) All of this work is performed at Complainants' Rahway, New Jersey facility. (Id.)
In Staffs view, "the evidence regarding investments in product finishing (i.e. repackaging,
applying of shipping bar codes, and application of graphic designs) shows that at least prongs (a)
and (b) of the domestic industry requirement are satisfied." (Staff Resp. at 21.)
- 20 -

The record demonstrates that Complainants have made significant investments in plant
and equipment. They maintain a plant that is approximately 12,000 square feet in Rahway, New
Jersey at a cost of $10,000 a month. (Mot. Ex. 6 ("Smaldone Decl.") at ¶11 7-8; Mot. Ex. 7 ("2nd
Smaldone Decl.") at ¶1 7-8.) Approximately 70% of the Rahway facility is dedicated to
Complainants' Mighty Mug products. (Mot. Supp. at 2; Supp. Ex. 10 at IT 3; Smaldone Dee!. at If
17; 2nd Smaldone Deel. at II 17.)4 The plant houses valuable equipment used in the research and
development, design, and manufacturing of prototypes of Complainants' Mighty Mug products.
(Smaldone Dee!. at I 9; 2nd Smaldone Deel. at It 9.) Specifically, Complainants attest that they
have invested $212,000 in the following equipment: "fork lift, racking systems, truck bays and
unloading systems, computers, software, including design software, and computer generated
modeling equipment for the design and improvement of products." (Mot. Suppl. at 3; Supp. Ex.
10 at If 5.) Complainants have also invested $5,200 in "3D form labs with 3D printer and
materials, and a CNC machine which is used for the design and improvement of the Mighty Mug
products and is dedicated solely to the products covered by the '850 patent." (Id) All activity
concerning the design, development, finishing, manufacture, and distribution of the Mighty Mug
products occurs at the Rahway facility.5 (Mot. Supp. at 4; Supp. Ex. 10 at It 7.) For example, all
repackaging, applying of shipping bar codes, graphic designs, customer service requirements,
and warranty work for the Mighty Mug products are performed at the Rahway facility.
(Smaldone Decl. at I 12; 2nd Smaldone Decl. at I 12.) Complainants also "price tickets" for
4 Complainants explain: "The owners of Mighty Mug own another company, Alfay, Inc., which operates at the same
facility. The primary business of Alfay is the distribution and sale of Faberware tea kettles. Allocation of the factors
of production of plant, equipment and labor is done by percentage of sales. Mighty Mug represents approximately
70 percent of sales with Faberware tea kettle comprising the rest." (Mot. Supp. at 2; Supp. Ex. 10 at ¶ 3.) In Staff's
view, Complainants have reasonably allocated its domestic investments to the self-anchoring beverage containers
that embody the asserted patent. (Staff Resp. at 22.) Based on Complainants' explanation, the undersigned agrees
with Staff that their allocation is proper.
5 The only activity done overseas is the plastic molding of the mug. (Mot. Supp. at 4; Supp. Ex. 10 at ¶ 7.)
- 21 -

certain customers°, as well as handle all shipping, paperwork, bills of lading, present the
combination for retail customers, and screen engrave logos on the self-anchoring beverage
containers at the Rahway facility. (Id. at It 13.) In addition, all distribution of catalogs, samples,
sales brochures, advertising in trade publications, website and internet marketing, and sales of
the self-anchoring beverage containers are performed at the Rahway facility.7 (Mem. at 14;
Findings of Fact at 1133.)
The record also demonstrates that there is a significant employment of labor and capita1.8
Complainants employ 14 people, of which 10 are involved in the research and development of
Complainants' Mighty Mug products. (Smaldone Decl. at Tif 18-20; 2nd Smaldone Decl. at r
18-20.) These 10 full-time salaried employees spend 70% of their working time on the Mighty
Mug products, with the remaining time devoted to business functions. (Smaldone Decl. at ¶ 20;
2nd Smaldone Decl. at r 20.) The salaries of Complainants' 14 employees range from $35,000 to
$100,000. (Id. at If 21.)
Staff prepared a summary of Complainants' investments in the design, development,
finishing, and customer support of the Mighty Mug products:9
6 "Pricing tickets" refers to the application of retail price stickers. (Smaldone Decl. at ¶ 13; 2nd Smaldone Decl. at
13.)
7 Complainants are not relying solely on marketing and sales expenditures to satisfy the economic prong.
Complainants have provided evidence of significant expenditures in its employment of labor in other qualifying
activities, such as research, product development, and customer service, as well as capital expenditures in equipment
used for the design of the Mighty Mug products. See Certain Collapsible Sockets for Mobile Electronic Devices and
Components Thereof Inv. No. 337-TA-1056, Cornm'n Op. at 19-20 (July 9, 2018).
As discussed above, Complainants have invested approximately $10,000 a month in rent for the Rahway plant and
at least $212,000 in equipment. (Smaldone Decl. at ¶ 8; 2nd Smaldone Decl. at I 8; Supp. Ex. 10 at ¶ 5.) These same
investments constitute a significant employment of capital.
9 Since the filing of the Complaint, Mighty Mug purchased another facility next to the Rahway plant. (Mot. Ex. 5 at
TT 3-5.) Staff's chart included Complainants' investments in this new facility. (Staff Resp. at 26.) Because the
undersigned finds that the investments in the existing facility are sufficient to show that the domestic industry
requirement is satisfied, the undersigned need not consider Complainants' investments in the new facility. For this
reason, those investments have not been included in the chart.
- 22 -

Investments or Costs Investment Amounts Conservative Total of
Investments Allocable Practice
of the '850 Patent (i.e. Reduced
by 30% where applicable)
Original Facility $10,000 (monthly)1° $7,000 (monthly)
R&D Salaries > $350,00011 (annually) > $245,000 (annually)12
Equipment $212,000 $148,40013
3D printing R&D Equipment $5,200 $5200
(Staff Resp. at 26.) The undersigned is not aware of any evidence to the contrary.
Here, the allocated values credited towards the '850 patent should be considered
substantial in the context of Complainants' overall operations. See Certain Stringed Musical
Instruments and Components Thereof Inv. No. 337-TA-586, Comm'n Op. at 25-26 (May 16,
2008) ("[T]he requirement for showing the existence of a domestic industry will depend on the
industry in question, and the complainant's relative size.").) The undersigned therefore finds that
Complainants have adduced substantial, reliable, and probative evidence to support a finding that
it satisfies the economic prong of the domestic industry requirement under § 337(a)(3)(A) and
(B)14.
10 Staff notes that the Rahway facility was purchased by an affiliate of Complainants. (Staff Resp. at 26 n.11.) Thus,
according to Staff, the operative value is the monthly lease payments for use of the facility by the Complainants.
(Id.). The undersigned agrees.
11 Staff applied the lowest salary of $35,000 for each of the 10 employees identified as working on the research and
development of the Mighty Mug products. (Id. at n.12.)
12 Although Complainants stated that their total annual payroll allocated to the products is $520,000, there is no
specific information about the roles of the employees in the "total annual payroll" amount. (Id. at n.13.) Staff
therefore only relied on the salary information attributable to employees performing research and development work
related to the Mighty Mug products. (M.)
13 Because Complainants did not expressly state that this equipment is fully allocated to the Mighty Mug products,
Staff applied a sales based allocation of 70%. (Id. at n.14.)
14 The undersigned has already determined that Complainants have met the economic prong under sections
337(a)(3)(A) and (B.) Accordingly, the undersigned need not decide whether Complainants meet the economic
prong under section 337(a)(3)(C) or whether Complainants are in the process of establishing a domestic industry.
- 23 -

VIII. REMEDY AND BONDING15
A. General Exclusion Order
Section 337(d)(2) provides that a general exclusion order ("GEO") may issue in cases
where (a) a general exclusion from entry of articles is necessary to prevent circumvention of an
exclusion order limited to products of named respondents; or (b) there is a widespread pattern of
violation of Section 337 and it is difficult to identify the source of infringing products. 19 U.S.C.
§ 1337(d)(2). The statute essentially codifies Commission practice under Certain Airless Paint
Spray Pumps and Components Thereof, Inv. No. 337-TA-90, Comm'n Op. at 18-19, USITC Pub.
119 (Nov. 1981) ("Spray Pumps"). See Certain Neodymium-Iron-Boron Magnets, Magnet
Alloys, and Articles Containing the Same, Inv. No. 337-TA-372 ("Magnets"), Cornm'n Op. on
Remedy, the Public Interest and Bonding at 5 (USITC Pub. 2964 (1996)) (statutory standards
"do not differ significantly" from the standards set forth in Spray Pumps). In Magnets, the
Commission confirmed that there are two requirements for a general exclusion order: [1] a
"widespread pattern of unauthorized use;" and [2] "certain business conditions from which one
might reasonably infer that foreign manufacturers other than the respondents to the investigation
may attempt to enter the U.S. market with infringing articles." Id. The focus now is primarily on
the statutory language itself and not an analysis of the Spray Pump factors. Ground Fault Circuit
Interrupters and Prods. Containing Same, Inv. No. 337-TA-615, Comm'n Op. at 25 (Mar. 9,
2009).
Complainants assert that a GEO should issue because there is a widespread pattern of
infringement of the asserted patent, that the relevant business conditions makes it difficult to
15 Complainants did not request cease and desist orders against the Defaulting Respondents. (See generally Mem. at
18-20.)
- 24 -

identify the source of infringing products, and an limited exclusion order would be easy to
circumvent. (Mem. at 18-20.) Staff concurs. (Staff Resp. at 29-36.)
1. Circumvention of a Limited Exclusion Order
The evidence shows that any limited exclusion order issued in this Investigation would
likely be subject to immediate evasion because it is difficult to gain information about the
entities selling infringing self-anchoring beverage containers. Many of the companies selling
these products use false or non-existent addresses, making them difficult or impossible to find.
(See, e.g., Mot. Ex. 8 ("Krogness Affidavit") at ¶J 6, 7, 9, 10, 11-23.) For example, site visits to
the addresses for Respondents Chekue, Hiraliy, Otelas, and Artiart revealed no evidence of these
companies at the listed location(s). (Id. at ¶J 7, 9, 17, 22.) In fact, the address for Otelas was in a
residential block in Lithuania.16 (Id. at ¶11 17-18.) Other entities operate out of or list addresses
that actually belong to companies that are not associated with them and/or have no knowledge of
the infringing entities.17 (Id. at ¶J 6, 7, 9, 10, 11-22.) Complainants have also provided evidence
that the accused products are shipped into the country under false and misleading labels — i.e.,
basically anonymous sales through online portals such as Amazon and eBay.18 (Mot. Ex. 4; see
also Staff Resp. at 35 ("[I]t appears as though the named 'seller' on the intemet listings does not
correlate to the source of the infringing product.").) Moreover, the fact that the Defaulting
Respondents have ignored proceedings in this Investigation (which resulted in them being found
16 According to Complainants, many Chinese companies are shifting their sourcing of infringing self-anchoring
beverage containers to countries in Eastern Europe such as Lithuania or the Ukraine. (Mem. at 19; Krogness
Affidavit at ¶¶ 4, 19.)
17 At many of the locations these companies listed as their address, the person answering the phone either did not
know of the company, was evasive, or hung up. (Krogness Affidavit at ¶¶ 8, 10, 19.)
18 See Certain Loom Kits for Creating Linked Articles ("Loom Kits"), Inv. No. 337-TA-923, Comm'n Op. at 13
(June 26, 2015) ("[A] large number of anonymous infringing sales on the Internet [] supports a likelihood of
circumvention under subparagraph (A) and also supports a determination that it is difficult to identify the source of
infringing products under subparagraph (B).").)
- 25 -

in default) suggests that they would not abide by the terms of any limited exclusion order the
Commission may impose.
2. Widespread Pattern of Unauthorized Use
The undersigned finds that Complainants have presented evidence of a widespread
pattern of violation. In particular, the evidence shows that, in addition to the Defaulting
Respondents, numerous other sources of infringing self-anchoring beverage containers are
available for purchase online.19 (Mem. at 11-12, 18-20; Mot. Ex. 4 at I 4, Attachment 2 (Calvert
Retail, Inc.); If 5, Attachment 3 (Artful Home, Inc.); I 6, Attachment 4 (4A11Promos, Inc.); ¶ 7,
Attachment 5 (Hirsch Gift, Inc.); I 8, Attachment 6 (Sunrise Gifts and Souvenirs, Inc.); if 9,
Attachment 7 (Motivators, Inc.); if 10, Attachment 8 (AnyPromo.com, Inc.); If 11, Attachment 9
(Quality Logo Products, Inc.); If 12, Attachment 10 (Shenzen Smartop Industrial Co., Ltd.); If 13,
Attachment 11 (U.S. Imprints, Inc.); If 14, Attachment 12 (RushKing Promotions, Inc.); if 15,
Attachment 13 (GoImprints, Inc.); if 16, Attachment 14 (Swag Brokers, LLC); if 17, Attachment
15 (Sunrise Gifts, Inc.); If 18, Attachment 16 (OUCH); if 19, Attachment 17 (DevBattles); If 20,
Attachment 18 (Hiraliy); I 21, Attachment 19 (Chekue); if 22, Attachment 20 (Otelas); if 23,
Attachment 21 (Tapcet); if 24, Attachment 22 (Enjoydeal 99); see also Mot. Ex. 6 at Attachment
2 (photographs of unauthorized "Mighty Mugs" returned by consumers to Complainants).) And,
as discussed above, it is difficult to identify the source of the infringing products. (See Section
XI.A.1, supra.) The infringing products are often sold under "a plethora of different names."
(Mem. at 20; Mot. Ex. 4 at Attachments 18-20.) Furthermore, the difficulty in serving some
respondents (with some being unlocatable) confirms that it is nearly impossible to identify the
sources of these products. (See, e.g., Mot. Ex. 8.)
19 "The Commission has found in other investigations that numerous online sales of infringing imported goods can
constitute a pattern of violation of section 337." Loom Kits" at 14 (citing Cases for Portable Devices, Comrn'n Op.
at 10).
- 26 -

3. Conclusion
For the foregoing reasons, the undersigned recommends that in the event the Commission
finds a violation of section 337, the appropriate remedy is a GEO that encompasses the
infringing products. The undersigned also finds that the additional requirements of section
337(g)(2) have been satisfied in this Investigation.
B. Bonding
Pursuant to section 337(j)(3), the Administrative Law Judge and the Commission must
determine the amount of bond to be required of a respondent during the 60-day Presidential
review period following the issuance of permanent relief, in the event that the Commission
determines to issue a remedy. 19 U.S.C. § 1337(j)(3). The purpose of the bond is to protect the
complainant from any injury. 19 C.F.R. § 210.42(a)(1)(ii), § 210.50(a)(3).
When reliable price information is available, the Commission has often set the bond by
eliminating the differential between the domestic product and the imported, infringing product.
See Microsphere Adhesives, Processes for Making Same, and Prods. Containing Same,
Including Self-Stick Repositionable Notes, Inv. No. 337-TA-366, USITC Pub. 2949, Comm'n
Op. at 24 (Dec. 8, 1995). In other cases, the Commission has turned to alternative approaches,
especially when the level of a reasonable royalty rate could be ascertained. See, e.g., Certain
Integrated Circuit Telecomm. Chips and Prods. Containing Same, Including Dialing Apparatus,
Inv. No. 337-TA-337, Comm'n Op. at 41, 1993 WL 13033517, at *24 (U.S.I.T.C. June 22,
1993). A 100 percent bond has been required when no effective alternative existed. See, e.g.,
Certain Flash Memory Circuits and Prods. Containing Same, Inv. No. 337-TA-382, USITC Pub.
No. 3046, Comm'n Op. at 26-27 (July 1997) (imposing a 100% bond when price comparison
was not practical because the parties sold products at different levels of commerce, and the
proposed royalty rate appeared to be de minimus and without adequate support in the record).
-27-

Complainants request that the bond be set at 100% for all infringing imports during the
Presidential Review Period. (Mem. at 20.) Staff also believes that a bond of 100% is appropriate.
(Staff Resp. at 36-37 ("Given the evidentiary record, and the fact that all Respondents have
defaulted without having appeared, let alone providing discovery, the Staff agrees that
Complainants' request for a bond of 100 percent of the entered value of infringing self-anchoring
beverage containers is appropriate.").) The undersigned agrees with Complainants and Staff that
the Commission should set the bond value at 100%. See Certain Digital Photo Frames and
Image Display Devices and Components Thereof Inv. No. 337-TA-807, Comm'n Op. at 17,
U.S.I.T.C. 4549 (July 2015) ("The Commission finds that there is little or no evidence in the
record of this investigation as to pricing of the defaulting respondents' products. . . . The
Commission has traditionally set a bond of 100 percent of the entered value of the products
under these circumstances.").
IX. INITIAL DETERMINATION
For the foregoing reasons, it is the INITIAL DETERMINATION of the undersigned that
Complainants have shown by reliable, probative, and substantial evidence that a domestic
industry exists and a violation of section 337 has occurred. Accordingly,. Complainants' motion
for summary determination of violation (1092-008) is hereby granted.
In addition, the undersigned recommends that the Commission issue a general exclusion
order, and that 100 percent bond be imposed during the Presidential review period.
The Secretary shall serve the confidential version of this Initial Determination upon
counsel who are signatories to the Protective Order (Order No. 1) issued in this Investigation. A
public version will be served at a later date upon all parties of record.
- 28 -

Pursuant to 19 C.F.R. § 210.42(h), this Initial Determination shall become the
determination of the Commission unless a party files a petition for review pursuant to 19 C.F.R.
§ 210,43(a) or the Commission, pursuant to 19 C.F.R. § 210.44, orders on its own motion a
review of the Initial Determination or certain issues therein.
Within ten days of the date of this document, the parties shall submit to the Office of
Administrative Law Judges a joint statement regarding whether or not they seek to have any
portion of this document deleted from the public version. The parties' submission shall be made
by hard copy and must include a copy of this Initial Determination with red brackets indicating
any portion asserted to contain confidential business information to be deleted from the public
version, The parties submission shall include an index identifying the pages of this document
where proposed redactions are located. The parties' submission concerning the public version of
this document need not be filed with the Commission Secretary.
SO ORDERED.
Chief Administrative Law Judge
- 29 -

CERTAIN SELF-ANCHORING BEVERAGE CONTAINERS Inv. No. 337-TA4092
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached PUBLIC VERSION ORDER NO. 15
has been served by hand upon the Commission Investigative Attorney, Monisha Deka, Esq.,
and the following parties as indicated, on September 7, 2018.
Lisa R. Barton, ecretary
U.S. International Trade Commission
500 E Street SW, Room 112
Washington, DC 20436
On Behalf of Complainants Alfay Designs, Inc.; Mighty
Mug, Inc.; and Harry Zimmerman:
Donald R. Dinan, Esq.
GOETZ FITZPATRICK LLP
One Penn Plaza, 31' Floor
New York, NY 10119
O ia Hand Delivery
Via Express Delivery
El Via First Class Mail
O Other: