Certain Height-Adjustable Desk Platforms and Components Thereof, Inv. 337-TA-1125

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U.S. International Trade Commission
Publication 5081 	June 2020
Washington, DC 20436
In the Matter of
337-TA-1125
CERTAIN HEIGHT-ADJUSTABLE DESK
PLATFORMS AND COMPONENTS
THEREOF
U.S. International Trade Commission
COMMISSIONERS
David S. Johanson, Chairman
Rhonda K. Schmidtlein, Commissioner
Jason E. Kearns, Commissioner
Randolph J. Stayin, Commissioner
Amy A. Karpel, Commissioner
Address all communications to
Secretary to the Commission
United States International Trade Commission
Washington, DC 20436
U.S. International Trade Commission
Washington, DC 20436
www.usitc.gov
Publication 5081 	June 2020
In the Matter of
337-TA-1125
CERTAIN HEIGHT-ADJUSTABLE DESK
PLATFORMS AND COMPONENTS
THEREOF
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE 	Investigation No. 337-TA-1125
DESK PLATFORMS AND
COMPONENTS THEREOF
ISSUANCE OF A GENERAL EXCLUSION ORDER AND
CEASE AND DESIST ORDERS; TERMINATION OF THE INVESTIGATION
AGENCY: U.S. Intemational Trade Connnission.
ACTION: Notice.
SUMMARY: Notice is hereby given that the U.S. International Trade Commission has
determined to issue: (1) a general exclusion order (“GEO”) prohibiting the unlicensed
importation of platfonns that sit on an existing desk or work surface and can be adjusted to
different heights that infringe one or more of claims 1-2, 4, and 10-l_l of U.S. Patent No.
9,113,703 (“the ’703 patent”); claims 11, 16, 18, and 22-26 of U.S. Patent No. 9,277,809 (“the
’809 patent”); claims 1, 4-5, 11-12, 26, and 33-36 of U.S. Patent No. 9,554,644 (“the ’644
patent”); and claims 20-21 and 40-50 of U.S."Patent No. 9,924,793 (“the ’793 patent”); and (2)
cease and desist orders (“CDO”) against certain respondents that had not participated in the
above-captioned investigation. The investigation is terminated in its entirety.
FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436,
telephone (202) 205-2392. Copies of non-confidential documents filed in connection with this
investigation are or will be available for inspection during official business hours (8:45 a.m. to
5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street
SW., Washington, DC 20436, telephone (202) 205-2000. General information conceming the
Cormnission may also be obtained by accessing its Intemet server (httgs://www.usitc. gov). The
public record for this investigation may be viewed on the Cormnission’s Electronic Docket
Information System (“EDIS”) (httgs://edis.usitc. gov). Hearing-impaired persons are advised that
information on this matter can be obtained by contacting the Commission’s TDD terminal,
telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On July 30, 2018, the Commission instituted this
investigation based on a complaint and supplements thereto filed on behalf of Varidesk LLC
(“Varidesk”) of Coppell, Texas. 83 FR 36621 (July 30, 2018). The complaint alleges violations
of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the
importation into the United States, the sale for importation, and the sale within the United States
after importation of certain height-adjustable desk platforms and components thereof by reason
of infringement of one or more claims of the ’703, the ’809, the ’644, and the ’793 patents. Id.
The complaint further alleges that an industry in the United States exists as required by section
337. Id
The Commission’s notice of investigation named thirty-one respondents: (1) Albeit LLC
of San Francisco, Califoniia (“Albeit”); (2) ATC Supply LLC of Plainfield, Illinois (“ATC
Supply”); (3) Shenzhen Atc Network Scienology CO., LTD. of Guangdong, China (“Shenzhen
ATC”); (4) Best Choice Products of Ontario, Califomia (“Best Choice”); (5) Huizhou Chang He
Home Supplies Co., Ltd. of Guangdong, China (“Chang He”); (6) Dakota Trading, Inc. of
Emerson, New Jersey (“Dakota”); (7) Designa Inc. of Guangdong, China (“Designa”);
(8) Designa Group, Inc. of El Dorado Hills, California (“Designa Group”); (9) Eureka LLC of El
Dorado Hills, Califomia (“Eureka”); (10) LaMountain Intemational Group LLC of Elk Grove,
California (“LaMountain”); (1 1) Amazon Import Inc. of El Monte, California (“Amazon
Imports”); (12) Hangzhou Grandix Electronics Co., Ltd. of Zhejiang, China (“Grandix”);
(13) Ningbo GYL Intemational Trading Co., Ltd. of Zhejiang, China (“Ningbo GYL”); _
(14) Knape & Vogt Manufacturing Co. of Grand Rapids, Michigan (“Knape & Vogt”); (15) JV
Products Inc. of Milpitas, Califomia (“JV Products”); (16) Vanson Distributing, Inc. of Milpitas,
Califomia (“Vanson Distributing”); (17) Vanson Group, Inc. of Milpitas, Califomia (“Vanson
Group”); (18) S.P. Richards Co. DBA Lorell of Smyrna, Georgia (“Lorell”); (19) Nantong Jon
Ergonomic Office Co., Ltd. of Jiangsu, China (“Nanotong Jon”); (20) Jiangsu Omni Industrial '
Co., Ltd. of Jiangsu, China (“Jiangsu Omni”); (21) OmniMax USA, LLC of Anna, Texas
(“OrnniMax USA”); (22) Haining Orizeal Import and Export Co., Ltd. of Zhejiang, China
(“Haining Orizeal”); (23) Qidong Vision Mounts Manufacturing Co., Ltd. of Jiangsu, China
(“Vision Mounts”); (24) Hangzhou KeXiang Keji Youxiangongsi of Hangzhou, China
(“Hangzhou KeXiang”); (25) Smugdesk, LLC of La Puente, California (“Smugdesk”);
(26) Venditio Group, LLC of Elkton, Florida (“Venditio”); (27) Versa Products Inc. of Los
Angeles, California (“Versa”); (28) Victor Technology, LLC of Bolingbrook, Illinois (“Victor”);
(29) CKnapp Sales, Inc. DBA Vivo of Goodfield, Illinois (“Vivo”); (30) Wuhu Xingdian
Industrial Co., Ltd. of Anhui, China (“Wuhu Xingdian”); and (31) Wuppessen, Inc. of Ontario,
Califomia (“Wuppessen”). Id. The Office of Unfair Import Investigations (“OUII”) was also
named as a party in this investigation. Id.
_ During the course of the investigation, Varidesk settled with the following respondents:
Venditio, Jiangsu Omni, OmniMax USA, Knape & Vogt, Wuppessen, Victor, Versa, Designa,
Designa Group, Eureka, Chang He, Vision Mounts, Vivo, Nanotong Jon, Best Choice, Grandix,
Hangzhou I(eXiang, Lorell, and Dakota. Order No. 7, unreviewed, Notice (Sept. 18, 2018);
Order No. 11, unreviewed, Notice (Sept. 25, 2018); Order No. 12, unreviewed, Notice (Oct. 4,
2018); Order No. 13, unreviewed, Notice (Oct. 4, 2018); Order No. 16, unreviewed, Notice (Nov.
9, 2018); Order No. 18, unreviewed, Notice (Nov. 29, 2018); Order No. 20, unreviewed, Notice
(Feb. 21, 2019); Order No. 23, unreviewed, Notice (Mar. 12, 2019); Order No. 25, unreviewed,
Notice (Apr. 5, 2019); Order No. 31, unreviewed, Notice (May 16, 2019). In addition, the
investigation terminated as to LaMountain based on a consent order stipulation. Order No. 15,
unreviewed, Notice (Oct. 22, 2018). The investigation has also previously terminated as to
certain claims of each asserted patent. Order No. 30, unreviewed, Notice (May 13, 2019).
2
On April 11, 2019, Varidesk moved for summary determination of a violation of section
337 as to the remaining eleven respondents, who were served with a copy of the complaint, but
had not filed a response or participated in the investigation. On April 24, 2019, Varidesk filed a
supplement to the motion. The remaining respondents (collectively, “the Non-Participating
Respondents”) are: (1) Albeit, (2) ATC Supply, (3) Shenzhen ATC, (4) Amazon Imports,
(5) Ningbo GYL, (6) JV Products, (7) Vanson Distributing, (8) Vanson Group, (9) Haining
Orizeal, (10) Smugdesk, and (11) Wuhu Xingdian. On April 26, 2019, OUII filed a response
supporting Varidesk’s motion in substantial part.
On September 13, 2019, the presiding administrative lawjudge (“ALJ”) issued an initial
detennination (“ID”) (Order No. 33), and a recommended determination (“RD”) on remedy and
bonding. The ID granted the motion in part. Specifically, the ALJ found, inter alia, (1) that
Varidesk established the importation requirement as to each Non-Participating Respondent,
except for Haining Orizeal; (2) that Varidesk established infringement as to all accused products
and all remaining asserted claims (claims 1-2, 4, and 10-11 of the ’703 patent; claims 11, 16, 18,
and 22-26 of the ’809 patent; claims 1, 4-5, 11-12, 26, and 33-36 of the ’644 patent; and claims
20-21 and 40-50 of the ’793 patent); and (3) that Varidesk satisfied the domestic industry
requirement for each asserted patent. In addition, the ALJ recommended that the Commission
issue a general exclusion order and impose a 100 percent bond during the period of Presidential
review. The ALJ also recommended that the Commission not issue cease and desist orders
directed to the Non-Participating Respondents.
On October 29, 2019, the Commission determined not to review the ID. 84 FR 59417
(Nov. 4, 2019). The C0rmnission’s determination resulted in finding a violation of section 337
as to Albeit, ATC Supply, Shenzhen ATC, Amazon Imports, Ningbo GYL, JV Products, Vanson
Distributing, Vanson Group, Smugdesk, and Wuhu Xingdiarr, but not as to Haining Orizeal. See
id. The Commission also requested written submissions on remedy, the public interest, and
bonding. See id. On November 13, 2019, Varidesk and OUII submitted their briefs on remedy,
the public interest, and bonding. Varidesk further filed a response brief on November 20, 2019.
The Commission has determined that the appropriate remedy in this investigation is:
(1) a GEO prohibiting the unlicensed importation of platforms that sit on an existing desk or
work surface and can be adjusted to different heights that infringe one or more of claims 1-2, 4,
and 10-11 ofthe ’703 patent; claims 11, 16, 18, and 22-26 ofthe ’809 patent; claims 1, 4-5, 11
12, 26, and 33-36 of the ’644 patent; and claims 20-21 and 40-50 of the ’793 patent; and
(2) CDOs prohibiting respondents Albeit, ATC Supply, Amazon Import, JV Products, Vanson
Distributing, Vanson Group, and Smugdesk from further importing, selling, and distributing
infringing products in the United States. (Chairman Johanson and Commissioner Stayin dissent
with respect to the Commission’s determination to issue CDOs in this investigation.) The
Commission has also determined that the public interest factors enumerated in paragraphs
337(d)(l) and (f)(l), 19 U.S.C. l337(d)(1) and (f)(l), do not preclude issuance of these remedial
orders. Finally, the Commission has determined that the bond during the period of Presidential
review pursuant to 19 U.S.C. 1337(j) shall be in the amount of 100 percent of the entered value
of the imported articles. The Commission’s order was delivered to the President and to the
United States Trade Representative on the day of its issuance. The investigation is hereby
terminated.
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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 ofthe Commission’scRules of
Practice and Procedure (19 CFR part 210).
By order of the Commission.
7%
Lisa R. Barton
Secretary to the Commission
Issued: January 22, 2020
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CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND 	Inv. N0. 337-TA-1125
COMPONENTS THEREOF .
PUBLIC CERTIFICATE OF SERVICE <1
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served by hand
upon the Commission Investigative Attorney, Andrew Beverina, Esq., and the following parties
as indicated, on January 22, 2020.
On Behalf of Complainants Varidesk LLC
Adam R. Hess, Esq.
SQUIRE PATTON BOGGS
2550 M Street, NW
Washington D.C. 20037
Respondents:
Albeit LLC '
1351 Broadway St.
San Francisco,pCA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902, Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc;
9910 BaldwinPlace
El Monte, CA 91731
Wt-?@
Lisa R. Barton, Secretary
U.S. Intemational Trade Cormnission
500 E Street, SW, Room 112
Washington, DC 20436 ’
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CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND 	Inv. N0. 337-TA-1125
COMPONENTS THEREOF
Certificate of Service 4 Page 2
Ningbo GYL International Trading Co., Ltd. I
Mingbin Road 228 ‘ ‘
Luoto Area
Zhenhai 315202, Ningbo, Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd
4"‘ Floor, Building B, Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk, LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co.»,Ltd.
No. 168 Xici 5'“ Rd.
Mechanical Industrial Zone
Wuhu, Anhui, China
S
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UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE
DESK PLATFORMS AND
COMPONENTS THEREOF
Investigation No.337-TA-1125
GENERAL EXCLUSION ORDER
The Commission has determined that there is a violation ofsection 337 ofthe 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 height-adjustable desk platforms and
components thereof that infringe one or more of claims 1-2, 4, and 10-11 of U.S. Patent No.
9,113,703 ("the '703 patent"); claims 11, 16, 18, and 22-26 of U.S. Patent No. 9,277,809
("the '809 patent"); claims 1, 4-5, 11-12, 26, and 33-36 of U.S. Patent No. 9,554,644("the '644
patent"); and claims 20-21 and 40-50 of U.S. Patent No. 9,924,793 ("the '793 patent").
Having reviewed the record in this investigation, including the written submissions
of the parties, the Commission has made its determination 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 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 platforms that sit on an existing desk or work surface and can be adjusted to
different heights.
1
The Commission has also determined that the public interest factors enumerated in
19 U.S.C. § 1337(d) do not preclude issuance of the 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 ofthe articles in question.
Accordingly, the Commission hereby ORDERS that:
I. Platforms that sit on an existing desk or work surface and can be adjusted to
different heights that infringe one or more of claims 1-2, 4, and 10-11 ofthe '703
patent; claims 11, 16, 18, and 22-26 ofthe '809 patent; claims 1, 4-5, 11-12, 26,
and 33-36 ofthe '644 patent; and claims 20-21 and 40-50 ofthe '793 patent
("covered articles") are excluded from entry into the United States for
consumption, entry for consumption from a foreign-trade zone, or withdrawal
from a warehouse for consumption, for the remaining terms ofthe patents, except
under license of the patent owner or as provided by law.
2. Notwithstanding paragraph 1 of this Order, covered articles are entitled to entry
into the United States for consumption, entry for consumption from a foreign-
trade zone, or withdrawal from a warehouse for consumption, under a bond in
the amount of one hundred (100) percent of entered value ofthe products
pursuant to subsection (j) of section 337(19 U.S.C. § 1337(j)), and the
Presidential Memorandum for the United States Trade Representative of July 21,
2005 (70 Fed Reg. 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
2
receipt ofthis Order. All entries ofcovered articles made pursuant to this
paragraph are to be reported to U.S. Customs and Border Protection("CBP"),in
advance ofthe 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 covered articles that are potentially subject to this Order may
be required to certify that they are familiar with the terms of this Order, that
they have made appropriate inquiry, and thereupon state that, to the best of their
knowledge and belief, the products being imported are not excluded from entry
under paragraph 1 of this Order. At its discretion, CBP may require persons who
have provided the certification described in this paragraph to furnish such
records or analyses as are necessary to substantiate the certification.
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 of the Commission's Rules of Practice and
Procedure(19 C.F.R. § 210.76).
6. The Commission Secretary shall serve copies of this Order upon each party of
record in this investigation and upon CBP.
7. Notice ofthis Order shall be published in the Federal Register.
3
By order of the Commission.
Ooot)Lisa R. Barton
Secretary to the Commission
Issued: January 22, 2020
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND Inv. No.337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order, Commission has been served
by hand upon the Commission Investigative Attorney, Andrew Beverina,Esq., and the
following parties as indicated, on January 22,2020.
On Behalf of Complainants Varidesk LLC:
Adam R. Hess, Esq.
SQUIRE PATTON BOGGS
2550 M Street, NW
Washington D.C. 20037
Respondents:
Albeit LLC
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902,Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
El Monte, CA 91731
'	19	60	.	5:Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
CI Via Hand Delivery
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CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
COMPONENTS THEREOF
Certificate of Service — Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo,Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd.
4th Floor, Building B,Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk, LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
No. 168 Xici 5th Rd.
Mechanical Industrial Zone
Wuhu, Anhui, China
5
Inv. No.337-TA-1125
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UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington,D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE
DESK PLATFORMS AND
COMPONENTS THEREOF
Investigation No.337-TA-1125
CEASE AND DESIST ORDER
IT IS HEREBY ORDERED THAT Respondent Smugdesk, LLC cease and desist from
conducting any of the following activities in the United States: importing, selling, marketing,
advertising, distributing, transferring (except for exportation), soliciting United States agents or
distributors, and aiding or abetting other entities in the importation, sale for importation, sale
after importation, transfer (except for exportation), or distribution of desk platforms that sit on an
existing desk or work surface and can be adjusted to different heights that infringe one or more
of claims 1, 2,4, 10, and 11 of U.S. Patent No. 9,113,703 (the "703 patent"); claims 11, 16, 18,
and 22-26 of U.S. Patent No. 9,277,809(the "809 patent"); claims 1, 4, 5, 11, 12, 26, and 33-36
of U.S. Patent No. 9,554,644(the'644 patent"); and claims 20, 21, and 40-50 of U.S. Patent
No. 9,924,793 (the'793 patent")("Asserted Patents") in violation of section 337 ofthe Tariff
Act of 1930, as amended (19 U.S.C. § 1337).
I. Definitions
As used in this Order:
(A) "Commission" shall mean the United States International Trade Commission.
(B) "Complainant" shall mean Varidesk LLC of Coppell, Texas.
(C) "Respondent" shall mean Smugdesk, LLC of La Puente, California.
1
(D) "Person" shall mean an individual, or any non-governmental partnership, firm,
association, corporation, or other legal or business entity other than Respondent or
its majority-owned or controlled subsidiaries, successors, or assigns.
(E) "United States" shall mean the fifty States, the District of Columbia, and Puerto
Rico.
(F) The terms "import" and "importation" refer to importation for entry for
consumption under the Customs laws ofthe United States.
(G) The term "covered products" shall mean desk platforms that sit on an existing
desk or work surface and can be adjusted to different heights that infringe one or
more of claims 1, 2, 4, 10, and 11 ofthe '703 patent; claims 11, 16, 18, and 22-26
of the'809 patent; claims 1, 4, 5, 11, 12, 26, and 33-36 ofthe '644 patent; and
claims 20,21, and 40-50 ofthe '793 patent. Covered products shall not include
articles for which a provision oflaw or license avoids liability for infringement.
II. Applicability
The provisions ofthis Cease and Desist Order shall apply to Respondent and to any of its
principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled
(whether by stock ownership or otherwise) and majority-owned business entities, successors, and
assigns, and to each ofthem, insofar as they are engaging in conduct prohibited by Section III,
infra, for, with, or otherwise on behalf of, Respondent.
III. Conduct Prohibited
The following conduct of Respondent in the United States is prohibited by this Order.
For the remaining term ofthe Assertive Patents, Respondent shall not:
(A) import or sell for importation into the United States covered products;
2
(B) market, distribute, sell, or otherwise transfer(except for exportation)imported
covered products;
(C) advertise imported covered products;
(D) solicit United States agents or distributors for imported covered products; or
(E) aid or abet other entities in the importation, sale for importation, sale after
importation, transfer, or distribution of covered products.
IV. Conduct Permitted
Notwithstanding any other provision ofthis Order, specific conduct otherwise prohibited
by the terms of this Order shall be permitted if:
(A)in a written instrument, the owner of the Asserted Patents licenses or authorizes such
specific conduct; or
(B)such specific conduct is related to the importation or sale of covered products by or
for the United States.
V. Reporting
For purposes ofthis requirement, the reporting periods shall commence on January 1 of
each year and shall end on the subsequent December 31. The first report required under this
section shall cover the period from the date of issuance ofthis order through December 31, 2020.
This reporting requirement shall continue in force until such time as Respondent has truthfully
reported, in two consecutive timely filed reports, that it has no inventory of covered products in
the United States.
Within thirty (30)days ofthe last day ofthe reporting period, Respondent shall report to
the Commission(a)the quantity in units and the value in dollars of covered products that it has
3
(i) imported and/or (ii) sold in the United States after importation during the reporting period,
and (b)the quantity in units and value in dollars of reported covered products that remain in
inventory in the United States at the end ofthe reporting period.
When filing written submissions, Respondent must file the original document
electronically on or before the deadlines stated above and submit eight(8)true paper copies to
the Office of the Secretary by noon the next day pursuant to subsection 210.4(f)ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.4(0). Submissions should refer
to the investigation number("Inv. No. 337-TA-1125")in a prominent place on the cover pages
and/or the first page. (See Handbook for Electronic Filing Procedures,
https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000). If Respondent desires to submit a
document to the Commission in confidence, it must file the original and a public version ofthe
original with the Office of the Secretary and must serve a copy ofthe confidential version on
Complainant's counsel.'
Any failure to make the required report or the filing ofany false or inaccurate report shall
constitute a violation ofthis Order, and the submission of a false or inaccurate report may be
referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. § 1001.
VI. Record-Keeping and Inspection
(A) For the purpose of securing compliance with this Order, Respondent shall retain
any and all records relating to the sale, offer for sale, marketing, or distribution in
Complainant must file a letter with the Secretary identifying the attorney to receive reports and
bond information associated with this order. The designated attorney must be on the protective
order entered in the investigation.
4
the United States of covered products, made and received in the usual and
ordinary course of business, whether in detail or in summary form,for a period of
three(3) years from the close ofthe fiscal year to which they pertain.
(B) For the purposes of determining or securing compliance with this Order and for
no other purpose, subject to any privilege recognized by the federal courts ofthe
United States, and upon reasonable written notice by the Commission or its staff,
duly authorized representatives ofthe Commission shall be permitted access and
the right to inspect and copy, in Respondent's principal offices during office
hours, and in the presence of counsel or other representatives if Respondent so
chooses, all books, ledgers, accounts, correspondence, memoranda, and other
records and documents, in detail and in summary form, that must be retained
under subparagraph VI(A)of this Order.
VII. Service of Cease and Desist Order
Respondent is ordered and directed to:
(A) Serve, within fifteen (15)days after the effective date of this Order, a copy ofthis
Order upon each of its respective officers, directors, managing agents, agents, and
employees who have any responsibility for the importation, marketing,
distribution, or sale of imported covered products in the United States;
(B) Serve, within fifteen(15) days after the succession of any persons referred to in
subparagraph VII(A)ofthis order, a copy of the Order upon each successor; and
(C) Maintain such records as will show the name,title, and address of each person
upon whom the Order has been served, as described in subparagraphs VII(A)and
VII(B)ofthis Order, together with the date on which service was made.
5
The obligations set forth in subparagraphs VII(B)and VII(C) shall remain in effect until
the expiration dates ofthe Asserted Patents.
VIII. Confidentiality
Any request for confidential treatment of information obtained by the Commission
pursuant to Section V or VI of this Order should be made in accordance with section 201.6 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 201.6). For all reports for which
confidential treatment is sought, Respondent must provide a public version of such report with
confidential information redacted.
IX. Enforcement
Violation ofthis Order may result in any ofthe actions specified in section 210.75 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.75), including an action for
civil penalties under subsection 337(f)ofthe Tariff Act of 1930(19 U.S.C. § 1337(0), as well as
any other action that the Commission deems appropriate. In determining whether Respondent is
in violation ofthis Order, the Commission may infer facts adverse to Respondent if it fails to
provide adequate or timely information.
X. Modification
The Commission may amend this Order on its own motion or in accordance with the
procedure described in section 210.76 ofthe Commission's Rules of Practice and Procedure(19
C.F.R. § 210.76).
XI. Bonding
The conduct prohibited by Section III ofthis Order may be continued during the sixty
(60)day period in which this Order is under review by the United States Trade Representative,
6
as delegated by the President(70 Fed. Reg. 43,251 (Jul. 21, 2005)), subject to Respondent
posting of a bond in the amount of one hundred (100) percent ofthe entered value of the covered
products. This bond provision does not apply to conduct that is otherwise permitted by Section
IV of this Order. Covered products imported on or after the date of issuance of this Order are
subject to the entry bond set forth in the exclusion order issued by the Commission, and are not
subject to this bond provision.
The bond is to be posted in accordance with the procedures established by the
Commission for the posting of bonds by complainant in connection with the issuance of
temporary exclusion orders. (See 19 C.F.R. § 210.68). The bond and any accompanying
documentation are to be provided to and approved by the Commission prior to the
commencement of conduct that is otherwise prohibited by Section III ofthis Order. Upon the
Secretary's acceptance of the bond,(a)the Secretary will serve an acceptance letter on all
parties, and (b)Respondent must serve a copy of the bond and any accompanying documentation
on Complainant's counse1.2
The bond is to be forfeited in the event that the United States Trade Representative
approves this Order(or does not disapprove it within the review period), unless (i) the U.S. Court
of Appeals for the Federal Circuit, in a final judgment, reverses any Commission final
determination and order as to Respondent on appeal, or (ii) Respondent exports or destroys the
products subject to this bond and provides certification to that effect that is satisfactory to the
Commission.
The bond is to be released in the event the United States Trade Representative
disapproves this Order and no subsequent order is issued by the Commission and approved (or
2 See note 1 above.
7
not disapproved) by the United States Trade Representative, upon service on Respondent ofan
order issued by the Commission based upon application therefore made by Respondent to the
Commission.
By order of the Commission.
Issued: January 22, 2020
8
Lisa R. Barton
Secretary to the Commission
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND Inv. No.337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order, Commission has been served
by hand upon the Commission Investigative Attorney, Andrew Beverina, Esq., and the
following parties as indicated, on January 22,2020.
On Behalf of Complainants Varidesk LLC:
Adam R. Hess, Esq.
SQUIRE PATTON BOGGS
2550 M Street, NW
Washington D.C. 20037
Respondents:
Albeit LLC
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902,Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
El Monte, CA 91731
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
•Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
CE Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
CZ Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
1:E1 Via Express Delivery
O Via First Class Mail
O Other:
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
COMPONENTS THEREOF
Certificate of Service — Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo,Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd.
4th Floor, Building B,Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk,LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
No. 168 Xici 5th Rd.
Mechanical Industrial Zone
Wuhu,Anhui, China
Inv. No.337-TA-1125
O Via Hand Delivery
CE Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
CE Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
Via Express Delivery
O Via First Class Mail
O Other:
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IZ Via Express Delivery
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O Other:
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O Other:
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IZ Via Express Delivery
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O Other:
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El Via Express Delivery
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O Other:
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE
DESK PLATFORMS AND
COMPONENTS THEREOF
Investigation No.337-TA-1125
CEASE AND DESIST ORDER
IT IS HEREBY ORDERED THAT Respondents JV Products Inc., Vanson
Distributing, Inc., and Vanson Group, Inc. cease and desist from conducting any ofthe following
activities in the United States: importing, selling, marketing, advertising, distributing,
transferring (except for exportation), soliciting United States agents or distributors, and aiding or
abetting other entities in the importation, sale for importation, sale after importation, transfer
(except for exportation), or distribution of desk platforms that sit on an existing desk or work
surface and can be adjusted to different heights that infringe one or more ofclaims 1, 2,4, 10,
and 11 of U.S. Patent No. 9,113,703 (the "703 patent"); claims 11, 16, 18, and 22-26 of U.S.
Patent No. 9,277,809(the "809 patent"); claims 1, 4, 5, 11, 12, 26, and 33-36 of U.S. Patent No.
9,554,644 (the'644 patent"); and claims 20, 21, and 40-50 of U.S. Patent No. 9,924,793 (the
"793 patent")("Asserted Patents") in violation of section 337 ofthe Tariff Act of 1930, as
amended (19 U.S.C. § 1337).
I. Definitions
As used in this Order:
(A) "Commission" shall mean the United States International Trade Commission.
(B) "Complainant" shall mean Varidesk LLC of Coppell, Texas.
1
(C) "Respondents" shall mean JV Products Inc., Vanson Distributing, Inc., and
Vanson Group, Inc., all of Milpitas, California.
(D) "Person" shall mean an individual, or any non-governmental partnership, firm,
association, corporation, or other legal or business entity other than Respondents
or its majority-owned or controlled subsidiaries, successors, or assigns.
(E) "United States" shall mean the fifty States, the District of Columbia, and Puerto
Rico.
(F) The terms "import" and "importation" refer to importation for entry for
consumption under the Customs laws ofthe United States.
(G) The term "covered products" shall mean desk platforms that sit on an existing
desk or work surface and can be adjusted to different heights that infringe one or
more of claims 1, 2,4, 10, and 11 ofthe '703 patent; claims 11, 16, 18, and 22-26
ofthe'809 patent; claims 1, 4, 5, 11, 12, 26, and 33-36 ofthe '644 patent; and
claims 20, 21, and 40-50 ofthe '793 patent. Covered products shall not include
articles for which a provision oflaw or license avoids liability for infringement.
II. Applicability
The provisions ofthis Cease and Desist Order shall apply to Respondents and to any of
their principals, stockholders, officers, directors, employees, agents, licensees, distributors,
controlled (whether by stock ownership or otherwise)and majority-owned business entities,
successors, and assigns, and to each ofthem, insofar as they are engaging in conduct prohibited
by Section III, infra, for, with, or otherwise on behalf of, Respondents.
2
III. Conduct Prohibited
The following conduct of Respondents in the United States is prohibited by this Order.
For the remaining term of the Assertive Patents, Respondents shall not:
(A) import or sell for importation into the United States covered products;
(B) market, distribute, sell, or otherwise transfer(except for exportation) imported
covered products;
(C) advertise imported covered products;
(D) solicit United States agents or distributors for imported covered products; or
(E) aid or abet other entities in the importation, sale for importation, sale after
importation, transfer, or distribution of covered products.
IV. Conduct Permitted
Notwithstanding any other provision ofthis Order, specific conduct otherwise prohibited
by the terms of this Order shall be permitted if:
(A)in a written instrument, the owner of the Asserted Patents licenses or authorizes such
specific conduct; or
(B)such specific conduct is related to the importation or sale ofcovered products by or
for the United States.
V. Reporting
For purposes ofthis requirement, the reporting periods shall commence on January 1 of
each year and shall end on the subsequent December 31. The first report required under this
section shall cover the period from the date of issuance ofthis order through December 31, 2020.
This reporting requirement shall continue in force until such time as Respondents have truthfully
3
reported, in two consecutive timely filed reports, that it has no inventory of covered products in
the United States.
Within thirty(30)days of the last day ofthe reporting period, Respondents shall report to
the Commission (a)the quantity in units and the value in dollars of covered products that it has
(i)imported and/or (ii) sold in the United States after importation during the reporting period,
and(b)the quantity in units and value in dollars of reported covered products that remain in
inventory in the United States at the end ofthe reporting period.
When filing written submissions, Respondents must file the original document
electronically on or before the deadlines stated above and submit eight(8)true paper copies to
the Office of the Secretary by noon the next day pursuant to subsection 210.4(0 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.4(0). Submissions should refer
to the investigation number ("Inv. No. 337-TA-1125") in a prominent place on the cover pages
and/or the first page. (See Handbook for Electronic Filing Procedures,
https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000). If Respondents desire to submit a
document to the Commission in confidence, it must file the original and a public version ofthe
original with the Office ofthe Secretary and must serve a copy ofthe confidential version on
Complainant's counsel.'
Any failure to make the required report or the filing of any false or inaccurate report shall
constitute a violation of this Order, and the submission of a false or inaccurate report may be
referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. § 1001.
'Complainant must file a letter with the Secretary identifying the attorney to receive reports and
bond information associated with this order. The designated attorney must be on the protective
order entered in the investigation.
4
VI. Record-Keeping and Inspection
(A) For the purpose of securing compliance with this Order, Respondents shall retain
any and all records relating to the sale, offer for sale, marketing, or distribution in
the United States of covered products, made and received in the usual and
ordinary course of business, whether in detail or in summary form,for a period of
three(3) years from the close ofthe fiscal year to which they pertain.
(B) For the purposes of determining or securing compliance with this Order and for
no other purpose, subject to any privilege recognized by the federal courts ofthe
United States, and upon reasonable written notice by the Commission or its staff,
duly authorized representatives ofthe Commission shall be permitted access and
the right to inspect and copy, in Respondents' principal offices during office
hours, and in the presence of counsel or other representatives if Respondents so
choose, all books, ledgers, accounts, correspondence, memoranda, and other
records and documents, in detail and in summary form, that must be retained
under subparagraph VI(A)of this Order.
VII. Service of Cease and Desist Order
Respondents are ordered and directed to:
(A) Serve, within fifteen (15)days after the effective date ofthis Order, a copy ofthis
Order upon each of its respective officers, directors, managing agents, agents, and
employees who have any responsibility for the importation, marketing,
distribution, or sale ofimported covered products in the United States;
(B) Serve, within fifteen (15)days after the succession of any persons referred to in
subparagraph VII(A)ofthis order, a copy ofthe Order upon each successor; and
5
(C) Maintain such records as will show the name, title, and address of each person
upon whom the Order has been served, as described in subparagraphs VII(A)and
VII(B)ofthis Order, together with the date on which service was made.
The obligations set forth in subparagraphs VII(B)and VII(C) shall remain in effect until
the expiration dates of the Asserted Patents.
VIII. Confidentiality
Any request for confidential treatment ofinformation obtained by the Commission
pursuant to Section V or VI ofthis Order should be made in accordance with section 201.6 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 201.6). For all reports for which
confidential treatment is sought, Respondents must provide a public version of such report with
confidential information redacted.
IX. Enforcement
Violation of this Order may result in any ofthe actions specified in section 210.75 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.75), including an action for
civil penalties under subsection 337(f) ofthe Tariff Act of 1930(19 U.S.C. § 1337(0), as well as
any other action that the Commission deems appropriate. In determining whether Respondents
are in violation ofthis Order, the Commission may infer facts adverse to Respondents if they fail
to provide adequate or timely information.
X. Modification
The Commission may amend this Order on its own motion or in accordance with the
procedure described in section 210.76 ofthe Commission's Rules of Practice and Procedure(19
C.F.R. § 210.76).
6
XI. Bonding
The conduct prohibited by Section III ofthis Order may be continued during the sixty
(60)day period in which this Order is under review by the United States Trade Representative,
as delegated by the President(70 Fed. Reg. 43,251 (Jul. 21, 2005)), subject to Respondents
posting of a bond in the amount of one hundred (100) percent ofthe entered value ofthe covered
products. This bond provision does not apply to conduct that is otherwise permitted by Section
IV ofthis Order. Covered products imported on or after the date of issuance ofthis Order are
subject to the entry bond set forth in the exclusion order issued by the Commission, and are not
subject to this bond provision.
The bond is to be posted in accordance with the procedures established by the
Commission for the posting of bonds by complainant in connection with the issuance of
temporary exclusion orders. (See 19 C.F.R. § 210.68). The bond and any accompanying
documentation are to be provided to and approved by the Commission prior to the
commencement of conduct that is otherwise prohibited by Section III ofthis Order. Upon the
Secretary's acceptance of the bond,(a)the Secretary will serve an acceptance letter on all
parties, and(b)Respondents must serve a copy ofthe bond and any accompanying
documentation on Complainant's counse1.2
The bond is to be forfeited in the event that the United States Trade Representative
approves this Order(or does not disapprove it within the review period), unless (i)the U.S. Court
of Appeals for the Federal Circuit, in a final judgment, reverses any Commission final
determination and order as to Respondents on appeal, or (ii) Respondents export or destroy the
2 See note 1 above.
7
products subject to this bond and provide certification to that effect that is satisfactory to the
Commission.
The bond is to be released in the event the United States Trade Representative
disapproves this Order and no subsequent order is issued by the Commission and approved (or
not disapproved) by the United States Trade Representative, upon service on Respondents of an
order issued by the Commission based upon application therefore made by Respondents to the
Commission.
By order ofthe Commission.
Issued: January 22, 2020
8
0)alptLisa R. Barton
Secretary to the Commission
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND Inv. No.337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order,Commission has been served
by hand upon the Commission Investigative Attorney, Andrew Beverina,Esq., and the
following parties as indicated, on January 22,2020.
On Behalf of Complainants Varidesk LLC:
Adam R. Hess, Esq.
SQUIRE PATTON BOGGS
2550 M Street, NW
Washington D.C. 20037
Respondents:
Albeit LLC
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902,Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
El Monte, CA 91731
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
1=1 Via Hand Delivery
El Via Express Delivery
0 Via First Class Mail
O Other:
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
CE Via Express Delivery
O Via First Class Mail
O Other:
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
COMPONENTS THEREOF
Certificate of Service — Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo,Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd.
4th Floor, Building B,Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk,LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
No. 168 Xici 5th Rd.
Mechanical Industrial Zone
Wuhu,Anhui, China
Inv. No.337-TA-1125
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
01 Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
Eg Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
CO Via Express Delivery
O Via First Class Mail
O Other:
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O Other:
O Via Hand Delivery
O Via Express Delivery
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O Other:
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE
DESK PLATFORMS AND
COMPONENTS THEREOF
Investigation No.337-TA-1125
CEASE AND DESIST ORDER
IT IS HEREBY ORDERED THAT Respondent ATC Supply LLC cease and desist
from conducting any of the following activities in the United States: importing, selling,
marketing, advertising, distributing, transferring (except for exportation), soliciting United States
agents or distributors, and aiding or abetting other entities in the importation, sale for
importation, sale after importation, transfer (except for exportation), or distribution of desk
platforms that sit on an existing desk or work surface and can be adjusted to different heights that
infringe one or more of claims 1, 2, 4, 10, and 11 of U.S. Patent No. 9,113,703 (the "703
patent"); claims 11, 16, 18, and 22-26 of U.S. Patent No. 9,277,809(the "809 patent"); claims 1,
4, 5, 11, 12, 26, and 33-36 of U.S. Patent No. 9,554,644 (the'644 patent"); and claims 20, 21,
and 40-50 of U.S. Patent No. 9,924,793 (the'793 patent")("Asserted Patents")in violation of
section 337 ofthe Tariff Act of 1930, as amended (19 U.S.C. § 1337).
I. Definitions
As used in this Order:
(A) "Commission" shall mean the United States International Trade Commission.
(B) "Complainant" shall mean Varidesk LLC of Coppell, Texas.
(C) "Respondent" shall mean ATC Supply LLC of Plainfield, Illinois.
1
(D) "Person" shall mean an individual, or any non-governmental partnership, firm,
association, corporation, or other legal or business entity other than Respondent or
its majority-owned or controlled subsidiaries, successors, or assigns.
(E) "United States" shall mean the fifty States, the District of Columbia, and Puerto
Rico.
(F) The terms "import" and "importation" refer to importation for entry for
consumption under the Customs laws ofthe United States.
(G) The term "covered products" shall mean desk platforms that sit on an existing
desk or work surface and can be adjusted to different heights that infringe one or
more of claims 1, 2,4, 10, and 11 ofthe '703 patent; claims 11, 16, 18, and 22-26
ofthe'809 patent; claims 1, 4, 5, 11, 12, 26, and 33-36 ofthe '644 patent; and
claims 20, 21, and 40-50 ofthe '793 patent. Covered products shall not include
articles for which a provision oflaw or license avoids liability for infringement.
II. Applicability
The provisions ofthis Cease and Desist Order shall apply to Respondent and to any of its
principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled
(whether by stock ownership or otherwise) and majority-owned business entities, successors, and
assigns, and to each ofthem, insofar as they are engaging in conduct prohibited by Section III,
infra, for, with, or otherwise on behalf of, Respondent.
III. Conduct Prohibited
The following conduct of Respondent in the United States is prohibited by this Order.
For the remaining term ofthe Assertive Patents, Respondent shall not:
(A) import or sell for importation into the United States covered products;
2
(B) market, distribute, sell, or otherwise transfer (except for exportation) imported
covered products;
(C) advertise imported covered products;
(D) solicit United States agents or distributors for imported covered products; or
(E) aid or abet other entities in the importation, sale for importation, sale after
importation, transfer, or distribution of covered products.
IV. Conduct Permitted
Notwithstanding any other provision ofthis Order, specific conduct otherwise prohibited
by the terms of this Order shall be permitted if:
(A)in a written instrument, the owner ofthe Asserted Patents licenses or authorizes such
specific conduct; or
(B)such specific conduct is related to the importation or sale of covered products by or
for the United States.
V. Reporting
For purposes ofthis requirement, the reporting periods shall commence on January 1 of
each year and shall end on the subsequent December 31. The first report required under this
section shall cover the period from the date ofissuance ofthis order through December 31,2020.
This reporting requirement shall continue in force until such time as Respondent has truthfully
reported, in two consecutive timely filed reports, that it has no inventory of covered products in
the United States.
Within thirty(30)days ofthe last day of the reporting period, Respondent shall report to
the Commission (a)the quantity in units and the value in dollars of covered products that it has
3
(i)imported and/or (ii) sold in the United States after importation during the reporting period,
and(b)the quantity in units and value in dollars of reported covered products that remain in
inventory in the United States at the end ofthe reporting period.
When filing written submissions, Respondent must file the original document
electronically on or before the deadlines stated above and submit eight(8)true paper copies to
the Office ofthe Secretary by noon the next day pursuant to subsection 210.4(f) of the
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.4(0). Submissions should refer
to the investigation number("Inv. No. 337-TA-1125")in a prominent place on the cover pages
and/or the first page. (See Handbook for Electronic Filing Procedures,
https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000). If Respondent desires to submit a
document to the Commission in confidence, it must file the original and a public version ofthe
original with the Office of the Secretary and must serve a copy ofthe confidential version on
Complainant's counsel.'
Any failure to make the required report or the filing of any false or inaccurate report shall
constitute a violation ofthis Order, and the submission of a false or inaccurate report may be
referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. § 1001.
VI. Record-Keeping and Inspection
(A) For the purpose of securing compliance with this Order, Respondent shall retain
any and all records relating to the sale, offer for sale, marketing, or distribution in
'Complainant must file a letter with the Secretary identifying the attorney to receive reports and
bond information associated with this order. The designated attorney must be on the protective
order entered in the investigation.
4
the United States of covered products, made and received in the usual and
ordinary course of business, whether in detail or in summary form,for a period of
three (3) years from the close ofthe fiscal year to which they pertain.
(B) For the purposes of determining or securing compliance with this Order and for
no other purpose, subject to any privilege recognized by the federal courts ofthe
United States, and upon reasonable written notice by the Commission or its staff,
duly authorized representatives ofthe Commission shall be permitted access and
the right to inspect and copy, in Respondent's principal offices during office
hours, and in the presence of counsel or other representatives if Respondent so
chooses, all books, ledgers, accounts, correspondence, memoranda, and other
records and documents, in detail and in summary form,that must be retained
under subparagraph VI(A)ofthis Order.
VII. Service of Cease and Desist Order
Respondent is ordered and directed to:
(A) Serve, within fifteen (15) days after the effective date ofthis Order, a copy ofthis
Order upon each of its respective officers, directors, managing agents, agents, and
employees who have any responsibility for the importation, marketing,
distribution, or sale of imported covered products in the United States;
(B) Serve, within fifteen(15)days after the succession of any persons referred to in
subparagraph VII(A)of this order, a copy ofthe Order upon each successor; and
(C) Maintain such records as will show the name, title, and address of each person
upon whom the Order has been served, as described in subparagraphs VII(A)and
VII(B)of this Order, together with the date on which service was made.
5
The obligations set forth in subparagraphs VII(B)and VII(C)shall remain in effect until
the expiration dates ofthe Asserted Patents.
VIII. Confidentiality
Any request for confidential treatment ofinformation obtained by the Commission
pursuant to Section V or VI ofthis Order should be made in accordance with section 201.6 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 201.6). For all reports for which
confidential treatment is sought, Respondent must provide a public version of such report with
confidential information redacted.
IX. Enforcement
Violation ofthis Order may result in any of the actions specified in section 210.75 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.75), including an action for
civil penalties under subsection 337(f)ofthe Tariff Act of 1930(19 U.S.C. § 1337(f)), as well as
any other action that the Commission deems appropriate. In determining whether Respondent is
in violation ofthis Order, the Commission may infer facts adverse to Respondent if it fails to
provide adequate or timely information.
X. Modification
The Commission may amend this Order on its own motion or in accordance with the
procedure described in section 210.76 of the Commission's Rules of Practice and Procedure(19
C.F.R. § 210.76).
XI. Bonding
The conduct prohibited by Section III ofthis Order may be continued during the sixty
(60)day period in which this Order is under review by the United States Trade Representative,
6
as delegated by the President(70 Fed. Reg. 43,251 (Jul. 21, 2005)), subject to Respondent
posting of a bond in the amount of one hundred(100)percent ofthe entered value ofthe covered
products. This bond provision does not apply to conduct that is otherwise permitted by Section
IV ofthis Order. Covered products imported on or after the date of issuance ofthis Order are
subject to the entry bond set forth in the exclusion order issued by the Commission, and are not
subject to this bond provision.
The bond is to be posted in accordance with the procedures established by the
Commission for the posting of bonds by complainant in connection with the issuance of
temporary exclusion orders. (See 19 C.F.R. § 210.68). The bond and any accompanying
documentation are to be provided to and approved by the Commission prior to the
commencement of conduct that is otherwise prohibited by Section III ofthis Order. Upon the
Secretary's acceptance of the bond,(a)the Secretary will serve an acceptance letter on all
parties, and(b)Respondent must serve a copy ofthe bond and any accompanying documentation
on Complainant's counse1.2
The bond is to be forfeited in the event that the United States Trade Representative
approves this Order(or does not disapprove it within the review period), unless (i) the U.S. Court
of Appeals for the Federal Circuit, in a final judgment, reverses any Commission final
determination and order as to Respondent on appeal, or (ii) Respondent exports or destroys the
products subject to this bond and provides certification to that effect that is satisfactory to the
Commission.
The bond is to be released in the event the United States Trade Representative
disapproves this Order and no subsequent order is issued by the Commission and approved (or
2 See note 1 above.
7
not disapproved) by the United States Trade Representative, upon service on Respondent ofan
order issued by the Commission based upon application therefore made by Respondent to the
Commission.
By order ofthe Commission.
Issued: January 22, 2020
8
011)Lisa R. Barton
Secretary to the Commission
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND Inv. No.337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order, Commission has been served
by hand upon the Commission Investigative Attorney, Andrew Beverina, Esq., and the
following parties as indicated, on January 22,2020.
On Behalf of Complainants Varidesk LLC:
Adam R. Hess, Esq.
SQUIRE PATTON BOGGS
2550 M Street, NW
Washington D.C. 20037
Respondents:
Albeit LLC
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902,Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
El Monte, CA 91731
0	:	0	54D
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
El Via Hand Delivery
CEI Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
21 Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
CZ Via Express Delivery
O Via First Class Mail
O Other:
El Via Hand Delivery
Via Express Delivery
O Via First Class Mail
O Other:
114
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
COMPONENTS THEREOF
Certificate of Service — Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo,Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd.
4th Floor, Building B,Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk,LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
No. 168 Xici 5th Rd.
Mechanical Industrial Zone
Wuhu,Anhui, China
Inv. No.337-TA-1125
0 Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
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CE Via Express Delivery
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O Other:
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O Other:
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O Other:
O Via Hand Delivery
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O Via First Class Mail
O Other:
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington,D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE
DESK PLATFORMS AND
COMPONENTS THEREOF
Investigation No.337-TA-1125
CEASE AND DESIST ORDER
IT IS HEREBY ORDERED THAT Respondent Amazon Import Inc. cease and desist
from conducting any ofthe following activities in the United States: importing, selling,
marketing, advertising, distributing, transferring (except for exportation), soliciting United States
agents or distributors, and aiding or abetting other entities in the importation, sale for
importation, sale after importation, transfer (except for exportation), or distribution of desk
platforms that sit on an existing desk or work surface and can be adjusted to different heights that
infringe one or more of claims 1, 2, 4, 10, and 11 of U.S. Patent No. 9,113,703 (the "703
patent"); claims 11, 16, 18, and 22-26 of U.S. Patent No. 9,277,809(the "809 patent"); claims 1,
4, 5, 11, 12, 26, and 33-36 of U.S. Patent No. 9,554,644(the'644 patent"); and claims 20,21,
and 40-50 of U.S. Patent No. 9,924,793 (the'793 patent")("Asserted Patents") in violation of
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337).
I. Definitions
As used in this Order:
(A) "Commission" shall mean the United States International Trade Commission.
(B) "Complainant" shall mean Varidesk LLC of Coppell, Texas.
(C) "Respondent" shall mean Amazon Import Inc. of El Monte, California.
1
(D) "Person" shall mean an individual, or any non-governmental partnership, firm,
association, corporation, or other legal or business entity other than Respondent or
its majority-owned or controlled subsidiaries, successors, or assigns.
(E) "United States" shall mean the fifty States, the District of Columbia, and Puerto
Rico.
(F) The terms "import" and "importation" refer to importation for entry for
consumption under the Customs laws ofthe United States.
(G) The term "covered products" shall mean desk platforms that sit on an existing
desk or work surface and can be adjusted to different heights that infringe one or
more of claims 1, 2,4, 10, and 11 ofthe '703 patent; claims 11, 16, 18, and 22-26
ofthe'809 patent; claims 1, 4, 5, 11, 12, 26, and 33-36 ofthe '644 patent; and
claims 20, 21, and 40-50 ofthe '793 patent. Covered products shall not include
articles for which a provision oflaw or license avoids liability for infringement.
II. Applicability
The provisions ofthis Cease and Desist Order shall apply to Respondent and to any of its
principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled
(whether by stock ownership or otherwise) and majority-owned business entities, successors, and
assigns, and to each of them, insofar as they are engaging in conduct prohibited by Section III,
infra, for, with, or otherwise on behalf of, Respondent.
III. Conduct Prohibited
The following conduct of Respondent in the United States is prohibited by this Order.
For the remaining term ofthe Assertive Patents, Respondent shall not:
(A) import or sell for importation into the United States covered products;
2
(B) market, distribute, sell, or otherwise transfer(except for exportation)imported
covered products;
(C) advertise imported covered products;
(D) solicit United States agents or distributors for imported covered products; or
(E) aid or abet other entities in the importation, sale for importation, sale after
importation, transfer, or distribution of covered products.
IV. Conduct Permitted
Notwithstanding any other provision ofthis Order, specific conduct otherwise prohibited
by the terms ofthis Order shall be permitted if:
(A)in a written instrument, the owner ofthe Asserted Patents licenses or authorizes such
specific conduct; or
(B)such specific conduct is related to the importation or sale of covered products by or
for the United States.
V. Reporting
For purposes of this requirement, the reporting periods shall commence on January 1 of
each year and shall end on the subsequent December 31. The first report required under this
section shall cover the period from the date ofissuance of this order through December 31, 2020.
This reporting requirement shall continue in force until such time as Respondent has truthfully
reported, in two consecutive timely filed reports, that it has no inventory of covered products in
the United States.
Within thirty(30)days ofthe last day ofthe reporting period, Respondent shall report to
the Commission(a)the quantity in units and the value in dollars ofcovered products that it has
3
(i) imported and/or (ii) sold in the United States after importation during the reporting period,
and (b)the quantity in units and value in dollars of reported covered products that remain in
inventory in the United States at the end ofthe reporting period.
When filing written submissions, Respondent must file the original document
electronically on or before the deadlines stated above and submit eight(8)true paper copies to
the Office ofthe Secretary by noon the next day pursuant to subsection 210.4(f) ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.4(f)). Submissions should refer
to the investigation number("Inv. No. 337-TA-1125")in a prominent place on the cover pages
and/or the first page. (See Handbook for Electronic Filing Procedures,
https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000). If Respondent desires to submit a
document to the Commission in confidence, it must file the original and a public version ofthe
original with the Office ofthe Secretary and must serve a copy ofthe confidential version on
Complainant's counsel.'
Any failure to make the required report or the filing ofany false or inaccurate report shall
constitute a violation of this Order, and the submission of a false or inaccurate report may be
referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. § 1001.
VI. Record-Keeping and Inspection
(A) For the purpose of securing compliance with this Order, Respondent shall retain
any and all records relating to the sale, offer for sale, marketing, or distribution in
1 Complainant must file a letter with the Secretary identifying the attorney to receive reports and
bond information associated with this order. The designated attorney must be on the protective
order entered in the investigation.
4
the United States of covered products, made and received in the usual and
ordinary course of business, whether in detail or in summary form,for a period of
three(3) years from the close of the fiscal year to which they pertain.
(B) For the purposes of determining or securing compliance with this Order and for
no other purpose, subject to any privilege recognized by the federal courts ofthe
United States, and upon reasonable written notice by the Commission or its staff,
duly authorized representatives of the Commission shall be permitted access and
the right to inspect and copy, in Respondent's principal offices during office
hours, and in the presence of counsel or other representatives if Respondent so
chooses, all books, ledgers, accounts, correspondence, memoranda, and other
records and documents, in detail and in summary form, that must be retained
under subparagraph VI(A)ofthis Order.
VII. Service of Cease and Desist Order
Respondent is ordered and directed to:
(A) Serve, within fifteen(15)days after the effective date ofthis Order, a copy ofthis
Order upon each of its respective officers, directors, managing agents, agents, and
employees who have any responsibility for the importation, marketing,
distribution, or sale of imported covered products in the United States;
(B) Serve, within fifteen (15)days after the succession of any persons referred to in
subparagraph VII(A)ofthis order, a copy ofthe Order upon each successor; and
(C) Maintain such records as will show the name,title, and address of each person
upon whom the Order has been served, as described in subparagraphs VII(A)and
VII(B)ofthis Order, together with the date on which service was made.
5
The obligations set forth in subparagraphs VII(B) and VII(C) shall remain in effect until
the expiration dates of the Asserted Patents.
VIII. Confidentiality
Any request for confidential treatment of information obtained by the Commission
pursuant to Section V or VI ofthis Order should be made in accordance with section 201.6 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 201.6). For all reports for which
confidential treatment is sought, Respondent must provide a public version of such report with
confidential information redacted.
IX. Enforcement
Violation of this Order may result in any of the actions specified in section 210.75 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.75), including an action for
civil penalties under subsection 337(f) ofthe Tariff Act of 1930(19 U.S.C. § 1337(0), as well as
any other action that the Commission deems appropriate. In determining whether Respondent is
in violation ofthis Order, the Commission may infer facts adverse to Respondent if it fails to
provide adequate or timely information.
X. Modification
The Commission may amend this Order on its own motion or in accordance with the
procedure described in section 210.76 ofthe Commission's Rules of Practice and Procedure(19
C.F.R. § 210.76).
XI. Bonding
The conduct prohibited by Section III ofthis Order may be continued during the sixty
(60)day period in which this Order is under review by the United States Trade Representative,
6
as delegated by the President(70 Fed Reg. 43,251 (Jul. 21, 2005)), subject to Respondent
posting of a bond in the amount of one hundred(100)percent ofthe entered value ofthe covered
products. This bond provision does not apply to conduct that is otherwise permitted by Section
IV ofthis Order. Covered products imported on or after the date of issuance ofthis Order are
subject to the entry bond set forth in the exclusion order issued by the Commission, and are not
subject to this bond provision.
The bond is to be posted in accordance with the procedures established by the
Commission for the posting of bonds by complainant in connection with the issuance of
temporary exclusion orders. (See 19 C.F.R. § 210.68). The bond and any accompanying
documentation are to be provided to and approved by the Commission prior to the
commencement of conduct that is otherwise prohibited by Section III ofthis Order. Upon the
Secretary's acceptance ofthe bond,(a)the Secretary will serve an acceptance letter on all
parties, and(b)Respondent must serve a copy ofthe bond and any accompanying documentation
on Complainant's counse1.2
The bond is to be forfeited in the event that the United States Trade Representative
approves this Order(or does not disapprove it within the review period), unless(i)the U.S. Court
of Appeals for the Federal Circuit, in a final judgment, reverses any Commission final
determination and order as to Respondent on appeal, or (ii) Respondent exports or destroys the
products subject to this bond and provides certification to that effect that is satisfactory to the
Commission.
The bond is to be released in the event the United States Trade Representative
disapproves this Order and no subsequent order is issued by the Commission and approved (or
2 See note 1 above.
7
not disapproved) by the United States Trade Representative, upon service on Respondent of an
order issued by the Commission based upon application therefore made by Respondent to the
Commission.
By order of the Commission.
Issued: January 22, 2020
8
OoT)Lisa R. Barton
Secretary to the Commission
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND Inv. No.337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order, Commission has been served
by hand upon the Commission Investigative Attorney, Andrew Beverina, Esq., and the
following parties as indicated, on January 22,2020.
On Behalf of Complainants Varidesk LLC:
Adam R. Hess,Esq.
SQUIRE PATTON BOGGS
2550 M Street, NW
Washington D.C. 20037
Respondents:
Albeit LLC
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902,Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
El Monte,CA 91731
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
1=1 Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
CZ Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
10 Via Express Delivery
O Via First Class Mail
O Other:
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
COMPONENTS THEREOF
Certificate of Service — Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo,Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd.
4th Floor, Building B,Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk,LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
No. 168 Xici 5th Rd.
Mechanical Industrial Zone
Wuhu,Anhui,China
Inv. No.337-TA-1125
0 Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
0 Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
0 Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
0 Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE
DESK PLATFORMS AND
COMPONENTS THEREOF
Investigation No.337-TA-1125
CEASE AND DESIST ORDER
IT IS HEREBY ORDERED THAT Respondent Albeit LLC cease and desist from
conducting any ofthe following activities in the United States: importing, selling, marketing,
advertising, distributing, transferring (except for exportation), soliciting United States agents or
distributors, and aiding or abetting other entities in the importation, sale for importation, sale
after importation, transfer (except for exportation), or distribution of desk platforms that sit on an
existing desk or work surface and can be adjusted to different heights that infringe one or more
of claims 1, 2,4, 10, and 11 of U.S. Patent No. 9,113,703 (the "703 patent"); claims 11, 16, 18,
and 22-26 of U.S. Patent No. 9,277,809 (the "809 patent"); claims 1, 4,5, 11, 12, 26, and 33-36
of U.S. Patent No. 9,554,644 (the'644 patent"); and claims 20,21, and 40-50 of U.S. Patent
No. 9,924,793 (the'793 patent")("Asserted Patents")in violation of section 337 ofthe Tariff
Act of 1930, as amended (19 U.S.C. § 1337).
I. Definitions
As used in this Order:
(A) "Commission" shall mean the United States International Trade Commission.
(B) "Complainant" shall mean Varidesk LLC of Coppell, Texas.
(C) "Respondent" shall mean Albeit LLC of San Francisco, California.
1
(D) "Person" shall mean an individual, or any non-governmental partnership, firm,
association, corporation, or other legal or business entity other than Respondent or
its majority-owned or controlled subsidiaries, successors, or assigns.
(E) "United States" shall mean the fifty States, the District of Columbia, and Puerto
Rico.
(F) The terms "import" and "importation" refer to importation for entry for
consumption under the Customs laws ofthe United States.
(G) The term "covered products" shall mean desk platforms that sit on an existing
desk or work surface and can be adjusted to different heights that infringe one or
more of claims 1, 2,4, 10, and 11 ofthe '703 patent; claims 11, 16, 18, and 22-26
ofthe'809 patent; claims 1, 4, 5, 11, 12, 26, and 33-36 ofthe '644 patent; and
claims 20, 21, and 40-50 of the '793 patent. Covered products shall not include
articles for which a provision oflaw or license avoids liability for infringement.
II. Applicability
The provisions ofthis Cease and Desist Order shall apply to Respondent and to any of its
principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled
(whether by stock ownership or otherwise) and majority-owned business entities, successors, and
assigns, and to each of them, insofar as they are engaging in conduct prohibited by Section III,
infra, for, with, or otherwise on behalf of, Respondent.
III. Conduct Prohibited
The following conduct of Respondent in the United States is prohibited by this Order.
For the remaining term ofthe Assertive Patents, Respondent shall not:
(A) import or sell for importation into the United States covered products;
2
(B) market, distribute, sell, or otherwise transfer(except for exportation)imported
covered products;
(C) advertise imported covered products;
(D) solicit United States agents or distributors for imported covered products; or
(E) aid or abet other entities in the importation, sale for importation, sale after
importation, transfer, or distribution of covered products.
IV. Conduct Permitted
Notwithstanding any other provision ofthis Order, specific conduct otherwise prohibited
by the terms of this Order shall be permitted if:
(A)in a written instrument, the owner of the Asserted Patents licenses or authorizes such
specific conduct; or
(B)such specific conduct is related to the importation or sale ofcovered products by or
for the United States.
V. Reporting
For purposes ofthis requirement, the reporting periods shall commence on January 1 of
each year and shall end on the subsequent December 31. The first report required under this
section shall cover the period from the date of issuance ofthis order through December 31, 2020.
This reporting requirement shall continue in force until such time as Respondent has truthfully
reported, in two consecutive timely filed reports, that it has no inventory of covered products in
the United States.
Within thirty (30)days of the last day ofthe reporting period, Respondent shall report to
the Commission(a)the quantity in units and the value in dollars of covered products that it has
3
(i)imported and/or (ii) sold in the United States after importation during the reporting period,
and(b)the quantity in units and value in dollars of reported covered products that remain in
inventory in the United States at the end ofthe reporting period.
When filing written submissions, Respondent must file the original document
electronically on or before the deadlines stated above and submit eight(8)true paper copies to
the Office of the Secretary by noon the next day pursuant to subsection 210.4(0 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.4(f)). Submissions should refer
to the investigation number("Inv. No. 337-TA-1125")in a prominent place on the cover pages
and/or the first page. (See Handbook for Electronic Filing Procedures,
https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000). If Respondent desires to submit a
document to the Commission in confidence, it must file the original and a public version ofthe
original with the Office of the Secretary and must serve a copy ofthe confidential version on
Complainant's counsel.'
Any failure to make the required report or the filing of any false or inaccurate report shall
constitute a violation of this Order, and the submission of a false or inaccurate report may be
referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. § 1001.
VI. Record-Keeping and Inspection
(A) For the purpose of securing compliance with this Order, Respondent shall retain
any and all records relating to the sale, offer for sale, marketing, or distribution in
'Complainant must file a letter with the Secretary identifying the attorney to receive reports and
bond information associated with this order. The designated attorney must be on the protective
order entered in the investigation.
4
the United States of covered products, made and received in the usual and
ordinary course of business, whether in detail or in summary form,for a period of
three(3) years from the close ofthe fiscal year to which they pertain.
(B) For the purposes of determining or securing compliance with this Order and for
no other purpose, subject to any privilege recognized by the federal courts ofthe
United States, and upon reasonable written notice by the Commission or its staff,
duly authorized representatives ofthe Commission shall be permitted access and
the right to inspect and copy, in Respondent's principal offices during office
hours, and in the presence of counsel or other representatives if Respondent so
chooses, all books, ledgers, accounts, correspondence, memoranda, and other
records and documents, in detail and in summary form,that must be retained
under subparagraph VI(A)of this Order.
VII. Service of Cease and Desist Order
Respondent is ordered and directed to:
(A) Serve, within fifteen (15) days after the effective date ofthis Order, a copy ofthis
Order upon each of its respective officers, directors, managing agents, agents, and
employees who have any responsibility for the importation, marketing,
distribution, or sale of imported covered products in the United States;
(B) Serve, within fifteen (15) days after the succession of any persons referred to in
subparagraph VII(A)ofthis order, a copy of the Order upon each successor; and
(C) Maintain such records as will show the name,title, and address of each person
upon whom the Order has been served, as described in subparagraphs VII(A)and
VII(B)ofthis Order, together with the date on which service was made.
5
The obligations set forth in subparagraphs VII(B)and VII(C) shall remain in effect until
the expiration dates ofthe Asserted Patents.
VIII. Confidentiality
Any request for confidential treatment of information obtained by the Commission
pursuant to Section V or VI ofthis Order should be made in accordance with section 201.6 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 201.6). For all reports for which
confidential treatment is sought, Respondent must provide a public version of such report with
confidential information redacted.
IX. Enforcement
Violation ofthis Order may result in any ofthe actions specified in section 210.75 ofthe
Commission's Rules of Practice and Procedure(19 C.F.R. § 210.75), including an action for
civil penalties under subsection 337(f) ofthe Tariff Act of 1930(19 U.S.C. § 1337(0), as well as
any other action that the Commission deems appropriate. In determining whether Respondent is
in violation of this Order, the Commission may infer facts adverse to Respondent if it fails to
provide adequate or timely information.
X. Modification
The Commission may amend this Order on its own motion or in accordance with the
procedure described in section 210.76 ofthe Commission's Rules of Practice and Procedure(19
C.F.R. § 210.76).
XI. Bonding
The conduct prohibited by Section III ofthis Order may be continued during the sixty
(60)day period in which this Order is under review by the United States Trade Representative,
6
as delegated by the President(70 Fed. Reg. 43,251 (Jul. 21, 2005)), subject to Respondent
posting of a bond in the amount of one hundred(100)percent ofthe entered value ofthe covered
products. This bond provision does not apply to conduct that is otherwise permitted by Section
IV ofthis Order. Covered products imported on or after the date ofissuance ofthis Order are
subject to the entry bond set forth in the exclusion order issued by the Commission, and are not
subject to this bond provision.
The bond is to be posted in accordance with the procedures established by the
Commission for the posting of bonds by complainant in connection with the issuance of
temporary exclusion orders. (See 19 C.F.R. § 210.68). The bond and any accompanying
documentation are to be provided to and approved by the Commission prior to the
commencement of conduct that is otherwise prohibited by Section III ofthis Order. Upon the
Secretary's acceptance of the bond,(a)the Secretary will serve an acceptance letter on all
parties, and(b) Respondent must serve a copy ofthe bond and any accompanying documentation
on Complainant's counse1.2
The bond is to be forfeited in the event that the United States Trade Representative
approves this Order(or does not disapprove it within the review period), unless (i)the U.S. Court
of Appeals for the Federal Circuit, in a final judgment, reverses any Commission final
determination and order as to Respondent on appeal, or (ii) Respondent exports or destroys the
products subject to this bond and provides certification to that effect that is satisfactory to the
Commission.
The bond is to be released in the event the United States Trade Representative
disapproves this Order and no subsequent order is issued by the Commission and approved (or
2 See note 1 above.
7
not disapproved) by the United States Trade Representative, upon service on Respondent of an
order issued by the Commission based upon application therefore made by Respondent to the
Commission.
By order ofthe Commission.
Issued: January 22,2020
8
Oat)	,Lisa R. Barton
Secretary to the Commission
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND Inv. No.337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order,Commission has been served
by hand upon the Commission Investigative Attorney, Andrew Beverina,Esq., and the
following parties as indicated, on January 22,2020.
On Behalf of Complainants Varidesk LLC:
Adam R. Hess,Esq.
SQUIRE PATTON BOGGS
2550 M Street, NW
Washington D.C. 20037
Respondents:
Albeit LLC
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902,Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
El Monte,CA 91731
Of6	0	3	:
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
O Via Hand Delivery
El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
1E1 Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
(El Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
O Other:
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
COMPONENTS THEREOF
Certificate of Service — Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo,Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd.
4th Floor, Building B,Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk,LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
No. 168 Xici 5th Rd.
Mechanical Industrial Zone
Wuhu,Anhui, China
Inv. No.337-TA-1125
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PUBLIC VERSION
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN HEIGHT'4-DJUSTABLE 	Investigation No. 337-TA-1125
DESK PLATFORMS AND 	.
COMPONENTS THEREOF
COMMISSION OPINION
This investigation is before the Commission on a final determination on remedy, the
public interest, and bonding. On September 13, 2019, the presiding administrative law judge
(“ALJ”) issued Order No. 33, a combined initial determination (“ID”) and recommended
determination (“RD”). The ID found a violation of section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. § 1337 (“section 337”), by ten respondents that had not participated in the
investigation. See 84 Fed. Reg. 59416-417 (Nov. 4, 2019). On October 29, 2019, the
Commission determined not to review the ID and requested written submissions on remedy, the
public interest, and bonding. Id. ,
Upon consideration of the submissions received, the Commission has determined that the
appropriate form of relief is: (1) a general exclusion order (“GEO”) prohibiting the unlicensed
importation of certain platforms that sit on an existing desk or work surface and can be adjusted
to different heights that infringe one or more of claims 1-2, 4, and 10-11 of U.S. Patent No.
9,113,703 (“the ’703 patent”); claims 11, 16, 18, and 22-26 of U.S. Patent No. 9,277,809 (“the
’809 patent”); claims 1, 4-5, 11-12, 26, and 33-36 of U.S. Patent No. 9,554,644 (“the ’644
patent”); and claims 20-21 and 40-50 of U.S. Patent No. 9,924,793 (“the ’793 patent”); and (2)
cease and desist orders (“CDO”) against certain domestic respondents that did not participate in
1
PUBLIC VERSION
the investigation. The Commission finds that the public interest does not preclude issuance of
these remedial orders. See 19 U.S.C. §§ l337(d)(l), (i)(1). The Commission sets a bond in the
amount of 100 percent of the entered value of the infringing articles imported during the period
of Presidential review.
I. BACKGROUND
On July 30, 2018, the Commission instituted this investigation based on a complaint and
supplements thereto filed on behalf of Varidesk LLC of Coppell, Texas (“Varidesk”). 83 Fed.
Reg. 36621 (July 30, 2018). The complaint alleged violations of section 337 based upon the
importation into the United States, the sale for importation, and the sale within the United States
after importation of certain height-adjustable desk platforms and components thereof by reason
of infringement of certain claims of the ’703, the ’809, the ’644, and the ’793 patents. Id. The
complaint further alleged that an industry in the United States exists as required by section 337.
The Commission’s notice of investigation named thirty-one respondents: (1) Albeit
LLC of San Francisco, California (“Albeit”); (2) ATC Supply LLC of Plainfield, Illinois (“ATC
Supply”); (3) Shenzhen Atc Network Scienology CO., LTD. of Guangdong, China (“Shenzhen
ATC”); (4) Best Choice Products of Ontario, Califomia (“Best Choice”); (5) Huizhou Chang He
Home Supplies Co., Ltd. of Guangdong, China (“Chang He”); (6) Dakota Trading, Inc. of
Emerson, New Jersey (“Dakota”); (7) Designa Inc. of Guangdong, China (“Designa”);
(8) Designa Group, Inc. of El Dorado Hills, Califomia (“Designa Group”); (9) Eureka LLC of El
Dorado Hills, California (“Eureka”); (10) LaMountain International Group LLC of Elk Grove,
California (“LaMountain”); (11) Amazon Import Inc. of El Monte, Califomia (“Amazon
Import”); (12) Hangzhou Grandix Electronics Co., Ltd. of Zhejiang, China (“Grandix”);
(13) Ningbo GYL Intemational Trading Co., Ltd. of Zhejiang, China (“Ningbo GYL”);
2
PUBLIC VERSION
(14) Knape & Vogt Manufacturing Co. of Grand Rapids, Michigan (“Knape & Vogt”); (15) JV
Products Inc. of Milpitas, Califomia (“JV Products”); (16) Vanson Distributing, Inc. of Milpitas,
California (“Vanson Distributing”); (17) Vanson Group, Inc. of Milpitas, Califomia (“Vanson
Group”); (18) S.P. Richards Co. DBA Lorell of Smyrna, Georgia (“Lorell”); (19) Nantong Jon
Ergonomic Office Co., Ltd. of Jiangsu, China (“Nanotong Jon”); (20) Jiangsu Omni Industrial
Co., Ltd. of Jiangsu, China (“Jiangsu Omni”); (21) OmniMax USA, LLC of Anna, Texas
(“OmniMax USA”); (22) Haining Orizeal Import and Export Co., Ltd. of Zhejiang, China
(“Haining Orizea1”); (23) Qidong Vision Mounts Manufacturing Co., Ltd. of Jiangsu, China
(“Vision Mounts”); (24) Hangzhou KeXiang Keji Youxiangongsi of Hangzhou, China
(“Hangzhou KeXiang”); (25) Smugdesk, LLC of La Puente, California (“Smugdesk”);
(26) Venditio Group, LLC of Elkton, Florida (“Venditio”); (27) Versa Products Inc. of Los
Angeles, California (“Versa”); (28) Victor Technology, LLC of Bolingbrook, Illinois (“Victor”);
(29) CKnapp Sales, Inc. DBA Vivo of Goodfield, Illinois (“Vivo”); (30) Wuhu Xingdian
Industrial Co., Ltd. of Anhui, China (“Wuhu Xingdian”); and (31) Wuppessen, Inc. of Ontario,
California (“Wuppessen”). Id. The Office of Unfair Import Investigations (“OUII”) was also
named as a party in this investigation. Id.
During the course of the investigation, Varidesk settled with the following respondents:
Venditio, Jiangsu Onmi, OmniMax USA, Knape & Vogt, Wuppessen, Victor, Versa, Designa,
Designa Group, Eureka, Chang He, Vision Mounts, Vivo, Nanotong Jon, Best Choice, Grandix,
Hangzhou KeXiang, Lorell, and Dakota. Order No. 7, unreviewed, Notice (Sept. 18, 2018);
Order No. 11, unreviewed, Notice (Sept. 25, 2018); Order No. 12, unreviewed, Notice (Oct. 4,
2018); Order No. 13, unreviewed, Notice (Oct. 4, 2018); Order No. 16, unreviewed, Notice (Nov
9, 2018); Order No. 18, unreviewed, Notice (Nov. 29, 2018); Order No. 20, unreviewed, Notice
3
PUBLIC VERSION
(Feb. 21, 2019); Order No. 23, unreviewed, Notice (Mar. 12, 2019); Order No. 25, unreviewed,
Notice (Apr. 5, 2019); Order N0. 31, unreviewed, Notice (May 16, 2019). In addition, the
investigation terminated as to LaMotmtain based on a consent order stipulation and the issuance
of a consent order. Order No. 15, unreviewed, Notice (Oct. 22, 2018).
The-remaining eleven respondents, who were served with a copy of the complaint and the
notice of investigation, did not file a response or participate in the investigation. These
respondents are (1) Albeit, (2) ATC Supply, (3) Shenzhen ATC, (4) Amazon Imports,
(5) Ningbo GYL, (6) IV Products, (7) Vanson Distributing, (8) Vanson Group, (9) Haining
Orizeal, (10) Smugdesk, and (11) Wuhu Xingdian (collectively, “Non-Participating
Respondents”). Complainant did not file a motion requesting that these respondents be found
in default pursuant to Rule 210.16.
This investigation was also terminated as to claims 3 and 6-9 of the ’703 patent; claims 1
3, 5-10, 12-15, 17, and 27-28 ofthe ’809 patent; claims 2-3, 6-10, 13-15, 19, 21-23, 25, and 28
32 of the ’644 patent; and claims 1-11 and 22-39 of the ’793 patent. Order No. 30, unreviewed,
Notice (May 13, 2019). The remaining asserted claims in this investigation are claims 1-2, 4,
and 10-11 ofthe ’703 patent; claims 11, 16, 18, and 22-26 of the ’809 patent; claims 1, 4-5, 11
12, 26, and 33-36 of the ’644 patent; and claims 20-21 and 40-50 of the ’793 patent (“the
Asserted Claims”).
On December 10, 2018, the ALJ held a Markman hearing. At the time of the Markman
hearing, Dakota was the only remaining participating respondent.‘ Order No. 27, at 1, n.1.
1 As noted above, Varidesk later settled with Dakota. Order No. 31, unreviewed, Notice (May
16, 2019). 1
4
PUBLIC VERSION
On April 1, 2019, the ALJ issued a Markman Order (Order No. 27) construing the disputed
claims. 	'
On April 11, 2019, Varidesk moved for summary determination of a violation of section
337 by the Non-Participating Respondents? On April 24, 2019, Varidesk filed a supplement to
the motion.3 Varidesk’s motion requested a GEO and CDOs against the Non-Participating
Respondents. See Mot. at 2.
On April 26, 2019, OUII filed a response supporting Varidesk’s motion in substantial
part. OUII supported the motion as to all Non-Participating Respondents except for Haining
Orizeal. More specifically, OUII believed that Varidesk had (1) satisfied the importation
requirement as to each Non-Participating Respondent, except for Haining Orizeal; (2) shown that
the Accused Products‘ infringe the Asserted Claims; and (3) satisfied the domestic industry
requirement for each asserted patent. OUII also supported Varidesk’s request for a GEO and
the imposition of a bond during the period of Presidential review of 100 percent of the entered
value of infringing products. However, OUII did not believe that CDOs are appropriate
because Varidesk failed to provide evidence to show that the Non-Participating Respondents '
have cormnercially significant inventories and instead relied upon inferring inventories based on
the default standard. See OUII Response to Mot. at 89.5
2 Complainant’s Motion for Summary Determination Against the Non-Participating
Respondents, EDIS Doc ID 672843 (Apr. 11, 2019) (“Mot”). 	'
3 Supplemental Support for Complainant’s Motion for Summary Determination Against the
Non-Participating Respondents, EDIS Doc ID 674049 (Apr. 24, 2019).
4 The “Accused Products” are the Halter ED-258, HeroDesk, ANNT Lumsing Standing Desk,
Fezibo Standing Desk Converter, Fezibo Height Adjustable Standing Desk, Logix Desk Stand
Up Desk, and the Smugdesk Standing Desk. See ID at 10-11.
5 Notwithstanding OUII’s statement in its response to the summary determination motion that
Varidesk submitted noevidence of inventories, OUII stated in its remedy submission to the
5 	.
PUBLIC VERSION
On September 13, 2019, the ALJ granted in part Varidesk’s motion for summary
determination of a violation of section 337 by the Non-Participating Respondents.
See Order No. 33 at 1-34. The ALJ found, inter alia, that Varidesk had (1) satisfied the
importation requirement as to each Non-Participating Respondent, except for Haining Orizeal;
(2) shown that the Accused Products infringe the Asserted Claims; and (3) satisfied the domestic
industry requirement for each asserted patent. No party petitioned for review of the ID.
Also, on September 13, 2019, the ALJ issued his recommended determination on remedy
and bonding. See Order No. 33 at 34-42. In particular, the RD recormnended that the
Commission issue a GEO and impose a bond during the period of Presidential review of 100
percent of the entered value of infringing products. The RD also recommended that the
Commission not issue CDOs in the event a violation of section 337 is found because Varidesk
did not present evidence of any domestic inventory.
On October 29, 2019, the Commission determined not to review the ID. 84 Fed. Reg.
59417. The Commission’s determination resulted in a finding of no violation as to Haining
Orizeal, and a violation as to ten Non-Participating Respondents: (1) Albeit; (2) ATC Supply;
(3) Shenzhen ATC; (4) Amazon Import; (5) Ningbo GYL; (6) JV Products; (7) Vanson
Distributing; (8) Vanson Group; (9) Smugdesk; and (10) Wuhu Xingdian (collectively,
“Respondents-In-Violation”). See id. The Commission also requested written submissions on
remedy, the public interest, and bonding. See id.
Cormnission that “there is infonnation in the record that could inferentially establish a
commercially significant inventory for the domestic non-participating respondents.” Response
of the Office of Unfair Import Investigations to the Commission’s Request for Written
Submissions on Remedy, the Public Interest, and Bonding, at 10, EDIS Doc ID 694216 (Nov.
13, 2019) (“IASub”). OUII’s response details that record evidence, which Varidesk presented
in its summary determination motion as to each domestic Non-Participating Respondent. See id.
at 13-18.
6
PUBLIC VERSION
On November 13, 2019, Varidesk and OUII submitted their briefs on remedy, the public
interest, and bonding.6 On November 20, 2019, Varidesk submitted its reply brief on remedy,
the public interest, and bonding.7 No other submissions were filed in response to the Notice.
II. DISCUSSION
As explained below, the Commission finds that the statutory requirements for a general
exclusion from entry of infringing articles under paragraph 337(d)(2), 19 U.S.C. § 1337(d)(2),
are met in this investigation. The Commission also finds support for issuing CDOs against the
domestic Respondents-In-Violation but not the foreign Respondents-In-Violation. See 19
U.S.C. § 1337(f)(1). The Commission also finds that the public interest factors entunerated in
paragraphs 337(d)(1) and (f)(l), 19 U.S.C. §§ 1337(d)(1), (f)(1), do not warrant denying relief.
Accordingly, the Commission determines that the appropriate remedy in this investigation is:
(1) a GEO prohibiting the unlicensed entry of certain platforms that sit on an existing desk or
work surface and can be adjusted to different heights that infringe one or more of claims 1-2, 4,
and 10-11 of the ’703 patent; claims 11, 16, 18, and 22-26 ofthe ’809 patent; claims 1, 4-5, ll
l2, 26, and 33-36 of the ’644 patent; and claims 20-21 and 40-50 of the ’793 patent; and (2)
CDOs directed against domestic Respondents Albeit, ATC Supply, Amazon Import, JV
Products, Vanson Distributing, Vanson Group, and Smugdesk. The Commission further
determines that the bond during the period of Presidential review pursuant to 19 U.S.C. § 1337(j)
shall be in the amount of 100 percent of the entered value of the imported articles.
6 See Complainant Varidesk LLC’s Submission on Remedy, the Public Interest, and Bonding,
EDIS Doc ID 694170 (Nov. 13, 2019) (“CSub”).
7 See Complainant Varidesk LLC’s Reply Submission on Remedy, the Public Interest, and
Bonding, EDIS Doc ID 695115 (Nov. 20, 2019) (“CRep1y”).
7
PUBLIC VERSION
A. General Exclusion Order
Paragraph 337(d)(2) provides that “[t]he authority of the Commission to order an
exclusion from entry of articles shall be limited to persons determined by the Commission to be
violating this section unless the Commission determines that— (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 of infringing products.” 19 U.S.C. § l337(d)(2); see also. 19 C.F.R. § 210.50(c).
The RD found that the evidence of record supports issuing a GEO. See RD at 35-38.
With respect to subparagraph 337(d)(2)(A), the RD found that the “evidence adduced by
Varidesk establishes that a GEO is necessary to prevent circumvention of an order limited to the
products of named respondents.” Id. at 36. In particular, the RD found that “some of the Non
Participating Respondents obscure the sources of the Accused Products.” Id. For example, the
RD explained that “Varidesk presented evidence of manufacturers who use the same image of a
height-adjustable desk to sell products by different manufacturers.” Id. (citing Mot. Exs. 107
108). Moreover, the RD fotmd there is also “evidence that internet-based sellers of height
adjustable desk platforms hide the source of infringing products by providing little or no physical
contact information.” Id. (citing Mot. Exs. 105-106). The RD further found that “[m]any
sellers also do not indicate the origin of their products on the shipping boxes, making it difficult
to determine the source of the goods.” Id. (citing Mot. Ex. 46). Still further, the RD found that
“some sellers ‘hijack’ other webpages to sell their products.” Id. For example, the RD
explained that “Varidesk provided a printout from an amazon.com page for the Varidesk 49900
desk.” Id. (citing Mot. Ex. 104). However, the RD noted that “[o]n that page there is a link
stating ‘[t]here is a newer model of this item,’ but the link is to a desk made by another
8
PUBLIC VERSION
company.” Id. (citing Mot. Ex. 104). Finally, the RD noted that “[t]here is also evidence that
companies sell the same products under different product names, through different sellers, and I
provide no information on the origin of the product.” Id (citing Mem. at 38; Mot. Exs. 25, 110
113). 	.
With respect to subparagraph 337(d)(2)(B), the RD fotmd that “[t]his is the fourth
investigation to focus on Varidesk’s height-adjustable desks.” Id. at 37. The RD noted that in
this investigation, thirty-one respondents were named, and the previous investigations named an
additional thirteen respondents. Id. (citing Complaint; Inv. No. 337-TA-970 Complaint (EDIS
Doc. ID 566554); Inv. No. 337-TA-992 Complaint (EDIS Doc. ID 576595); Inv. No. 337-TA
l054 Complaint (EDIS Doc. ID 607089)). The RD fotmd this evidence of importation by forty
four respondents supports a finding that there is a pattern of violation. Id. (citing Certain
Coaxial Cable Connectors and Components Thereofand Products Containing Same, Inv. No.
337-TA-650, Comm’n Op. at 58 (Mar. 31, 2010)). In addition, the RD found that “the ease of
selling under multiple names and models supports a finding that there is a pattern of violation.”
Id. (citing Mot. Exs. 25, 105-106, 110-113; see Certain Cases for Portable Electronic Devices,
Inv. No. 337-TA-867/861, Comm’n Op. at 9 (July 10, 2014)).
In response to the Comrnission’s October 29, 2019 Notice, both Varidesk and OUII
support the RD’s recommendation for the issuance of a GEO. See CSub at 16-20; IASub at 8.
With regard to subparagraph 337(d)(2)(A), Varidesk explains that the Non-Participating
Respondents are Chinese manufacttuers and domestic re-sellers. CSub at 17. According to
Varidesk, “[n]umerous entities are capable of shifting, at minimal expense, a substantial amount
of their production to manufacture infringing height-adjustable desk platfonns and components
thereof for importation into the United States.” Id. (citing Mot. Statement of Undisputed
9
PUBLIC VERSION
Material Facts (“SOF”) 1173). Varidesk explains that “[W]hen offered for sale and sold via the
Intemet, different sellers will use the same images of height-adjustable desk platforms to sell
products of different manufacturers, in an effort to obfuscate the source of the product.” Id
(citing Mot. SOF 1172;Mot. Exs. 107-108). Varidesk avers that “other intemet sellers of height
adjustable desk platforms attempt to hide the source of infringing products by providing little or
no physical contact information on their websites.” Id. (citing Mot. SOF 1[73;Exs. 105-106).
Moreover, Varidesk avers that “[s]ellers do not always indicate the origin of their products on the
shipping boxes, obscuring the source.” Id. (citing, e.g. Mot. Ex. 46). Further, Varidesk
explains that “the websites of the manufacturers shift over time, and products appear and
disappear seemingly at random, making it impossible to identify their products.” Id. at 17-18.
Still further, Varidesk asserts “some sources ‘hijack’ Complainant’s Amazon.com webpages and
falsely identify themselves as selling newer models of Complainant’s products.” Id. at 18 (Mot.
Ex. 104). In addition, according to Varidesk, “some entities, such as Terminated Respondent
Vision Molmts, sell the same products under different brands, through different resellers, without
any indication of the origin of the products.” Id. (Compare Mot. Ex. 110 at 6-9 with Mot. Exs.
25, 111-113). Finally, Varidesk explains that “different Chinese suppliers appear to
manufacture and sell the identical products.” Id. (Compare Mot. Ex. 25 with Mot. Exs. 114 at
18-76; 115 at 5-8; and 91).
With regard to subparagraph 337(d)(2)(B), in addition to the evidence discussed above,
Varidesk also points to evidence of a clear pattem of violation of section 337. In particular,
Varidesk explains that it has been forced to initiate three prior ITC investigations to protect its
patent rights. Id Varidesk asserts that the “industry for adjustable-height desk platforms is
particularly susceptible to repeated violations of Section 337 because virtually all sales are made
10
PUBLIC VERSION
via the internet, which makes it difficult to both identify and locate manufacturers and sellers.”
Id. at 19. Finally, Varidesk asserts that “business conditions suggest that foreign manufacturers
may attempt to enter the United States with infringing products” because of the “established and
growing demand in the United States for height-adjustable desk platforms” and the
“comparatively low barrier to entry into the market.” Id. at 20.
Based on the record and the parties’ submissions, the Commission has determined to
issue a GEO pursuant to 19 U.S.C. § 1337(d)(2). As discussed below, a GEO is necessary to
prevent circumvention of an LEO, there is a pattern of violation, and it is difficult to identify the
source of the infringing products.
1. High likelihood of circumvention
The record evidence showsdifficulty in identifying the source of the infringing articles.
For example, Varidesk presented evidence of manufacturers who use the same image of a height
adjustable desk to sell products by different manufacturers. RD at 36 (citing Mot. Exs. 107
108). Varidesk attached exhibits showing what appear to be the same product being sold under
different names, through different sellers, and providing no information on the origin of the
product. Mot. Exs. 25, 110-113. Given the multitude of foreign entities providing the same
infringing goods, it is difficult to identify which entities are the actual source of the products.
The record evidence also demonstrates that companies utilizing ecornmerce channels hide
the source of infringing products by providing little or no physical contact information. RD at
36 (citing Mot. Exs. 105-106). Many sellers also do not indicate the origin of their products on
the shipping boxes, making it difficult to determine the source of the goods. Mot. Ex. 46. In
addition, the evidence shows that some sellers “hijack” other webpages, including those of
Varidesk, to sell their products. RD at 36 (citing Mot. Ex. 104).
11
PUBLIC VERSION '
The Commission has found the threat of circumvention sufficient to issue a GEO in
investigations with similar facts. See Certain LED Lighting Devices and Components Thereofi
Inv. No. 337-TA-1107, Comm’n Op. at 6-7 (Sep. 11, 2019); Certain Cases for Portable Elec.
Devices, 337-TA-867/861, Comm. Op. at 9-10 (July 10, 2014); Certain Toner Cartridges and
Components Thereofi Inv. No. 337-TA 918, Comrn’n Op. at 6-8 (Oct. l, 2015).
2. Widespread pattern of violation
The record evidence also establishes a widespread pattern of infringement. The present
investigation named thirty-one (31) respondents and is the fourth investigation regarding
Varidesk’s patented height-adjustable desks. RD at 37. The previous three investigations,
which involved one or more of the same patents asserted in the present investigation, named a
total of thirteen (13) other respondents. The Commission has considered past investigations
when evaluating a pattern of violation. See Certain Inlg'etInk Supplies, Inv. No. 337-TA-691,
Comm’n Op. at 12 (Jan. 28, 2011) (“[w]ith respect to ‘pattern of violation,’ this is not the first
section 337 investigation relating to ink cartridges”).
In addition to the evidence discussed above—including the fact that most sales are I
completed online and that manufacturers market and sell products under different names with
little or no indication of origin—the ease of selling under multiple names and models also
supports finding that there is a pattem of violation and a difficulty of identifying the source of
infringing products. See RD at 37. Indeed, all of the named respondents in this investigation
sold infringing products via the Internet. SOF 1111	63-71. By conducting transactions through
online marketplaces, such as ArnaZon.comand Alibabacom, suppliers of infringing products are
able to hide their identities. The Commission has found in other investigations that numerous
online sales of infringing imported goods can support a pattern of violation of section 337. See
12
PUBLIC VERSION
Certain Loom Kitsfor Creating Linked Articles (“Loom Kits”), Inv. No. 337-TA-923, Comm’n
Dp., 2015 WL 5000874 at *9 (June 26, 2015).
3. Conclusion 	I
Based on the evidence discussed above, the Commission-finds the record evidence
supports the issuance of a GEO prohibiting the unlicensed importation of certain platforms that
sit on an existing desk or work surface and can be adjusted to different heights that infringe one
or more of the Asserted Claims. 	A
t B. Cease and Desist Orders
The RD recommended that CDOs against the Non-Participating Respondents are not
warranted. See RD at 38-40. In particular, the RD agreed with OUII that Varidesk did not D
provide evidence of significant domestic inventory. Id. at 39. The RD also agreed with OUII
that Varidesk incorrectly argued that the facts of the complaint should be presumed true and that
the Commission should infer a significant inventory based on the default standard even though
no finding of default was requested in this investigation. Id. at 39-40. Therefore, the RD
recommended that the Commission not issue CDOs against the Non-Participating Respondents.
Ia’. at 40.
In their initial submissions to the Commission on remedy, both Varidesk and OUII
changed their respective positions on CDOs compared to what they advocated before the ALJ.
Before the ALJ, Varidesk requested CDOs against each of the Non-Participating Respondents in
its motion for summary determination on violation. Varidesk’s motion included evidence from
which significant domestic operations and U.S. inventories by the domestic Non-Participating
Respondents may be inferred as discussed below. Before the Commission, Varidesk initially
stated that it was not seeking a CDO against any respondent and did not challenge the RD’s
' 13
PUBLIC VERSION
recommendation.. See Mot. at 32; CSub at 13 n.4 and 15. In its reply submission, Varidesk
renewed its request for CDOs against the domestic Non-Participating Respondents and not the
foreign Non-Participating Respondents, stating that it joined OUII in requesting the CDOs.
CReply at 2. 	p
OUII did not support the issuance of CDOs against the Non-Participating Respondents
before the ALJ. See RD at 34. However, in its submission to the Commission, OUII supported
issuing CDOs against the domestic Non-Participating Respondents (i.e., Albeit, ATC Supply,
Amazon Import, JV Products, Vanson Distributing, Vanson Group, and Smugdesk) but not the
foreign Non-Participating Respondents (e.g. , Shenzhen ATC and Ningbo GYL). IASub at 13
23. V
The Commission has authority to issue a CDO directed to entities found to violate section
337, ordering them to cease and desist from engaging in the unfair methods or acts involved,
under two paragraphs of section 337: paragraphs 337(f)(1) and 337(g)(1). The Commission
has generally issued CDOs when, with respect to the imported infringing products, respondents
maintain commercially significant inventories in the United States or have significant domestic
operations that could undercut the remedy provided byan exclusion order. See, e.g., Certain
Table Saws Incorporating Active Injury Mitigation Technology & Components Thereofi Inv. No.
337-TA-965, C0mm’n Op. at 4-6 (Feb. 1, 2017); Certain Protective Cases & Components
Thereof Inv. No. 337-TA-780, USITC Pub. No. 4405, Comrn’n Op. at 28 (Nov. 19, 2012)
(citing Certain Laser Bar Code Scanners & Scan Engines, Components Thereof & Prods,
Containing Same, Inv. No. 337-TA-551, Comm’n Op. at 22 (June 24, 2007)). Complainants
bear the burden on this issue. “A complainant seeking a cease and desist order must
demonstrate, based on the record, that this remedy is necessary to address the violation found in
14
PUBLIC VERSION
the investigation so as to not undercut the relief provided by the exclusion order.” Table Saws,
Comm’n Op. at 5 (citing Certain Integrated Repeaters, Switches, Transceivers, & Prods.
Containing Same, Inv. No. 337-TA-435, USITC Pub. No. 3547 (Oct. 2002), Comm’n Op. at 27
(Aug. 16, 2002); see also H.R. REP. No. 100-40, at 160 (1987)).
In the case of named respondents in the United States who have been found in default or
who have not participated in the investigation, the Commission has inferred commercially
significant domestic inventories or significant domestic operations with respect to the infringing
articles. See, e.g., Certain Earpiece Devices and Components Thereof (“Earpiece Devices”),
Inv. No. 337-TA-1121, Comm’n Op. at 41-42 (Nov. 8, 2019); Certain Hand Dryers and Housing
for Hand Dryers, Inv. No. 337-TA-1015, C0mm’n Op. at 24 (Oct. 30, 2017); Certain Mobile
Device Holders and Components Thereof (“Mobile Device Holders”), Inv. No. 337-TA-1028,
Comm’n Op. at 27 (Mar. 22, 2018); Certain Agricultural Tractors, Lawn Tractors, Riding
Lawnmowers, and Components Thereof, Inv. No. 337-TA-486, C0mm’n Op. at 18 (Aug. 19,
2003); Certain Rare-Earth Magnets and Magnetic Materials and Articles Containing Same
(“Rare-Earth Magnets”), Inv. No. 337-TA-413, USITC Pub. No. 3307, Comm’n Op. at 17-18
(May 2000).
Here, the prerequisites of paragraph 337(g)(1) are not satisfied because the Non
Participating Respondents have not been formally found in default. See Earpiece Devices, Inv.
No. 337-TA-1121, Comm’n Op. at 40. Therefore, as the RD correctly notes (at page 38),
paragraph 337(f)( 1) is the proper statutory provision for the Commission’s authority in issuing a
CDO in this investigation. See 19 U.S.C. § 1337(f)(1) (“In addition to, or in lieu of, taking
action under subsection (d) . . . the Commission may issue . . . an order . . . to cease and desist).
15
PUBLIC VERSION
The Commission, however, diverges from the RD’s rationale for declining to infer
commercially significant inventories on the part of the Non-Participating Respondents because
they had not been found in default. See RD at 39-40. The RD’s recommendation, which
credited OUII’s argument and reviewed the authorities Varidesk cited, focused on Commission
Rule 210.16, which governs defaulted respondents. See id.; see also 19 C.F.R. § 210.16.
In the case of named respondents in the United States who failed to participate in an
investigation, however, the Commission has also inferred significant inventories or domestic
operations under Commission Rule 210.17 as a basis for issuing CDOs. See 19 C.F.R. § 210.17
(providing that the ALJ or the Commission may “draw adverse inferences and to issue findings
of fact, [and] conclusions of law,” that are adverse to the party who fails to act); Earpiece
Devices, Inv. No. 337-TA-1121, Comm’n Op. at 41-42 (inferring that defaulting and non
participating domestic respondents maintain inventory in the United States based on sales
completed through Amazon, and issuing CDOs based on those inferences); Rare-Earth Magnets,
Inv. No. 337-TA-413, C0rnm’n Op. at 17-18 (drawing an adverse inference of connnercially
significant U.S. inventories pursuant to Commission Rule 210.17 and issuing a CDO against a
respondent that did not participate at the hearing nor file any posthearing submissions). Just as
in cases involving respondents in default, discovery may be difficult, if not impossible, to obtain
from non-participating parties, and hence there would be limited facts available in the record.
See Mobile Device Holders, Inv. No. 337-TA-1028, Comm’n Op. at 23-24; Rare-Earth Magnets,
Inv. N0. 33.7-TA-413,Comm’n Op. at 18; see also Certain Electrical Connectors and Products
Containing Same, Inv. No. 337-TA-374, USITC Pub. No. 2981, Comm’n Op. at l7 (Jul. 1996)
(finding it appropriate to infer the existence of commercially significant domestic inventories
where a respondent failed to provide evidence to the contrary). - Thus, due to the domestic
16
PUBLIC VERSION
presence and lack of participation in the investigation, the Commission has found it appropriate
in such cases to draw certain inferences from the record evidence in favor of a complainant in
order to grant the complainant’s request for relief in the form of a CDO. See id.; Earpiece
Devices, Inv. No. 337-TA-1121, Comm’n Op. at 41-42. _
Here, the record evidence supports inferring commercially significant inventories and
domestic operations as to the seven domestic Non-Participating Respondents as shown in the
table below.8
Domestic 	Evidence of Commercially Significant 	Citation to
Respondent-In-Violation Inventory or Domestic Operations 	Evidence
_ Imports and sells in the United States McIntyre Aff, 1]15;
infringing article under the name Mot ExS_11’ 12_
Albeit 	HeroDesk on Amazon.com. The desk is
available for two-day shipping from an
Amazon facility. i
Imports and sells in the United States McIntyre Aff, 1]17;
infringing article under the name ANNT Mot EXs_16, 19’ 20_
ATC Supply 	Lumsing on Arnazon.com. The desk is
available for two-day shipping from an
Amazon facility. '
- 	"Imports and sells in the United States McIntyre Aff, fll19_;
infringing article under the name Mot EXS_22_25_
Amazon Import 	FEZIBO on Arnazon.com. The desk is
available for two-day shipping from an
r 	Amazon facility.
8 In Commissioner Schmidtlein’s view, the inventory of record and the Non-Participating
Respondents’ domestic operations (e.g., sales activities) provide a basis for issuing the requested
CDOs, regardless of their commercial significance. See Certain Industrial Automation Sys.And
Components Thereof Including Control Sys., Controllers, Visualization Hardware, Motion and
Motor Control Sys., Networking Equipment, Safely Devices, and Power Supplies, Inv. No. 337
TA-1074, Dissenting Views of Commissioner Schmidtlein at 4 (Apr. 8, 2019) (EDIS Doc. ID
No. 672456) (“it is tmnecessary for the Commission to have to infer the existence of a
commercially significant U.S. inventory in order to issue the CDOs[.]”); Earpiece Devices, Inv.
No. 337-TA-l 121, Comm’n Op. at 44 n.15 (“Connnissioner Schmidtlein has found that the
presence of some infringing domestic inventory or domestic operations, regardless of 	A
commercial significance, provides a basis to issue a CDO.”). 	,
17
PUBLIC VERSION
Imports and sells in the United States Mclntyre Aff, 1]22;
JV Products’ 	infringing article under the name Logix Mot EXS_42, 44_46_
Vanson Distributing, on internet sites including Amazon.com,
and Vanson Group” Groupon.com, and ebay.com. The desk
is available for two-day shipping from an
Amazon facility.
Imports and sells in the United States Mclntyre Aff, 1]25;
infringing article under the name ANNT Mot EXS_49_5Q_
Smugdesk 	Ltunsing desk on Amazon.com. The
desk is available for three-day shipping
from an Amazon facility.
As noted above, Varidesk shifted positions with respect to CDiOs. Before the ALJ,
Varidesk requested CDOs. Its motion included the evidence referenced in the Table herein.
Before the Commission, Varidesk initially indicated it did not request this remedy, but in its
reply submission, it renewed its CDO request citing the evidence it presented before the ALJ.
The Commission may decline to issue CDOs after a complainant withdraws its request for such
orders. See Certain CompositeAerogel Insulation Materials and Methodsfor Manufacturing
the Same (“Aerogel Insulation”), Inv. No. 337-TA-1003, Comm’n Op. at l-2, 61 (Feb. 22, 2018),
afi"'a'936 F.3d 1353 (Fed. Cir. 2019) (finding the appropriate remedy for violation of section 337
is a limited exclusion order after complainant withdrew its request for a CDO before the ALJ);
Certain Miniature Plug-In Blade Fuses (“Blade Fuses”), Inv. No. 337-TA-114, USITC Pub. No.
1337, Comm’n Op. at 3 n.7 and 41 11.203(Jan. 1, 1983) (finding the appropriate remedy for
violation of section 337 is a GEO and that CDOs were “unnecessary” based on complainant’s
withdrawal of its request for a CDO before the Commission and due to a lack of evidentiary
support). Parties are to state their positions on remedy in their initial submissions pursuant to
the Commission’s Federal Register notice requesting briefing on remedy, in order to ensure that
9 The evidence shows that all three companies are related, located at the same address in the
United States and under common ownership. ID at 20; Mot. Exs. 32-41. V
18
PUBLIC VERSION
other parties have an opportunity to present their views in response to the remedy request. But
here, the domestic Respondents-In-Violation have not participated in any aspect of this
investigation and in particular did not challenge Complainant Varidesk’s request for CDOs
before the ALJ or OUIl’s recommendation in support of CDOs in its initial submission to the
Commission. Nor did Varidesk dispute the record support for CDOs. Thus, domestic
Respondents-In-Violation had numerous opportunities to argue against CDOs. Declining to
issue the CDOs would allow the domestic Respondents-In-Violation to liquidate, with impunity,
their infringing inventory to the detriment of Varidesk. Given these particular circumstances,
and in view of Commission Rule 210.17 and the record evidence showing that CDOs are
appropriate in this case, the Commission determines to issue CDOs against the domestic
Respondents-In-Violation. 1°
1°Cormnissioner Stayin and Chairman Johanson would not issue CDOs in this
investigation. Both Varidesk and OUII changed their respective positions on CDOs in their
submissions to the Commission on remedy. Despite requesting CDOs against each of the Non
Participating Respondents in its motion for summary determination on violation before the ALJ;
before the Commission, Varidesk explicitly states that it is not seeking a CDO against any
respondent and expressly chose not to challenge the RD’s recommendation that the Commission
should not issue CDOs against any of the Non-Participating Respondents in its initial
submission. Mot. at 32; CSub at 13 n.4 and 15 (“Varidesk confinns that it is not currently
seeking a CDO against any respondents”). However, in its submission to the Commission,
OUII supported issuing CDOs against the domestic Non-Participating Respondents. CReply at
2. But Commission precedent remains clear that Varidesk, not OUII, bears the burden on this
issue. Thus, Commissioner Stayin and Chairman Johanson would decline to issue CDOs in this
investigation because Varidesk has withdrawn its request for such orders. See CSub at 13 n.4
and 15; Aerogel Insulation, Inv. No. 337-TA-1003, Comrn’n Op. at 1-2, 61, a]f’d 936 F.3d 1353
(Fed. Cir. 2019) (finding the appropriate remedy for violation of section 337 is a limited
exclusion order after complainant withdrew its request for a CDO before the ALJ); Blade Fuses,
Inv. No. 337-TA-114, Comm’n Op. at 3 n.7 and 41 n.203 (finding the appropriate remedy for
violation of section 337 is a GEO after complainant withdrew its request for a CDO before the
Commission). Varidesk’s attempt to adopt OUII’s submission does not (and cannot) reinstate
Varidesk’s request for the CDOs. The issuance of CDOs in this investigation creates a
precedent allowing a complainant to waive arguments at the Commission level, yet still prevail
on the same waived argument it belatedly attempts to resurrect. This precedent encourages
parties to shift and hide their arguments both before the ALJ and the Commission and creates
l9_
PUBLIC VERSION 	Y
With respect to the foreign Non-Participating Respondents, the Commission notes that
Varidesk did not request CDOs against the three foreign Respondents-In-Violation in its initial or
reply submissions. Thus, the Commission determines to issue CDOs against the domestic
Respondents-In-Violation but not the foreign Respondents-In-Violation. See 19 U.S.C.
§ 1337(t)(l).
C. Public Interest
Before issuing any remedial order, the Commission must “consider[] the effect of such
exclusion upon the public health and Welfare,competitive conditions in the United States
economy, the production of like or directly competitive articles in the United States, and United
States consumers.” See, e.g., 19 U.S.C. § l337(d)(l). “[T]he statute does not require the
Commission to determine that a remedial order would advance the public interest factors but
rather requires the Commission to consider whether issuance of such an order will adversely
affect the public interest factors.” Loom Kits, Inv. No. 337-TA-923, Comm’n Op., 2015 WL
5000874, at *9 (citation omitted).
OUII and Varidesk submit that “the public interest will not be adversely affected by the
issuance of the recommended remedy in this Investigation.” IASub at 2; see CSub at 21-22.
As noted by Varidesk and OUII, the Accused Products in this case—height-adjustable desk
platforms that infringe Varidesk’s Asserted Patents--are not the type of articles that raise _
significant public health and welfare concerns. IASub at 11-12; CSub at 21-22 (“The Accused
Products . . . are not necessary to fulfill any health, safety, or welfare needs, such as medical
devices, pharmaceuticals, or military hardware important to national security and defense”).
uncertainty for existing and future litigants before the Commission. We note that nothing
prevents Varidesk from later seeking CDOs if the GEO alone proves unsatisfactory.
20
PUBLIC VERSION
Moreover, Varidesk asserts that it could easily replace the market for the Accused Products
should they be excluded and that it has the capacity to do so. CSub at 22. Varidesk states that
non-infringing and licensed height-adjustable desk platforms are provided by numerous other
companies, including the Respondents that have settled with Varidesk. Id. In view of the
availability of Varidesk’s height-adjustable desks, OUII argues that “there is no evidence that the
proposed remedial orders would be expected to have a significant impact on either competitive
conditions in the United States or U.S. consumers.” IASub at 12. Finally, OUII states that “the
products sold by nongparticipating parties are manufactured abroad and so a remedial order
would not impact competitive conditions in the United States or U.S. consumers.” Id.
Varidesk submits that its requested relief, therefore, would have a negligible impact on U.S.
constuners. CSub at 22. In addition, Varidesk argues that a remedial order is unlikely to cause
an increase in customer cost because Varidesk already sells at a price point above the Accused
Products. Ia’.
The record in this investigation contains no evidence that a GEO or CDO would
adversely affect 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. See I9 U.S.C. §§ 1337(d)(1), (f)(1). The Commission requested
submissions from the public with respect to the public interest, but no third party responded to
the Cornmission’s Notice. See 84 Fed. Reg. 59417-418 (Nov. 4, 2019). In addition, Varidesk _
has a domestic industry and it and its licensees can readily replace the products at issue with their
own product. Thus, based on the record of this investigation, the Commission determines that
the public interest does not preclude the issuance of a GEO and CDOs.
21 "
PUBLIC VERSION
D. Bonding 	'
During the 60-day period of Presidential review under l9 U.S.C. § l337(j), “articles
directed to be excluded from entry under subsection (d) . . . shall . . . be entitled to entry under
bond prescribed by the Secretary in an amount determined by the Commission to be sufficient to
protect the complainant from any injury.” See 19 U.S.C. § l337(j)(3). “The Commission
typically sets the bond based on the price differential between the imported infringing product
and the domestic industry article or based on a reasonable royalty. However, where the
available pricing or royalty information is inadequate due to the default of the respondent, the
bond may be set at one hundred (100) percent of the entered value of the infringing product.”
Loom Kits, Inv. No. 337-TA-923, Comm’n Op., 2015 WL 5000874, at *ll (citations omitted).
The RD recommended that the bond amount be set at 100 percent of the entered value of
the accused products during the period of Presidential review in the event a violation of section
337 is found. RD at 42. OUII and Varidesk agreed that the bond should be set at 100 percent.
IASub at 2; CSub at 24. Varidesk explains that “[a]lthough an appropriate bond could be
calculated based on the difference between the average manufacturers’ suggested retail price for
the Varidesk domestic industry products and the Respondents’ infringing products, since the
Non-Participating Respondents did not participate in this Investigation and, therefore, provided
no discovery relating to pricing or royalty information, such a calculation would be necessarily
imprecise.” CSub at 24. Further, Varidesk argues that the “Accused Products are sold at
various prices and likely differ depending on customer and volume purchased.” Id. Therefore,
Varidesk argues “inasmuch as no reliable price differentiation can be determined, the
Commission should set a bond rate at 100% of the entered value of the infringing products,” as
recommended by the ALJ. Id.
22
PUBLIC VERSION
-Based on the record evidence, the Commission has determined to set the bond at 100
percent of the entered value of the infringing products during the period of Presidential review.
Here, Respondents-In-Violation chose not to participate in this investigation and provided no
discovery relating to pricing. As noted by Varidesk, the record shows the sales of imported
infringing products were made online at various price points and quantities, making the
calculation of an average price differential difficult. The Commission has set the bond at 100
percent in similar circumstances. See Loom Kits, Inv. No. 337-TA-923, Comm’n Op., 2015 WL
5000874, at *12 (setting the bond at 100 percent where “the record [] shows that a large number
of infringing loom kits are sold on the Intemet at different prices,” “the defaulting respondents in
th[e] investigation provided no discovery, including discovery about pricing,” and “[t]he record
[] lacks a reliable comparison of the price of the domestic industry products to the price of the
infringing products”). Accordingly, the Commission finds the appropriate bond amount is 100
percent of the entered value of the accused products. ‘
III. CONCLUSION
For the foregoing reasons, the Commission issues a GEO prohibiting the unlicensed
importation of certain platforms that sit on an existing desk or work surface and can be adjusted
to different heights that infiinge one or more of claims 1-2, 4, and 10-11 of the ’703 patent;
claims 11, 16, 18, and 22-26 ofthe ’809 patent; claims 1, 4-5, 11-12, 26, and 33-36 ofthe ’644
patent; and claims 20-21 and 40-50 of the ’793 patent, and CDOs against Respondents Albeit,
ATC Supply, Amazon Import, JV Products, Vanson Distributing, Vanson Group, and Smugdesk.
The Commission finds that the public interest does not preclude issuance of these remedial
orders. The Commission sets the bond during the period of Presidential review at 100 percent
of the entered value of the infringing products.
23'
By order of the Commission.
Issued: February 7, 2020
PUBLIC VERSION
7%
Lisa R. Barton
Secretary to the Commission
24
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND 	Inv. No. 337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Commission Opinion has been served
by hand upon the Commission Investigative Attomey, Andrew Beverina, Esq., and the
following parties as indicated, on February 7, 2020.
Wfifi
Lisa R. Barton”,Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainants Varidesk LLC :
Adam R. Hess, Esq. 	El Via Hand Delivery
SQUIRE PATTQN BQGGS 	Via Express Delivery
M StI'C$[, 	U M
Washington D.C. 20037 	U Ogerirst ass 3‘
Respondents:
Albeit LLC 	C] Via Hand Delivery
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902, Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
E1Monte, CA 91731
Via Express Delivery
Cl Via First Class Mail
Cl Other:
Cl Via Hand Delivery
Via Express Delivery
\:| Via First Class Mail
CI Other:
II] Via Hand Delivery
Via Express Delivery
El Via First Class Mail
Cl Other:
Cl Via Hand Delivery
Via Express Delivery
C] Via First Class Mail
U Other:
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND 	Inv. No. 337-TA-1125
COMPONENTS THEREOF
Certificate of Service —Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo, Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining On'zeal Import and Export Co., Ltd.
4"‘Floor, Building B, Jinhui Plaza
N0.486, South Hai Chang Road
Haining 314400, China
Smugdesk, LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
N0. 168 Xici 5*“Rd.
Mechanical Industrial Zone
Wuhu, Anhui, China
III Via Hand Delivery
E Via Express Delivery
Cl Via First Class Mail
El Other:
Cl Via Hand Delivery
Via Express Delivery
II] Via First Class Mail
Cl Other:
El Via Hand Delivery
El Via Express Delivery
Cl Via First Class Mail
El Other:
Cl Via Hand Delivery
Q Via Express Delivery
C! Via First Class Mail
Cl Other:
El Via Hand Delivery
[XIVia Express Delivery
Cl Via First Class Mail
Cl Other:
U Via Hand Delivery
[XIVia Express Delivery
Cl Via First Class Mail
{:1Other:
\:| Via Hand Delivery
E Via Express Delivery
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El Other:
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE
DESK PLATFORMS AND
COMPONENTS THEREOF
Investigation No.337-TA-1125
NOTICE OF COMMISSION DETERMINATION NOT TO REVIEW AN INITIAL
DETERMINATION GRANTING IN PART A MOTION FOR SUMMARY
DETERMINATION;SCHEDULE FOR FILING WRITTEN SUBMISSIONS ON
REMEDY,THE PUBLIC INTEREST,AND BONDING
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
SUMMARY: Notice is hereby given that the U.S. International Trade Commission
("Commission") has determined not to review the presiding administrative law judge's("AU")
initial determination("ID")(Order No. 33) granting in part a summary determination on
violation of section 337 by certain non-participating respondents in the above-captioned
investigation. The Commission is requesting briefing from the parties, interested government
agencies, and interested persons on the issues of remedy,the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Office ofthe General
Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone(202)205-3427. Copies of non-confidential documents filed in connection with this
investigation are or will be available for inspection during official business hours(8:45 a.m. to
5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission,500 E Street
SW., Washington, DC 20436, telephone(202)205-2000. General information concerning the
Commission may also be obtained by accessing its Internet server (https://www.usitc.gov). The
public record for this investigation may be viewed on the Commission's Electronic Docket
Information System ("EDIS")(https://edis.usitc.gov). Hearing-impaired persons are advised that
information on this matter can be obtained by contacting the Commission's TDD terminal,
telephone(202)205-1810.
SUPPLEMENTARY INFORMATION: On July 30, 2018,the Commission instituted this
investigation based on a complaint and supplements thereto filed on behalf of Varidesk LLC of
Coppell, Texas("Varidesk"). 83 FR 36621 (July 30, 2018). The complaint alleges violations of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the importation
into the United States, the sale for importation, and the sale within the United States after
importation of certain height-adjustable desk platforms and components thereof by reason of
infringement of one or more claims of U.S. Patent Nos. 9,113,703 ("the '703 patent"); 9,277,809
("the '809 patent"); 9,554,644 ("the '644 patent"); and 9,924,793 ("the '793 patent"). Id. The
complaint further alleges that an industry in the United States exists as required by section 337.
Id.
The Commission's notice of investigation named thirty-one respondents: (1)Albeit LLC
of San Francisco, California ("Albeit");(2)ATC Supply LLC of Plainfield, Illinois("ATC
Supply");(3)Shenzhen Atc Network Scienology CO., LTD. of Guangdong, China("Shenzhen
ATC");(4) Best Choice Products of Ontario, California("Best Choice");(5)Huizhou Chang He
Home Supplies Co., Ltd. of Guangdong, China("Chang He");(6)Dakota Trading, Inc. of
Emerson, New Jersey ("Dakota");(7)Designa Inc. of Guangdong, China ("Designa");
(8) Designa Group, Inc. of El Dorado Hills, California("Designa Group");(9)Eureka LLC of El
Dorado Hills, California ("Eureka");(10)LaMountain International Group LLC ofElk Grove,
California("LaMountain");(11) Amazon Import Inc. of El Monte, California("Amazon
Imports");(12)Hangzhou Grandix Electronics Co., Ltd. of Zhejiang, China ("Grandix");
(13)Ningbo GYL International Trading Co., Ltd. of Zhejiang, China("Ningbo GYL");
(14)Knape & Vogt Manufacturing Co. of Grand Rapids, Michigan("Knape & Vogt");(15)JV
Products Inc. of Milpitas, California("JV Products");(16) Vanson Distributing, Inc. of Milpitas,
California("Vanson Distributing");(17) Vanson Group, Inc. of Milpitas, California("Vanson
Group");(18) S.P. Richards Co. DBA Lorell of Smyrna, Georgia ("Lorell");(19)Nantong Jon
Ergonomic Office Co., Ltd. of Jiangsu, China("Nanotong Jon");(20)Jiangsu Omni Industrial
Co., Ltd. of Jiangsu, China("Jiangsu Omni");(21)OmniMax USA,LLC of Anna, Texas
("OmniMax USA");(22) Haining Orizeal Import and Export Co., Ltd. of Zhejiang, China
("Haining Orizeal");(23)Qidong Vision Mounts Manufacturing Co., Ltd. of Jiangsu, China
("Vision Mounts");(24) Hangzhou KeXiang Keji Youxiangongsi of Hangzhou, China
("Hangzhou KeXiang");(25)Smugdesk, LLC of La Puente, California("Smugdesk");
(26) Venditio Group, LLC of Elkton, Florida("Venditio");(27) Versa Products Inc. of Los
Angeles, California("Versa");(28) Victor Technology, LLC of Bolingbrook, Illinois("Victor");
(29)CKnapp Sales, Inc. DBA Vivo of Goodfield, Illinois ("Vivo");(30) Wuhu Xingdian
Industrial Co., Ltd. of Anhui, China("Wuhu Xingdian"); and (31) Wuppessen, Inc. of Ontario,
California("Wuppessen"). Id. The Office of Unfair Import Investigations("OUII") was also
named as a party in this investigation. Id.
During the course of the investigation, Varidesk settled with the following respondents:
Venditio, Jiangsu Omni, OmniMax USA,Knape & Vogt, Wuppessen, Victor, Versa, Designa,
Designa Group, Eureka, Chang He, Vision Mounts, Vivo, Nanotong Jon, Best Choice, Grandix,
Hangzhou KeXiang, Lorell, and Dakota. Order No. 7, unreviewed, Notice (Sept. 18, 2018);
Order No. 11, unreviewed, Notice (Sept. 25, 2018); Order No. 12, unreviewed, Notice (Oct. 4,
2018); Order No. 13, unreviewed, Notice (Oct. 4, 2018); Order No. 16, unreviewed, Notice(Nov.
9, 2018); Order No. 18, unreviewed, Notice(Nov. 29, 2018); Order No. 20, unreviewed, Notice
(Feb. 21, 2019); Order No. 23, unreviewed, Notice(Mar. 12, 2019); Order No. 25, unreviewed,
Notice(Apr. 5, 2019); Order No. 31, unreviewed, Notice(May 16, 2019). In addition, the
investigation terminated as to LaMountain based on a consent order stipulation. Order No. 15,
unreviewed, Notice (Oct. 22, 2018). The investigation has also previously terminated as to
certain claims of each asserted patent. Order No. 30, unreviewed, Notice(May 13, 2019).
2
On April 11, 2019, Varidesk moved for summary determination of a violation ofsection
337 as to the remaining eleven respondents, who were served with a copy ofthe complaint, but
have not filed a response or participated in the investigation. On April 24,2019, Varidesk filed a
supplement to the motion. The remaining respondents (collectively,"the Non-Participating
Respondents") are (1) Albeit,(2) ATC Supply,(3)Shenzhen ATC,(4)Amazon Imports,
(5)Ningbo GYL,(6)JV Products,(7) Vanson Distributing,(8) Vanson Group,(9)Haining
Orizeal,(10)Smugdesk, and(11) Wuhu Xingdian. On April 26, 2019, OUII filed a response
supporting Varidesk's motion in substantial part.
On September 13, 2019, the AUJ issued Order No. 33, the subject ID, and his
Recommended Determination("RD")on remedy and bonding. The ID grants the motion in part.
Specifically, the All found, inter alio,(1)that Varidesk established the importation requirement
as to each Non-Participating Respondent, except for Haining Orizeal;(2)that Varidesk
established infringement as to all accused products and all remaining asserted claims(claims 1-
2, 4, and 10-11 ofthe '703 patent; claims 11, 16, 18, and 22-26 ofthe '809 patent; claims 1,4-
5, 11-12, 26, and 33-36 of the '644 patent; and claims 20-21 and 40-50 ofthe '793 patent); and
(3)that Varidesk satisfied the domestic industry requirement for each asserted patents. In
addition, the All recommended that the Commission issue a general exclusion order and impose
a 100 percent bond during the period of Presidential review. The AUJ also recommended the
Commission not issue cease and desist orders directed to the Non-Participating Respondents.
Having examined the record in this investigation, including the ID,the Commission has
determined not to review the ID. Thus, the Commission has determined that there is a violation
of section 337 as to Albeit, ATC Supply, Shenzhen ATC,Amazon Imports, Ningbo GYL,JV
Products, Vanson Distributing, Vanson Group, Smugdesk, and Wuhu Xingdian, but not as to
Haining Orizeal.
In connection with the final disposition ofthis investigation, the Commission may
(1)issue an order that could result in the exclusion ofthe 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 ofsuch
articles. Accordingly, the Commission is interested in receiving written submissions that address
the form of remedy, if any, that should be ordered. If a 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 involving other types of entry either
are adversely affecting it or likely to do so. For background, see Certain Devicesfor Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at
7-10(December 1994). In addition, if a 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 Components Thereofand
Packaging Therefor, Inv. 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,Inv. No.
337-TA-959, Comm'n Op.(Feb. 13, 2017). Specifically, if Complainant seeks a cease and desist
order against a 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
3
and desist order is sought. If Complainant also relies on other significant domestic
operations that could undercut the remedy provided by an exclusion order, identify
with citations to the record such information as to each respondent against whom a
cease and desist order is sought.
2. In relation to the infringing products, please identify any information in the record,
including allegations 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.
3. Please discuss any other basis upon which the Commission could enter a cease and
desist order.
If the Commission contemplates some form of remedy, it must consider the effects ofthat
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 ofthis investigation.
If the 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 of July 21, 2005. 70 FR 43251 (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 ofthe Treasury. The
Commission is therefore interested in receiving submissions concerning the amount of the bond
that should be imposed if a remedy is ordered.
WRITTEN SUBMISSIONS: Parties to the investigation, interested government agencies, and
any other interested parties are encouraged to file written submissions on the issues ofremedy,
the public interest, and bonding. Such submissions should address the recommended
determination by the All on remedy and bonding.
Complainant and OUII are requested to submit proposed remedial orders for the
Commission's consideration. Complainant is also requested to state the date that the patents
expire and the HTSUS numbers under which the accused products are imported. Complainant is
further requested to supply the names of known importers ofthe products at issue in this
investigation. The written submissions and proposed remedial orders must be filed no later than
close of business on November 13,2019. Reply submissions must be filed no later than the
close of business on November 20,2019. No further submissions on any ofthese issues will be
permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document electronically on or
before the deadlines stated above and submit 8 true paper copies to the Office ofthe Secretary by
noon the next day pursuant to Commission Rule 210.4(0, CFR 210.4(0. Submissions should
refer to the investigation number("Inv. No. 337-TA-1125")in a prominent place on the cover
4
page and/or the first page. (See Handbook for Electronic Filing Procedures,
https://www.usitc.gov/secretary/documents/handbook on_electronic filink.pdf). Persons with
questions regarding filing should contact the Secretary(202-205-2000.
Any person desiring to submit a document to the Commission in confidence must request
confidential treatment. All such requests should be directed to the Secretary to the Commission
and must include a full statement ofthe reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission
is properly sought will be treated accordingly. A redacted-non-confidential version ofthe
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 Commission for 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 ofthis 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 personnel, solely for cybersecurity purposes (all contract personnel will
sign appropriate nondisclosure agreements). All nonconfidential written submissions will be
available for public inspection at the Office ofthe Secretary and on EDIS.
The authority for the Commission's determination is contained in section 337 ofthe
Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 ofthe Commission's Rules of
Practice and Procedure(19 CFR part 210).
By order ofthe Commission.
Issued: October 29,2019
Lisa R. Barton
Secretary to the Commission
5
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND Inv. No.337-TA-1125
COMPONENTS THEREOF
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served by hand
upon the Commission Investigative Attorney, Andrew Beverina, Esq., and the following parties
as indicated, on October 30,2019.
On Behalf of Complainants Varidesk LLC:
Adam R. Hess, Esq.
VENABLE LLP
600 Massachusetts Avenue,NW
Washington, DC 20001
Respondents:
Albeit LLC
1351 Broadway St.
San Francisco, CA 94109
ATC Supply LLC
12604 Canterbury Dr.
Plainfield, IL 60585-3000
Shenzhen Atc Network Scienology Co., Ltd.
Room 1902,Zian Business Building,
The Xinan Second Road, Baoan District
Shenzhen, Guangdong 518000 China
Amazon Import Inc.
9910 Baldwin Place
El Monte, CA 91731
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW,Room 112
Washington, DC 20436
o Via Hand Delivery
El Via Express Delivery
1:E Via First Class Mail
o Other:
ID Via Hand Delivery
I=1 Via Express Delivery
M Via First Class Mail
El Other:
El Via Hand Delivery
I=1 Via Express Delivery
2] Via First Class Mail
El Other:
El Via Hand Delivery
I=1 Via Express Delivery
•Via First Class Mail
El Other:
El Via Hand Delivery
El Via Express Delivery
El Via First Class Mail
1:1 Other:
CERTAIN HEIGHT-ADJUSTED DESK PLATFORMS AND
COMPONENTS THEREOF
Certificate of Service — Page 2
Ningbo GYL International Trading Co., Ltd.
Mingbin Road 228
Luoto Area
Zhenhai 315202, Ningbo,Zhejian, China
JV Products Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Distributing, Inc.
1825 Houret Ct.
Milpitas, CA 95035
Vanson Group,Inc.
1825 Houret Ct.
Milpitas, CA 95035
Haining Orizeal Import and Export Co., Ltd.
4th Floor, Building B,Jinhui Plaza
No.486, South Hai Chang Road
Haining 314400, China
Smugdesk, LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
Wuhu Xingdian Industrial Co., Ltd.
No. 168 Xici 5th Rd.
Mechanical Industrial Zone
Wuhu, Anhui, China
Inv. No.337-TA-1125
O Via Hand Delivery
O Via Express Delivery
O Via First Class Mail
CI Other:
CI Via Hand Delivery
0 Via Express Delivery
Z Via First Class Mail
CI Other:
CI Via Hand Delivery
CI Via Express Delivery
O Via First Class Mail
CI Other:
CI Via Hand Delivery
CI Via Express Delivery
O Via First Class Mail
CI Other:
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0 Via First Class Mail
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GI Other:
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CI Via Express Delivery
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CI Other:
PUBLIC VERSION
r
UNITED STATES INTERNATIONAL TRADE COMMISSION
WASHINGTON, D.C. 20436
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE 	Investigation N0. 337-TA-1125
DESK PLATFORMS AND
COMPONENTS THEREOF
ORDER NO.“33: INITIAL DETERMINATION GRANTING IN PART
COMPLAINANT’S MOTION FOR SUMMARY
- 	DETERMINATION THAT A VIOLATION OF SECTION 337 HAS
OCCURRED AND RECOMMENDED DETERMINATION ON
REMEDY AND BONDING
(September 13, 2019)
2
I
PUBLIC VERSION ‘
TABLE OF CONTENTS
INTRODUCTION ....................................................................................................... ..
A. Institution of the Investigation and Procedural History ................................... ..
B. The Pending Motion for Summary Determination .......................................... ..
C. The Private Parties ........................................................................................... ..
1. Complainant Varidesk ......................................................................... ..
2. Respondent Albeit ................................................................................ ..
3. Respondents ATC Supply and Shenzhen ATC ................................... ..
4. Respondent Amazon Import ................................................................ ..
5. Respondent Ningbo GYL .................................................................... ..
1
6. Respondents JV Products, Vanson Distributing, and Vanson Group....
7. Respondent Haining Orizeal ................................................................ ..
8. Respondent Smugdesk ......................................................................... ..
9. Respondent Wuhu Xingdian ................................................................ ..
D. The Asserted Patents ........................................................................................ ..
1. The ’703 Patent .................................................................................... ..
2. The ’809 Patent .................................................................................... ..
3. The ’644 Patent .................................................................................... ..
4. The ’793 Patent .................................................................................... ..
E. The Accused Products ...................................................................................... ..
IURJSDICTION .......................................................................................................... ..
GENERAL PRINCIPLES OF APPLICABLE LAW .................................................. ..
A. Summary Determination .................................................................................. ..
Page
1
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11
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PUBLIC VERSION
TABLE OF CONTENTS (CONT’D)
B. Importation; ...................................................................................................... ..
C. Infringement ..................................................................................................... ..
D. Validity ......................................................................................................... ..
E. ' Domestic Industry ............................................................................................ ..
IV. VALIDITY .................................................................................................................. ..
V. VIOLATIONS OF SECTION 337 .............................................................................. ..
A. Importation ....................................................................................................... ..
Page
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16
16
....l7
1. Albeit...................................... ..:............................................................... ..l7
2. ATC Supply and-Shenzhen ATC ......................................................... ..
3. Amazon Import .................................................................................... ..
4. Ningbo GYL ........................................................................................ ..
5. JV Products, Vanson Distributing, and Vanson Group ....................... ..
6. Haining Orizeal .................................................................................... ..
7. Smugdesk ............................................................................................. ..
B. Infringement .......................... ........................................................................ ..
1. The ’703 Patent .................................................................................... ..
2. The ’809 Patent .................................................................................... ..
3. The ’644 Patent .................................................................................... ..
4. The ’793 Patent .................................................................................... ..
VI. TECHNICAL PRONG OF THE DOMESTIC INDUSTRY REQUIREMENT ...........
VII. ECONOMIC PRONG OF THE DOMESTIC TNDUSTRY REQUIREMENT ............
VIII. CONCLUSIONS OF LAW ......................................................................................... ..
IX. INITIAL DETERMINATION ..................................................................................... ..
. 	‘
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30
31‘
33
34
\
PUBLIC VERSION
TABLE OF CONTENTS (CONT’D)
RECOMMENDED DETERMINATION ON REMEDY AND BONDING .............
A. General Exclusion Order ................. ..;............................................................ ..
1.
2.
Circumvention of Limited Exclusion Orders.......................... ..........
Pattern of Importation and Identification of the Source of Infringing
Page
34
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Goods ....................................................................................................... ..37
B. Cease and Desist Orders ...................................................................................... ..38
C. - Bond...
ORDER ..........
.................................................................................................................. ..40
................................................................................................................. .. 42
iii
PUBLIC VERSION .
I. INTRODUCTION 	»
A. Institution of the Investigation and Procedural History
By publication of a notice in the Federal Register on July 30, 2018, pursuant to
subsection (b) of section 337 of the Tariff Act of 1930, as amended, the Commission instituted
this investigation to determine:
[W]hether there is a violation of subsection (a)(l)(B) of section 337 in the
importation into the United States, the sale for importation, or the sale
within the United States afier importation of products identified in
paragraph (2) by reason of infringement of one or more of claims 1-4 and
6-11 ofthe ’703 patent [U.S. Patent No. 9,113,703]; claims 1-3, 5-18, and
22-28 of the ’809 patent [U.S. Patent No. 9,277,809]; claims 1-15, 19,
21-23, 25-26, and 28-36 ofthe ’644 patent [U.S. Patent No. 9,554,644]; and
claims 1-11 and 20-50 of the ’793 patent [U.S. Patent No. 9,924,793]; and
whether an industry in the United States exists as required by subsection
(a)(2) of section 337.
83 Fed. Reg. 36621 (July 20, 2018). 	.
The Commission named as complainant Varidesk LLC (“Varidesk” or “Complainant”).
Id. 	‘
The Commission named the following companies as respondents: Albeit LLC (“Albeit”);
ATC Supply LLC (“ATC Supply”); Shenzhen ATC Network Scienology Co., Ltd. (“Shenzhen
ATC”); Best Choice Products (“Best Choice”); Huizhou Chang He Home Supplies Co., Ltd.
(“Chang He”); Dakota Trading, Inc. (“Dakota”); Designa Inc. (“Designa”); Designa Group, lnc.
(“Designa Group”); Eureka LLC (“Eureka”); LaMountain International Group LLC
(“LaMountain”); Amazon Imports Inc. (“Amazon Imports”); Hangzhou Grandix Electronics Co.,
Ltd. (“Grandix”); Ningbo GYL International Trading Co., Ltd. (“Ningbo GYL”); Knape & Vogt
Manufacturing Co. (“Knape & Vogt”); JV Products Inc. (“JV Products”); Vanson Distributing,
Inc. (“Vanson Distributing”); Vanson Group, Inc. (“Vanson Group”); S.P..Richards Co. d/b/ai
f
PUBLIC VERSION
Lorell (“Lorell”); Nantong Jon Ergonomic Office Co.,_Ltd. (“Nantong Jon”); Jiangsu Omni
Industrial Co., Ltd. (“Jiangsu Omni”); OnmiMax USA, LLC (“OmniMax USA”); Haining
Orizeal Import and Export Co., Ltd. (“Haining Orizeal”); Qidong Vision Mounts Manufacturing
Co., Ltd. (“Vision Mounts”); Hangzhou KeXiang Keji Youxiangong (“Hangzhou KeXiang”);
Smugdesk, LLC (“Smugdesk”); Venditio Group, LLC (“Venditio”); Versa Products Inc.
(“Versa”); Victor Technology, LLC (“Victor”); CKnapp Sales, Inc. d/b/a Vivo (“Vivo”); Wuhu
Xingdian Industrial Co., Ltd. (“Wuhu Xingdian”); and Wuppessen, Inc. (“Wuppessen”). Id.
The Office of Unfair Import Investigations (“Staff”) was also named as a party to this
investigation. Id. 	I
Order No. 9 issued on September 6, 2018, and set the target date for this investigation at
16 months, to December 2, 2019. Due to a lapse in appropriations leading to a 35-day shutdown
of operations, the target date was subsequently extended by six weeks to January 13, 2020,
thereby making the final initial determination (“ID”) on violation due no later than September
13, 2019. Order No. 24 (Feb. 21, 2019), unreviewed, Notice (March 11, 2019).
On August l6, 2018, Varidesk and Venditio filed a joint motion to terminate the
investigation as to Venditio. EDIS Doc. ID 653221. An ID granting the motion issued on
August 28, 2018. Order No. 7, unreviewed, Notice (Sept. 18, 2018). ’
On August 16, 2018, Varidesk, Jiangsu Omni, and OmniMax USA filed a joint motion to
terminate the investigation as to Jiangsu Omni and OrnniMax based on a settlement agreement.
EDIS Doc. ID 654228. An ID granting the motion issued on September 10, 2018. Order No. 11,
unreviewed, Notice (Sept. 25, 2018). _
On September 5, 2018, Varidesk and Knape & Vogt filed a joint motion to terminate the
investigation as to Knape & Vogt based on a settlement agreement. EDIS Doc. ID 654939. An
2
PUBLIC VERSION
ID granting the motion issued on September 20, 2018. Order No. 12, unreviewed, Notice (Oct.
4, 2018). 	‘ .
Also on September 5, 2018, Varidesk and LaMountain filed a joint motion to tenninate
the investigation as to LaMountain based on a consent order stipulation. EDIS Doc. ID 654941.
An ID granting the motion issued on September 24, 2018. Order No. 13, unreviewer/l,7Notice
(om. 4, 2018).
On September 19, 2018, Varidesk and Wuppessen filed a joint motion to terminate the
investigation as to Wuppessen based on a settlement agreement. EDIS Doc. ID 656225. An ID
granting the motion issued on October 2, 2018. Order No. 15, unreviewed, Notice (Oct. 22,
2018) 	“
On September 26, 2018, Varidesk and Victor filed ajoint motion to terminate the
investigation as to Victor based on a settlement agreement. EDIS Doc. ID 656993. An ID »
granting the motion issued on October 17, 2018. Order No. 1-6,unreviewed, Notice (Oct. 22,
2018)
On October 19, 2018, Varidesk and Versa filed a joint motion to terminate the
investigation as to Versa based on a settlement agreement. EDIS Doc. ID 659346. An ID
granting the motion issued on November 1, 2018. Order No. 18, unreviewed, Notice (Nov. 29,
2018).
On December 12, 2018, Varidesk and Designa, Designa Group, and Eureka filed a joint
motion to terminate the investigation as to Designa, Designa Group, and Eureka based on a
settlement agreement. EDIS Doc. ID 663762. An ID granting the motion issued on January 29,
2019. Order No. 20, unreviewed, Notice (Feb. 21, 2019).
3
PUBLIC VERSION
On February 4, 2019, Varidesk and Chang He filed a joint motion to terminate the
investigation as to Chang He based on a settlement agreement. EDIS Doc. ID 665843. An ID
granting the motion issued on March 6, 2019. Order No. 23, unreviewed, Notice (Mar. 12,
2019).
On February 19, 2019, Varidesk and respondents Vision Mounts, Vivo, Nantong Jon, '
Best Choice, Grandix, Hangzhou KeXiang, and Lorell filed a joint motion to terminate the
investigation as to those respondents based on a settlement agreement. EDIS Doc. ID 667549.
An ID granting the motion issued on March 6, 2019. Order No. 25, unreviewed, Notice (Apr. 5,
2019).
On April 19, 2019, Varidesk and Dakota filed a joint motion to terminate the j
investigation as to Dakota based on a settlement agreement. EDIS Doc. ID 673599. An ID
granting the motion issued on April 30, 2019. Order No. 30, unreviewed, Notice (May 16,
2019).‘ i 	_ 	~
The parties submitted claim construction briefs addressing certain tenns in the asserted
patents and participated in a one-day Markman hearing on December 10, 2018. The parties filed
a notice on March 7, 2019, informing the administrative law judge that the term “member” no
longer needed to be construed due to withdrawal of all asserted claims in which that tenn
appears. EDIS Doc. ID 669341. Order No. 27 construing the disputed claims issued on April 1,
2019.
1The respondents remaining in this investigation are the following: Albeit, ATC Supply,
Shenzhen ATC, Amazon Imports, Ningbo GYL, JV Products, Vanson Distributing, Vanson
Group, Haining Orizeal, Smugdesk, and Wuhu Xingdian (collectively, “Non-Participating
Respondents”). All named respondents were served with a copy of the complaint, but none of
the Non-Participating Respondents filed a response or participated in the investigation. See 19
C.F.R. § 210.l6(a)(4); see also StaffResp. at 4 n.7.
4
PUBLIC VERSION
On April 11, 2019, Varidesk filed a motion seeking termination of this investigation as to
the following claims based on withdrawal of the complaint:
- U.S. Patent No. 9,113,703: claims 3 and 6-9; 0
' U.S. Patent No. 9,277,809: claims 1-3, 5-10, 12-15, 17, and 27-28;
- U.S. Patent No. 9,554,644: claims 2, 3, 6-10, 13-15, 19, 21-23, 25, and 28-32; and
' U.S. Patent No. 9,924,793: claims 1-11 and 22-39. '
EDIS Doc. ID 672774. An ID granting the motion issued on April 24, 2019. Order No. 30,
unreviewed, Notice (May 13, 2019).2
B. The Pending Motion for Summary Determination
On April 11, 2019, Varidesk filed the pending Motion for Stnnmary Determination
Against the Non-Participating Respondents (“Mot.”), an accompanying memorandum (“Mem.”),
and a statement of undisputed material facts in support thereof (“SOF”). Motion Docket No.
112_5-028.Varidesk subsequently filed a supplement (“Suppl.”) (EDIS Doc. ID 674049) to its
motion.
With the pending motion, Varidesk seeks the following:
(1) an initial determination that [the Non-Participating Respondents]
have violated Section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. § 1337, through their importation into the United States, sale
for importation, and/or sale within the United States after
importation of certain height-adjustable desk platfonns and
components thereof (collectively, “Accused Products”), that
infringe one or more of four U.S. patents owned by Varidesk . . . ;
2 The following claims remain asserted in this investigation: claims 1, 2, 4, 10, and 11 of the ’703
patent; claims 11, 16, 18, and 22-26 of the ’809 patent; claims 1, 4, 5, 11, 12, 26, and 33-36 of
the ’644 patent; and claims 20, 21, 40-44, and 45-50 of the ’793 patent. The \’703, ’809, ’644,
and ’793 patents will collectively be referred to as the “Asserted Patents.”
5.
Mot. at 1-2.
None of the Non-Participating Respondents filed a response to the pending motion for
PUBLIC VERSION
(2) an initial determination that Varidesk has satisfied both the
technical and economic prongs of the domestic industry requirement
of 19 U.S.C. § 1337(a)(3); and V
(3) a determination recommending that the Commission issue a
general exclusion order pursuant to 19 U.S.C. § 1337(d)(2) (and in
no event less than a limited exclusion order against the Non
Participating Respondents under 19 U.S.C. § 1337(d)(l)); issue
cease and desist orders pursuant to 19 U.S.C. § 1337(i)(l) directed
to the Non-Participating Respondents; and set the bond during the
Presidential review period at 100 percent of the entered value of the
Accused Products.
summary determination.3
The Staff filed a response (“Staff Resp.”) supporting the requested relief for the most
part. The Staff did not agree that a violation of section 337 should be found as to respondent
Haining Orizeal, or that cease and desist orders should be issued as to the Non-Participating
Respondents in the event a violation of section 337 is found.
C.
Varidesk is a Texas limited liability corporation having its headquarters at 1221 South
Belt Line Road, #500, Coppell, Texas 75019. Mem. at 1. Varidesk is in the business of
designing and manufacturing height-adjustable desks. See id. Varidesk is the owner by
assignment of the four patents asserted in this investigation. Mot. Ex. 1 (‘"703 patent ) Mot
The Private Parties
1. Complainant Varidesk
EX. 2 (M809 patent”); Mot. Ex. 3 (‘"644 patent”); Mot. Ex. 4 (‘"793 patent”).
3Varidesk mailed service copies of the pending motion to the Non-Participating Respondents on
April 24, 2019. EDIS Doc. ID 674099 (Amended Certificate of Service).
- 	6
PUBLIC VERSION
2. Respondent Albeit
Albeit is a limited liability company organized and existing under the laws of California
with a principal place of business at 1351 Broadway Street, San Francisco, Califomia 94109.
Complaint at 7. Albeit imports into the United States and/or sells within the United States after
importation height-adjustable desk platforms and components thereof tmder the name
“HeroDesk.” Id The desks are manufactured by, among others, Grandix and Wuhu Xingdian.
Id 	I
L
3. Respondents ATC Supply and Shenzhen ATC
. ATC Supply is a limited liability company organized and existing under the laws of
Illinois vsdtha principal place of business at 12604 Canterbury Drive, Plainfield, Illinois 60585.
Complaint at 7. Shenzhen ATC is a company organized and existing under the laws of the
People’s Republic of China. Id at 8. Varidesk alleges that the two companies are related and
under common ownership and/or control. Id. These companies import and/or sell afier
importation within the United States desks labeled ANNT Lumsing. Id.
4. Respondent Amazon Import
Amazon Import is a company organized and existing under the laws of California with a
principal place of business at 9910 Baldwin Place, El Monte, California 31731. Complaint at 12
Amazon Import imports and/or sells within the United States after importation height-adjustable
\
desks labeled “Fezibo.” Id. at 12-13.
7
PUBLIC VERSION
5. Respondent Ningbo GYL
Ningbo GYL4 is a company organized and existing under the laws of the Peop1e’s
Republic of China vxdtha principal place of business at Mingbin Road 228, Luoto Area, Zhenhai
31502, Ningbo, Zhejiang, China. Complaint at 14; July 18, 2018 Supplement to Complaint at 2.
Ningbo GYL imports into the United States and/or sells and markets to others for importation
into the United States height-adjustable desks. Id
6. Respondents JV Products, Vanson Distributing, and Vanson Group
JV Products, Vanson Distributing, and Vanson Group are companies organized and
existing under the laws of Califomia. All three companies have a principal place of business at
1825 Houret Court, Milpitas, Califomia 95035. Complaint at 15. The companies are alleged to
be related companies under common ownership and control. Id. They import and/or sell within
the United States after importation certain height-adjustable desk platforms and components
thereof under the brand name Logix. Id. at 16.
7. Respondent Haining Orizeal
Haining Orizeal is a company organized and existing under the laws of the People’s
Republic of China, with its principal place of business and headquarters at 4th Floor, Building B
Jinhui Plaza No.486, South Hai Chang Road, Haining 314400. Complaint at 18. Haining
Orizeal manufactures and/or sells height-adjustable desk platforms and components thereof. Id.
at 18-19.
4Ningbo GYL did not file a response to the complaint and has not participated in this
investigation. Lisa Lee, President of Ningbo GYL, did send an October 16, 2018, email to the
Staff stating that Ningbo GYL has “no desire or resources to fight an expensive legal
contest . . . .” EDIS Doc. ID 659283. She also stated her belief that the elements of the height
adjustable desks are known. Id
8
PUBLIC VERSION
8. Respondent Smugdesk
Smugdesk is a company organized and existing under the laws of Colorado with a
principal place of business at 14839 Proctor Ave, Suite D, La Puente, Califomia 91746.
Complaint at 20; July 2, 2018 Supplement to Complaint at 1. Smugdesk sells within the United
States after importation certain height-adjustable desk platforms and components thereof under
the brand name Smugdesk. Complaint at 20.
9. Respondent Wuhu Xingdian 	p
Wuhu Xingdian is a company organized and existing under the laws of the People’s
Republic of China, with its principal place of business and headquarters at No. 168, Xici 5th
Road, Mechanical Industrial Zone, Wuhu, Anhui, China 241100. Complaint at 22; July 18, 2018
Supplement to Complaint at 3. Wuhu Xingdian imports into the United States and/or sells to
others for importation into the United States certain height-adjustable desk platfonns and
components thereof. Complaint at 22.
D. The Asserted Patents
1. The ’703 Patent
The ’703 patent is titled “Adjustable Desk Platfonn” and issued on August 25, 2015,
from an application filed on August 29, 2013. The ’703 patent claims priority to provisional
application no. 61/651,101 filed on May 24, 2012. Daniel Flaherty is listed as the named
inventor, and Varidesk owns the patent by assignment. Mot. Ex. 1.
2. The ’809 Patent
The ’809 patent is titled “Adjustable Desk Platform” and issued on March 8, 2016, from
an application filed on May 18, 2015. The ’809 patent claims priority to provisional application
no. 61/651,101 filed on May 24, 2012. Daniel G. Flaherty, David Patton, and Sheng Chien
9
PUBLIC VERSION
Wang are listed as the named inventors, and Varidesk owns the patent by assigmnent. Mot. 1
Ex. 2.
3. The ’644 Patent 	V
The ’644 patent is titled “Adjustable Desk Platform” and issued on January 31, 2017,
from an application filed on February 3, 2016. The ’644 patent claims priority to provisional
application no. >61/651,101filed on May 24, 2012. Daniel G. Flaherty, David Patton, and Sheng
Chien Wang are listed as the named inventors, and Varidesk owns the patent by assignment.
Mot. Ex. 3.
4. The ’793 Patent 	'
The ’793 patent is titled “Adjustable Desk Platform” and issued on March 27, 2018, from
an application filed on December 14, 2016. The ’793 patent claims priority to provisional
application no. 61/651,101 filed on May 24, 2012. Daniel G. Flaherty, David Patton, and Sheng
C. Wang are listed as the named inventors, and Varidesk owns the patent by assignment. Mot.
Ex. 4. 	~
E. The Accused Products 	‘
Varidesk alleges that the following products infringe the asserted claims of the Asserted
Patents:
Product . 	Respondentis)
Halter ED-258 	Ningbo GYL
I_-IeroDesk 	Albeit
Wuhu Xingdian
ANNT Lumsing Standing Desk 	ATC Supply
Shenzhen ATC
Haining Orizeal
10
PUBLIC VERSION
Product 	Respondent(s)
Fezibo Standing Desk Convener 	Amazon Import
Haining Orizeal 	~
Fezibo Height Adjustable Standing Desk Amazon Import
Haining Orizeal
Logix Desk Stand Up Desk 	JV Products
4 	.Vanson Distributing
Vanson Group V
Wuhu Xingdian
Smugdesk Standing Desk 	Smugdesk
See Mem. at 8; Babcock Aff. at 3.
II. JURISDICTION
No party has contested the Commission’s subject matter jurisdiction over this
investigation. Section 337 of the Tariff Act prohibits the importation into the United States, the
sale for importation into the United States, or the sale within the United States afier importation
by the owner, importer, or consignee of articles that infringe a valid and enforceable patent, if an
industry in the United States relating to the articles protected by the patent exists or is in the
process of being established. 19 U.S.C. §§ l337(a)(l)-(2). ’Varidesk’s complaint statesia cause
of action under section 337. It is therefore found that the Commission has jurisdiction over the
subject matter of this investigation. "
No party has contested the C0mmission’s in rem jurisdiction over the accused products.
Accordingly, it is found that the Commission has in rem jurisdiction over all products accused
UI1d€l'theasserted claims of the Asserted Patents.
ll
PUBLIC VERSION
\
No party has contested the Commission’s personal jurisdiction over it. In particular, the
Non-Participating Respondents have all been given notice of this investigation at least through
service of the complaint and notice of investigation, as well as through service of the pending
motion for summary determination. It is therefore found that the Commission has personal
jurisdiction over all parties. 	. 1
III. GENERAL PRINCIPLES OF APPLICABLE LAW
A. Summary Determination 	‘
Commission Rule 2l0.18(b) provides that a summary determination may be granted “if
pleadings and any depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to summary determination as a matter of law.” 19 C.F.R. § 2l0.l8(b).
See, e.g., Amgen Inc. v. Int ’l Trade Comm ‘n, 565 F.3d 846, 849 (Fed. Cir. 2009); Hazani v. Int ’l
Trade "Comm‘n, 126 F.3d 1473, 1476 (Fed. Cir. 1997); Certain Tool Handles, Tool Holders, Tool
Sets, and Components Therefor, lnv. No. 337-TA-483, 2003 WL 21463001, Order No. 14 (June
20, 2003) (“The moving party has the burden of demonstrating that there is no genuine issue of
materialfact and that it is entitled to summary determination as a matter of law[.]”) (unreviewed
initial determination).
“Issues of fact are genuine only ‘if the evidence is such that a reasonable [fact finder]
could retum a verdict for the nonmoving party.”’ Crown Operations Int ’l,Ltd. v. Solutia Inc. ,
289 F.3d 1367, 1375 (Fed. Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). The evidence “must be viewed in the light most favorable to the party opposing the
motion, with doubts resolved in favor of the nomnovant.” Id. at 1375 (intemal citations
omitted). The trier of fact should “assure itself that there is no reasonable version of the facts, on
12
\
PUBLIC VERSION
the summary judgment record, whereby the nomnovant could prevail, recognizing that the
purpose of summary judgment is not to deprive a litigant of a fair hearing, but to avoid an
unnecessary trial.” EMI Group N. Am., Inc. v. Intel Corp., 157 F.3d 887, 891 (Fed. Cir. 1998).
“In other words, ‘summary judgment is authorized when it is quite clear what the truth is,’ and
the law requires judgment in favor of the movant based upon facts not in genuine dispute.”
Paragon Podiatry Lab., Inc. v. KLM Labs., Inc., 984 F.2d 1182, 1185 (Fed. Cir. 1993) (internal
citations omitted); see also Certain Dynamic Random Access Memory Devices and Products t
Containing Same, Inv. No. 337-TA-595, Order No. 14 at 8-9 (Dec. 6, 2007).
B. Importation l
A violation of section 337(a)(l)(B) requires “importation into the United States, the sale
for importation, or the sale within the United States after importation by the owner, importer, or
consignee[.]” 19 U.S.C. § 1337(a)(1)(B). “[I]mportation and infringement are separate and
independent requirements of Section 337 . . . .” Certain Absorbent Garments, Inv. No.
337-TA-508, Order No. 16 at\4 (Aug. 20, 2004). A single importation of an accused product is
sufficient to satisfy the importation requirement of section 337. Certain DC-DC Controllers and
Products Containing Same, Inv. No. 337-TA-698, Order No. 29 at 3 (June 18, 2010).
C. Infringement
It is a violation of section 337 for a respondent to engage in “[t]he importation into the
United States, the sale for importation, or the sale within the United States after importation . . .
of articles that —(i) infringe a valid and enforceable United States patent[.]” 19 U.S.C.
§ 1337(a)(1)(B). Under 35 U.S.C. §271(a), direct infringement consists of making, using,
offering to sell, or selling a patented invention without consent of the patent owner. The
complainant in a section 337 investigation bears the burden of proving infringement of the
13
PUBLIC VERSION
asserted patent claims by a “preponderance of the evidence.” Certain Flooring Products, Inv.
N0. 337-TA-443, Comm’n Notice of Final Determination of No Violation of Section 337, 2002
WL 448690, at *59, (Mar. 22, 2002); Enercon GmbH v. Int ’l Trade Comm 'n, 151 F.3d 1376
(Fed. Cir. 1998).
Literal infringement of a claim occurs when every limitation recited in the claim appears '
in the accused device, i.e., when the properly construed claim reads on the accused device
exactly.5 Amhil Enters, ‘Ltd.v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed. Cir. 1996); Southwall
Tech. v. Cardinal IG C0., 54 F.3d 1570, 1575 (Fed Cir. 1995).
A If the accused product does not literally infringe the patent claim, infringement might be
found under the doctrine of equivalents. “Under this doctrine, a product or process that does not
literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if
there is ‘equivalence’ between the elements of the accused product or process and the claimed
elements of the patented invention.” Warner-Jenkinson Ca, Inc. v. Hilton Davis Chemical C0.,
520 U.S. 17, 21 (1997) (citing Graver Tank & Mfg. C0. v. Linde Air Products C0., 339 U.S. 605,
609 (1950)). “The determination of equivalence should be applied as an objective inquiry on an
element-by-element basis.”6 Id. at 40.
5 Each patent claim element or limitation is considered material and essential. London v. Carson
Pirie Scott & C0., 946 F.2d 1534, 1538 (Fed. Cir. 1991). If an accused device lacks a limitation"
of an independent claim, the device cannot infringe a dependent claim. See Wahpeton Canvas
C0. v. Frontier, Inc, 870 F.2d 1546, 1552 n.9 (Fed. Cir. 1989).
6 “Infringement, whether literal or under the doctrine of equivalents, is a question of fact.”
Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1130 (Fed. Cir. 2011).
l4
PUBLIC VERSION
1). Validity 	V
A patent is presumed valid, and overcoming that presumption requires clear and
convincing evidence. 35 U.S.C. § 282; Microsofi Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238,
2242 (2011).
E. Domestic Industry
In patent-based proceedings under section 337, a complainant bears the burden of
establishing that an industry “relating to the articles protected by the patent . . . exists or is in the
process of being established” in the United States. 19 U.S.C. § 1337(a)(2); see also Certain
Network Controllers and Products Containing Same, Inv. No. 337-TA-531, Order No. 13 at 3-4
(July 6, 2005). Under Commission precedent, this requirement of section 337 is known as the
“domestic industry requirement” and consists of a “technical prong” and an “economic prong.”
The technical prong requires that the complainant practice the patents-in-suit in the
United States. Crocs, Inc. v. 1nt’l Trade Comm ’n, 598 F.3d 1294, 1306-07 (Fed. Cir. 2010). The
test for determining whether the technical prong is met through the practice of the patent “is
essentially same as that for infringement, i.e., a comparison of domestic products to the asserted
claims.” Alloc, Inc. v. Int ’l Trade Comm ’n, 342 F.3d 1361, 1375 (Fed. Cir. 2003).
The economic prong requires that the complainant have, with respect to the products
protected by patent: (a) significant investment in plant and equipment; (b) significant
employment of labor or capital; or (c) substantial investment in exploitation of the patent(s),
including engineering, research and development, or licensing activities. '19U.S.C. § 1337(a)(3).
15
PUBLIC VERSION
IV. VALIDITY '
The Asserted Patents are presumed valid as a matter of law. 35 U.S.C. § 282. This
presumption of validity may be overcome only by “clear and convincing evidence.” Pfizer, Inc.
v. Apotex, 1nc., 480 F.3d 1348, 1359 (Fed. Cir. 2007).
In support of the pending motion for summary determination, Varidesk argues: '
The Non-Participating Respondents never articulated any invalidity
defenses or arguments in response to Complainanfs claims of
infringement of the Asserted Patents, resulting in waiver of any such
defense. See 19 C.F.R. §§ 210.l6(b)(4) and 210.17. . ..
Since the Non-Participating Respondents never provided an
invalidity defense, there is no present dispute or genuine issue of
material fact as to the validity or enforceability of the Asserted
Patents. See Lannom Mfg. C0., Inc. v. International Trade Comm ’n,
799 F.2d 1572, 1580 (Fed. Cir. 1986) (Commission did not have
authority to re-determine patent validity when no defense of
invalidity had been raised). Therefore, the Asserted Patents should
be found valid on summary determination. 	~
Mem. at l7, 18.
The Staff “presumes-—and does not challenge—the validity of the Asserted Patents. . . .
The Non-Participating Respondents have not provided any invalidity arguments and so there is
no issue of disputed material fact relating to the validity of Varidesk’s Asserted Patents.” Staff
Resp. at 36. 	‘ 	< 	- I
Inasmuch as none of the Non~Participating Respondents has challenged the validity or
enforceability of any of the Asserted Patents, it is determined that there is no issue of material
fact as to the validity or enforceability of the Asserted Patents.
V. VIOLATIONS OF SECTION 337
Varidesk has provided evidence showing that the Non-Participating Respondents, with
the exception of Haining Orizeal, have violated section 337. The exhibits accompanying the
pending motion show sale for importation, importation, and/or sale after importation into the
l6
\
. PUBLIC VERSION
United States"of the Accused Products by the Non-Participating Respondents. See Mem. at
18-20; Mot. Exs. 10-50, 52.
An affidavit accompanying the pending motion compares the Accused Products to the
asserted claims of the Asserted Patents. See Mem. at 25-29; Babcock Aff. Other affidavits
accompanying the pending motion set forth the domestic investments made by Varidesk, along
with allocations of those investments to products that practice the Assened Patents. See Mem. at
29-32; Storey Aff.; Patton Aff. Furthermore, Varidesk has provided an affidavit from an expert
witness stating that Varidesk’s investments are quantitatively and qualitatively significant to the
domestic industry analysis. See Mem. at 29-32; Seth Aff. An affidavit comparing the claims of
the Asserted Patents with Varidesk’s domestic industry products was also filed with the pending
motion. See Mem. at 29-32; Babcock Aff.
Such evidence leaves no genuine issue of material fact regarding the Non-Participating
Respondents’ importation, sale for importation, and/or sale after importation of infringing
Accused Products, thereby making summary determination appropriate as a matter of law.
See 19 C.F.R. §§ 210.l8(b) and 2lO.16(c)(2).
A. Importation
Varidesk submitted exhibits showing importation of an Accused Product from each of the
Non-Participating Respondents with the exception of Haining Orizeal. 	'
1. Albeit
i Varidesk submitted exhibits and affidavits showing that Albeit imports and/or sells
within the United States after importation height-adjustable desk platforms under the brandname
“HeroDesk.” This evidence includes evidence that Wuhu Xingdian makes height-adjustable
desk platforms it refers to as “workstations.” -Mot. Ex. 14.
i 	1 7
PUBLIC VERSION
Importation records submitted by Varidesk show that a container of “[w]orkstation[s]”
was shipped from Wuhu Xingdian in China to Albeit in the United States. Mot. Ex. 10; Mot. Ex.
12 at 23. Representatives of Varidesk then purchased two HeroDesks from Albeit following
issuance of all the Asserted Patents. See Mem. at 19; Mot Ex. 12; McIntyre Aff. W 15-16.
Although there is no direct evidence that the HeroDesks purchased by Varidesk were
imported from China, such as markings showing the country of origin on the packaging or
product, there is substantial circumstantial evidence that the HeroDesks were made in China,
imported into the United States, and then sold by Albeit.
‘ It is therefore determined that Varidesk has established that the importation requirement
of section 337 has been satisfied with respect to Albeit. .
2. ATC Supply and Shenzhen ATC
Varidesk submitted exhibits showing that ATC Supply and Shenzhen ATC import and/or
sell within the United States height-adjustable desk platforms under the brand name “ANNT
Lumsing.” Mem. at 19; Mclntyre Aff. 111117-18.Varidesk also provided evidence that the two
companies are a common enterprise. The Accused Product is called “ANNT Lumsing,” the
trademark for ANNT is held by ATC Supply, and the trademark “Lumsing” is held by Shenzhen
ATC. Mot. Ex. 17 (ANNT trademark); Mot. Ex. 18 (Lmnsing trademark); McIntyre Aff. 1117.
Representatives of Varidesk purchased two ANNT Lumsing Standing Desks that were
delivered in the United States. Mot. Ex. 20. The shipping container states that the desks were'
made in China: Id. at 8-9. 	V
It is therefore determined that Varidesk has established that the importation requirement
of section 337 has been satisfied with respect to ATC.Supply and Shenzhen ATC.
18
PUBLIC VERSION
3. Amazon Import 	.
Varidesk provided evidence that Amazon Import imports and/or sells within the United
States after importation height-adjustable desks under the brand name “Fezibo.” Mem. at 19;
McIntyre Aff. 111119-20.
The evidence includes importation records showing shipment of desks marked
“FEZIBO” from Ningbo, China to Amazon Import in the United States. Mot. Ex. 22; McIntyre
Aff. 1119. Representatives of Varidesk ordered two Fezibo Standing Desk Converters and two
Fezibo Height Adjustable Standing Desks. Mem. at 19. The desk packaging for both models
states that they were “Made in China.” Mot. Ex. 23 at 10; Mot. Ex. 24 at 11.
It is therefore determined that Varidesk has established that the importation requirement
of section 337 has been satisfied with respect to Amazon Import.
4. Ningbo GYL 	p _
Representatives of Varidesk ordered two Halter ED-258 desks from participating
respondent Dakota. Mem. at 19; Ex. 52. Dakota holds the trademark on “Halter” for, among
other goods, office desks and computer furniture. See Complaint Ex. 15E.3. The evidence
shows that Ningbo GYL offers for sale a height-adjustable desk with model number ED-258.
Mot. Ex. 30. -Theevidence further shows that Ningbo GYL shipped to Dakota goods described
as “Elevating Desktop.” Mot. Ex. 31. The desks received by Varidesk are labeled “Halter
Elevating Desktop.” Mot. Ex. 52.
It is therefore determined that Varidesk has established that the importation requirement
of section 337 has been satisfied with respect to Ningbo GYL.
19'
PUBLIC VERSION
5. JV Products, Vanson Distributing, and Vanson Group
Varidesk provided evidence that JV Products, Vanson Distributing, and Vanson Group
are related companies under common ownership. Mem. at 20; McIntyre Aff. 1]22. Not only do
the three companies share an address, Van Bui is listed as CEO, Secretary, and CFO for Vanson
Distributing and Vanson Group and as CFO of JV Products. Mot. Ex. 37 (Vanson_Distributing);
Mot. Ex. 40 (Vanson Group); Mot. Ex. 34 (JV Products); McIntyre Aff. it 22.
Varidesk also presented evidence that the companies sell a height-adjustable desk under
the name “Logix.” For example, the Logix website states: “Logix Desk is a product of Logix
Gear, a JV Products Inc. company.”7 Mot. Ex. 42 at 6/6. The amazon.com page for the Logix
Desk states it is sold by Vanson Group. Mot. Ex. 44 at 4/9. The evidence shows that the Logix
Desks are made in China. For example, shipping records show that Wuhu Xingdian shipped a
container with “Sit stand computer desk” to Vanson Distributing. Mot. Ex. 45. A Groupon page
also states that the Logix desks are made in China. Mot. Ex. 44. A representative of Varidesk
ordered two Logix desks that were delivered to Washington, DC. Mem. at 20; McIntyre Aff.
1]22; Mot. Ex. 46. ‘
It is therefore detennined that Varidesk has established that the importation requirement
of section 337 has been satisfied with respect to JV Products, Vanson Distributing, and Vanson
Group.
6. _Haining Orizeal
The evidence submitted by Varidesk includes affidavits and exhibits showing that
Haining Orizeal makes height-adj ustable desks, and that desks marketed under the “ANNT
7The “Logix” trademark is owned by Vanson Group, further establishing that the companies are
related. See Mot. Ex. 43.
20
PUBLIC VERSION
Lumsing” and “Fezibo” brand names are imported into the United States. See, e.g.‘,McIntyre i
Aff. fll24; Patton Aff. W 21-22; Mot. Exs. 17-24. The evidence fails to show, however, that the
Haining Orizeal desks are the same desks that are imported under those trade names. The
shipping information for the ANNT Lumsing and Fezibo desks does not list Haining Orizeal as
the shipper. Instead, logistics companies are listed as the shipper. See Mot. Exs. 19 and 22.
It is therefore determined that Varidesk has not established that the importation
requirement of section 337 has been satisfied with respect to Haining Orizeal.
7. Smugdesk 	,
Varidesk provided evidence that Smugdesk imports and/or sells after importation height
adjustable desks. In particular, representatives of Varidesk ordered two Smugdesk Standing
Desk Converters. Mem. at 20; McIntyre Aff. 1]25. When the desks arrived in Washington, DC,
the box said Made in China. McIntyre Aff. 1]25; Mot. Ex. 50.
It is therefore determined that Varidesk has established that the importation requirement
of section 337 has been satisfied with respect to Smugdesk. 	7
B. Infringement
As discussed fiirther below, Varidesk has submitted evidence showing that the
Non-Participating Respondents each infringe the asserted claims of the Asserted Patents.
7
Mr. James B. Babcock, Varidesk s technical expert, evaluated each of the Accused Products at
issues and submitted an affidavit in support of the pending motion.
The Non-Participating Respondents have not articulated any noninfringement defenses or
arguments in response to Varidesk’s claims of infringement of the Asserted Patents, resulting in
8Mr. Babcock’s infringement analysis was performed pursuant to the claim constructions
adopted by the undersigned in Order No. 27. See Mem. at 24.
4 	21
PUBLIC VERSION
waiver of any such defense. See 19 C.F.R. §§ 2lO.16(b)(4) and 210.17. As a result, no issues of
material fact remain with respect to infringement of the Asserted Patents by the
Non-Participating Respondents.
1. The ’703 Patent 	~
Varidesk accuses the following Accused Products and Non-Participating Respondents of
infringing the ’703 patent:
Product 	Respondent(s) 	Claims
Halter ED-258 	Ningbo GYL 	1, 2, 4, 10, 11
Fezibo Standing Desk 	Amazon Import 	l, 2, 4, 10, ll
Converter 	Haining Orizeal
Logix Desk Stand Up Desk JV Products 	l, 2, 4, 10, ll
Vanson Distributing‘
Vanson Group
Wuhu Xingdian .
Babcock Aff. 1l1l25, 36-37; Babcock Exs. G, P, V. 	7
Mr. Babcock provided a limitation-by-limitation analysis comparing each of the Accused
Products to each of the asserted claims. Mr. Babcock attached exhibits to his affidavit for each
of the Accused Products.
The claim chart attached to Mr. Babcock’s affidavit as Exhibit G demonstrates that the
Accused Products sold for importation by Ningbo GYL literally meet each limitation of and
infringe claims 1, 2, 4, 10, and 11 of the ’703 patent. See also Babcock Aff. 1]36.
- 	/
The claim chart attached to Mr. Babcock’s Affidavit as Exhibit P demonstrates that the
Fezibo Standing Desk Converter imported, sold for importation, or sold after importation by
22
PUBLIC VERSION
Amazon lmport9 literally infringes claims l, 2, 4, l0, and 11 of the ’703 patent. See also
Babcock Aff. 1i37. 	i .
The claim chart attached to Mr. Babcock’s Affidavit as Exhibit V demonstrates that the
Logix Desk Stand Up Desk imported, sold for importation, or sold after importation by JV
Products, Vanson Distributing, Vanson Group, and Wuhu Xingdian literally infringes claims 1,
2, 4, 10, and ll of the ’703 patent. See also Babcock Aff. 1]37. 	'
It is therefore determined that'Varidesk has established that the Accused Products listed
in the chart above infringe claims l, 2, 4, 10, and 11 of the ’703 patent.
. 2. ' The ’809 Patent _ A
Varidesk accuses the following Accused Products and Non-Participating Respondents of
infringing the ’809 patent:
Product" 	Respondent(s) 	Claims
Halter ED-258 _ Ningbo GYL 	22-26 A
HeroDesk 	Albeit 	1l, 16, 18
Wuhu Xingdian
Fezibo Standing Desk 	Amazon Import 	22-26
Convener l 	Haining Orizeal '
Logix Desk Stand Up Desk JV Products 	22-26
Vanson Distributing
Vanson Group
Wuhu Xingdian
9 Varidesk alleges that the Fezibo Standing Desk Converter is imported, sold for importation, or
sold after importation by Haining Orizeal. See Babcock Aff. 1]37. However, as discussed above
in the section addressing importation, it has not been established that Haining Orizeal imports or
sells for importation any Accused Product. 	A
23 	'
PUBLIC VERSION
Product 	Responder1t(s) 	Claims '
Smugdesk Standing Desk Smugdesk 	11', 16, 18
Babcock Aff. 111125, 36-37; Babcock Exs. H, K, Q, W, Z. p . \
Mr. Babcock provided a limitation-by-limitation analysis comparing each of the Accused
Products to each of the asserted claims. Mr. Babcock attached exhibits to his affidavit for each
of the Accused Products. 	Y
The claim chart provided as Exhibit H to the Babcock Affidavit demonstrates how the
Accused Products sold for importation by Ningbo GYL literally meet each limitation of and
infringe claims 22-26 of the ’809 patent. See also Babcock Aff. {I36.
The claim chart provided as Exhibit K to the Babcock Affidavit demonstrateshow the
HeroDesk imported, sold for importation, or sold afier importation by Albeit and Wuhu
Xingdian literally infringes claims ll, 16, and 18 of the ’809 patent. .§'eealso Babcock Aff. 1|37.
The claim chart provided as Exhibit Q to the Babcock Affidavit demonstrates how the
Fezibo Standing Desk Converter imported, sold for importation, or sold after importation by
Amazon Irnportm literally infringes claims 22-26 of the ’809 patent. See also Babcock Aff. 1]37.
The claim chart provided as Exhibit W to the Babcock Affidavit demonstrates how the
Logix Desk Stand Up Desk imported, sold for importation, or sold after importation by _JV
Products, Vanson Distributing, Vanson Group, and Wuhu Xingdian literally infringes claims
22-26 of the ’809 patent. See also Babcock Aff. 1I37.
'0 Varidesk alleges that the Fezibo Standing Desk Converter is imported, sold for importation, or
sold after importation by Haining Orizeal. See Babcock Affi 1]37. However, as discussed above
in the section addressing importation, it has not been established that Haining Orizeal imports or
sells for importation any Accused Product.
24
PUBLIC VERSION
The claim chart provided as Exhibit Z to the Babcock Affidavit demonstrates how the
Smugdesk Standing Desk Converter imported, sold for importation, or sold afier importation by
Smugdesk literally infringes claims 11, 16, and 18 of the ’809 patent. See also Babcock Aff.
1137.
It is therefore determined that Varidesk has established that the Accused Products listed
in the chart above infringe the asserted claims of the ’809 patent.
3. The ’644 Patent
Varidesk accuses the following Accused Products and Non-Participating Respondents of
infringing the ’644 patent:
Product 	Respondent(s) _ 	Claims
Halter ED-258 	Ningbo GYL 	1, 4, 5,12, 33-36
HeroDesk 	Albeit
Wuhu Xingdian
1, 4, 33-36
ANNT Lumsing Standing
Desk ATC Supply
Shenzhen ATC
Haining Orizeal
33-36
Fezibo Standing Desk
Converter
Amazon Import
Haining Orizeal
1, 4, 5, 11, 12, 26, 33-36
Fezibo Height Adjustable
Standing Desk
Amazon Import
Haining Orizeal
33-36
Logix Desk Stand Up Desk JV Products
Vanson Distributing
Vanson Group
Wuhu Xingdian
1, 4, 5,l1,12, 26, 33-36
\
Smugdesk Standing Desk Smugdesk 	1, 4,11,12, 26, 33-36
25
PUBLIC VERSION
Babcock Aff. 1111	25, 36-37; Babcock Exs. I, L, N, R, T, X, ZA.
Mr. Babcock provided a limitation-by-limitation analysis comparing each of the Accused
Products to each of the asserted claims. Mr. Babcock attached exhibits to his affidavit for each l
of the Accused Products.
The claim chart provided as Exhibit I to the Babcock Affidavit demonstrates how the
Accused Products sold for importation by Ningbo GYL literally meet each limitation and
infringe claims l, 4, 5, 12, and 33-36 of the ‘644 patent. See also Babcock Aff. 1]36.
The claim chart provided as Exhibit L to the Babcock Affidavit demonstrates how the
HeroDesk imported, sold for importation, or sold after importation by Albeit and Wuhu i
Xingdian literally i_nfringesclaims 1, 4, and 33-36 of the ’644 patent. See also Babcock Aff.
1[ 37.
The claim chart provided as Exhibit N to the Babcock Affidavit demonstrates how the
ANNT Lumsing Standing Desk imported, sold for importation, or sold after importation by ATC
Supply and Shenzhen ATC“ literally infringes claims 33-36 of the ’644 patent. See also
Babcock Aff. 1137. ~
The claim charts provided as Exhibits R and T to the Babcock Affidavit demonstrate how
the Fezibo Standing Desk Converter and Fezibo Height Adjustable Standing Desk imported, sold
for importation, or sold after importation by Amazon Import” literally infringe claims l, 4, 5, ll,
12, 26, and 33-36_0f the ’644 patent. See also Babcock Aff. 1i37.
" Varidesk alleges that the ANNT Lumsing Standing Desk is imported, sold for importation, or
sold after importation by Haining Orizeal. See Babcock Aff. 1]37. However, as discussed above
in the section addressing importation, it has not been established that Haining Orizeal imports or
sells for importation any Accused Product. 	_
12Varidesk alleges that the Fezibo Standing Desk Converter and Fezibo Height Adjustable ‘
Standing Desk are imported, sold for importation, or sold after importation by Haining Orizeal.
26
PUBLIC VERSION
The claim chart provided as Exhibit X to the Babcock Affidavit demonstrates how the
Logix Desk Stand Up Desk imported, sold for importation, or sold afier importation by JV
,Products, Vanson Distributing, Vanson Group, and Wuhu Xingdian literally infringes claims 1,
4, 5, ll, 12, 26, and 33-36 of the ’644 patent. See also Babcock Aff. 1]37.
The claim chart provided as Exhibit ZA to the Babcock Affidavit demonstrates how the
Smugdesk Standing Desk Converter imported, sold for importation, or sold afler importation by
Smugdesk literally infringes claims 1, 4, ll, 12, 26, and 33-36 of the "644 patent. See also
Babcock Aff. 1]37.
It is therefore detennined that Varidesk has established that the Accused Products listed
in the chart above infringe the asserted claims of the ’644 patent.
4. The ’793 Patent
Vaiidesk accuses the following Accused Products and Non-Participating Respondents of
_ 	\
infringing the ’793 patent;
Product 	Respondent(s) 	Claims
Halter ED-258 	Ningbo GYL 	20, 21, 45-50
HeroDesk 	Albeit l
Wuhu Xingdian
20, 21, 40-44, 45-47,
49-50 '
ANNT Lumsing Standing ATC Supply
Desk T 	Shenzhen ATC
Haining Orizeal
40,41,44, 45 0
Fezibo Standing Desk
Converter Amazon Import
Haining Orizeal
20, 40-44, 45-47, 49, 50
See Babcock Aff. 1]37. However, as discussed above in the section addressing importation, it
has not been established that Haining Orizeal imports or sells for importation any Accused
Product. 	"
27
PUBLIC VERSION
Product 	Resp0ndent(s) 	Claims
Fezibo Height Adjustable
Standing Desk
Amazon Import
Haining Orizeal
40-44, 45-47, 49, 50
Logix Desk Stand Up Desk JV Products
Vanson Distributing
Vanson Group
Wuhu Xingdian
20, 21, 40-44, 45-47,
49-50
Smugdesk Standing Desk Smugdesk 	20, 40-50
Babcock Aff. 11125,36-37; Babcock Exs. J, M, O, S, U, Y ,Z.
Mr. Babcock provided a limitation-by-limitation analysis comparing each of the Accused
Products to each of the asserted claims. Mr. Babcock attached exhibits to his affidavit for each
of the Accused Products.
The claim chart provided as Exhibit] to the Babcock Affidavit demonstrates how the
Accused Products sold for importation by Ningbo GYL literally meet each limitation of and
infringe claims 20, 21, and 45-50 of the ’793 patent. See also Babcock Aff. 1]36.
The claim chart provided as Exhibit M to the Babcock Affidavit demonstrates how the
HeroDesk imported, sold for importation, or sold afier importation by Albeit and Wuhu
Xingdian literally infringes claims 20, 21, 40-44, 45-47, 49, and 50 of the ’793 patent. See also
Babcock Aff. 1I37.
The claim chart provided as Exhibit O demonstrates how the ANNT Lumsing Standing
Desk imported, sold for importation, or sold after importation by ATC Supply and Shenzhen-.
28
l
PUBLIC VERSION
ATCB literally infringes claims 40, 41, 44, and 45 of the ‘793 patent. See also Babcock Aff.
1[ 37. 	'
The claim charts provided as Exhibits S and U to the Babcock Affidavit demonstrate how
the Fezibo Standing Desk Converter and Fezibo Height Adjustable Desk imported, sold for
importation, or sold after importation by Amazon Import“ literally infringe claims 20, 40-44,
45-47, 49, and 50 of the ’793 patent. See also Babcock Aff. 1]37.
- The claim chart provided as Exhibit Y to the Babcock Affidavit demonstrates how the
Logix Desk Stand Up Desk imported, sold for importation, or sold after importation by JV
Products, Vanson Distributing, Vanson Group, and Wuhu Xingdian literally infringes claims 20,
21, 40-44, 45-47, 49, and 50 of the ’793 patent. See also Babcock Aff. 1]37.
The claim chart provided as Exhibit ZB demonstrates how the Smugdesk Standing Desk
Converter imported, sold for importation, or sold after importation by Smugdesk, LLC literally
infringes claims 20 and 40-50 of the ’793 patent. See also Babcock Aff. 1137.
It is therefore determined that Varidesk has established that the Accused Products listed
in the chart above infringe the asserted claims of the ’793 patent.
'3 Varidesk alleges that the ANNT Lumsing Standing Desk is imported, sold for importation, or
sold after importation by Haining Orizeal. See Babcock Aff. 1137. However, as discussed above
in the section addressing importation, it has not been established that Haining Orizeal imports or
sells for importation any Accused Product.
14Varidesk alleges that the Fezibo Standing Desk Converter is imported, sold for importation, or
sold after importation by Haining Orizeal. See Babcock Aff. 1]37. However, as discussed above
in the section addressing importation, it has not been established that Haining _Orizealimports or
sells for importation any Accused Product. 	»
29
PUBLIC VERSION
VI. TECHNICAL PRONG OF THE DOMESTIC INDUSTRY REQUIREMENT
As discussed below, Varidesk has established that its products satisfy the technical prong
of the domestic industry requirement.
Varidesk has identified the following products as practicing the Asserted Patents
(collectively, “Domestic Industry Products”):
0 VersaDesk Pro,
0 Varidesk Pro 3OTM,
0 Pro 36"",
0 Pro 48TM,
0 Pro Plus 3OTM,
0 Pro Plus 36TM,
0 Pro Plus 48TM,
¢ Exec 40"",
0 Exec 48T“,
0 Cube Corner 36”‘,
0 Cube Corner 48TM,
0 Cube Plus 40“,
0 Cube Plus 48'TM,and
0 Laptop 301'“.
Patton Aff. fl 5; Storey Aff 1]5; Babcock Aff. {[8.
In support of its technical prong contentions, Varidesk submitted the affidavit and
affidavit exhibits of James Babcock, who compared a Varidesk Domestic Industry Product to a
30
I PUBLIC VERSION
claim of each of the Asserted Patents. Babcock Aff. 1]33; Babcock Exs. C-F. In particular,
Mr. Babcock analyzed the Varidesk Pro Plus 36, which he states is representative of all
Domestic Industry Products. Babcock Aff. 1]33; Patton Aff. 1]5 (“Each Domestic Industry
Product has the same or similar base, linkage, locking, and work surface features”).
.These undisputed affidavits and exhibits support the finding that Varidesk’s Domestic
Industry Products practice at least one claim of each of the Asserted Patents. ' ' I
Vll. ECONOMIC PRONG OF THE DOMESTIC INDUSTRY REQUIREMENT
As discussed below, Varidesk has proffered evidence showing that Varidesk satisfies the
economic prong of the domestic industry requirement under sections 337(a)(3)(A) and (B). In
particular, there is no dispute as to any material fact that Varidesk satisfies the economic prong
with respect to each of the Asserted Patents. 	V
In support of its economic prong argmnent, Varidesk submitted affidavits from David
Patton, Director of Design at Varidesk; Craig Storey, CFO of Varidesk; and Dr. Pallavi Seth,
Varidesk’s expert witness who provides her opinion that Varidesk satisfies the economic prong
withinvestmentsof I 	fromJuly 1,2014,throughMay31,2018. SeeMem.at 31;
Patton Aff. 1]3; Storey Aff. 1]3; Seth Aff. 1]1]1-1 1, 1]59, Table 6. These investments are for plant
and equipment and labor and capital relating to research and development (“R&D”), design,
engineering and warranty and repair of the Domestic Industry Products. See Storey Aff.
1]1]10-12; Seth Aff. 1]1]32-33. Varidesk conducts all of its research and development, design and
engineering in Texas. Storey Aff. 1]1]8-9; Patton Aff. 1]13; Seth Aff. 1]17. '
The evidence /shows that Varidesk is a privately held corporation headquartered in
Coppell, Texas. Patton Aff. 1]1]5, 9; Seth Aff. 1]12. Varidesk designs, engineers, distributes, and
sells height-adjustable (or “standing”) workplace desks and office accessories (such as floor
3 1
PUBLIC VERSION
mats designed to prevent fatigue when standing). Patton Aff. 1111	5, 9; Seth Aff. 1]12. Varidesk
was incorporated on June 18, 2014 and spun off from Gemmy Industries Corp. (“Gemmy
Industries”) in July 1, 2014. Patton Aff. 117; Seth Aff. 1113. Before the spin-off, Gemmy ‘
Industries was engaged in substantially the same domestic activities as Varidesk with respect to
height-adjustable desks. Patton Aff. 117.
Varidesk has proffered evidence showing that, from July 1, 2014 through May 31, 2018,
Varideskinvestedapproximately- 	in rentpaymentsfor itsprimaryfacilitiesusedfor
research,development,design,andengineering,of which- 	is attributableto workon the
Domestic Industry Products. Storey Aff. 1111	8-9; Patton Aff. 1]13; Seth Aff. 1]40-43. Between
July 1, 2016and May.31,2018,Varideskinvested- 	in utilityexpensesattributableto the
Domestic Industry Products. Storey Aff. 1[10; Seth Aff. 1]44. From July 2014 through May
2018,Varideskinvested- 	in equipmentexpensesfor R&D,engineering,and relatedwork
supporting the Domestic Industry Products. Storey Aff. 1110; Seth Aff. 1145. Between May
2015andMay31-,2018,Varidesk	invested	— 	inlabor,- 	ofwhichis
attributable to research, development, design, and engineering of the Domestic Industry
Products. Storey Aff. 1]11; Seth Aff. 1111	47-49. Between July 1, 2014 and May 31, 2018,
Varideskalso invested- 	in outsideR&Dconsultationservicesrelatedto the Domestic
Industry Products. Seth Aff. 1150.
The evidence shows that these investments are both quantitatively and qualitatively
significant.Specifically,Varideskhasspentapproximately— 	onR&Dand
engineering-related expenses, which is quantitatively significant. See Seth Aff. at 1[59, Table 6.
All of the investments in R&D for the Domestic Industry Products occurred in the United States.
Seth Aff. at 1]55. These investments amount to about 2 of Varidesk’s R&D expenditures for
.32 	.
PUBLIC VERSION
2017, and nearly- of total R&D employeetime was spent on the Domestic Industry Products
between May 2015 and May 2018. Id. Sales of the Domestic Industry Products account for
about- of domesticsales. Thesedomesticsalesaccountfor about of worldwidesalesof
Domestic Industry Products. Id. at 1154. Furthennore, the investments have enabled Varidesk to
makeapproximately— 	in U.S.DomesticIndustryProductsalesbetweenJuly2014
and May 2018. Id. at 1]56. 	p
Accordingly, it is detennined that the record evidence establishes that Varidesk satisfies
the economic prong of the domestic industry requirement under sections 337(a)(3)(A) and (B).
V111.‘ CONCLUSIONS or LAW 	_
1. The Commission has subject matter, personal, and in rem jurisdiction in this
investigation.
2. It has not been shown by clear and convincing evidence that any asserted claim of
any asserted patent is invalid.
3. The Accused Products have been imported into the United States.
4. The importation requirement of section 337 has been satisfied with respect to
respondents Albeit, ATC Supply, Shenzhen ATC, Amazon Import, Ningbo GYL, JV Products,
Vanson Distributing, Vanson Group, and Smugdesk. 	_
5. The importation requirement of section 337 has not been satisfied with respect to
respondent Haining Orizeal.
6. The Accused Products infringe all asserted claims of the Asserted Patents.
7. The domestic industry requirement is satisfied as to all Asserted Patents.
33
PUBLIC VERSION
IX. INITIAL DETERMINATION 	~
It is therefore the initial determination of the undersigned that a violation of section 337
(19 U.S.C. § 1337) has occurred in the importation into the United States, the sale for
importation, or the sale within the United States after importation of certain height-adjustable
desk platforms and components thereof with respect to asserted claims 1, 2, 4, 10, and 11 of the
’703 patent; asserted claims 11, 16, 18, and 22-26 ofthe ’809 patent; claims 1, 4, 5, 11, 12, 26,
and 33-36 of the ’644 patent; and claims 20, 21, 40-44, and 45-50 of the ’793 patent.
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
§ 210.43(a) or the Commission, pursuant to § 210.44, orders on its own motion a review of the
initial determination or certain issues herein.
-All issues delegated to the administrative law judge pursuant to the notice of
investigation have been decided, with dispositions as to all respondents. Accordingly, this
investigation is concluded in its entirety.
X. RECOMMENDED DETERMINATION ON REMEDY AND BONDING
Pursuant to the notice of investigation, 83 Fed. Reg. 36621 (July 20, 2018), this is the
recommended determination in Certain Height-Adjustable Desk Platforms and Components
Thereof: United States Intemational Trade Commission Investigation No. 337-TA-1125.
Varidesk has requested that, along with a finding of violation, a reconnnended remedy in
the form of a general exclusion order (“GEO”) and cease and desist orders (“CDO”) against each
of the Non-Participating Respondents, with a bond in the amount of 100% during the .
Presidential review period. Mem. at 32-33. The Staff supports Varidesk’s request as to the GEO
and bond, but does not support Varidesk’s request for CDOs. Staff Resp. at 84.
' 	34
PUBLIC VERSION
A. General Exclusion Order
A GEO is warranted when “a general exclusion from entry of articles is necessary to
prevent circumvention of an exclusion order limitedto products of named persons” or “there is a
pattern of violation of this section and it is difficult to identify the source of infringing products.”
19 U.S.C. § 1337(d)(2)(A); 19 U.S.C. § 1337(d)(2)(B). Satisfaction of either criterion is
sufficient for imposition of a GEO. Certain Cigarettes and Packaging Thereofi Inv. No.
337-TA-643, Comm’n Op. at 24 (Oct. 1, 2009) (“Certain Cigarettes”). The Commission “now .
focus[es] principally on the statutory language itself” when detennining whether a GEO is _
warranted. Certain Ground Fault Circuit Interrupters and Products Containing Same, Inv. No.
337-TA-615, Comm’n Op. at 25 (Mar. 27, 2009). The Commission may look not only to the
1
activities of active respondents, but also to those of non-respondents as well as respondents who
have defaulted.or been terminated from an investigation. See, e.g., Certain Electronic Paper
Towel Dispensing Devices and Components Thereofl Inv. No. 337-TA-718, Recommended
Determination at 7-8 & n.9-10 (July 12, 2011); Certain Coaxial Cable Connectors and
Components Thereof and Products Containing Same, Inv. No. 337-TA-650, Comm’n Op. at 59
~
(April 14, 2010). 	t
1. Circumvention of Limited Exclusion Orders
_ In prior cases, the Commission has considered a number of factors and market conditions
in determining the likelihood of circumvention of a limited exclusion order (“LEO”). In Toner
Cartridges, for example, the Commission found circumvention of an LEO likely because of the
use of “various practices including . . . (i) replication of operations; (ii) sourcing imported
accused products from domestic suppliers outside the reach of an LEO; (iii) facilitating
circumvention through Internet operations; (iv) masking of identities and product sources; and
35
“PUBLIC VERSION
(v) use of unmarked, generic, and/or reseller-branded packaging.” Certain Toner Cartridges and
Components Thereofl Inv. No. 337-TA-918, Comm’n Op. at 9 (Oct. 1, 2015) (“Toner
Cartridges”). These factors are also present in this investigation. 	p
The evidence adduced by Varidesk establishes that a GEO is necessary to prevent
circumvention of an order limited to the products of named respondents. In particular, some of
the,-Non-ParticipatingRespondents obscure the sources of the Accused Products. For example,
Varidesk presented evidence of manufacturers who use the same image of a height-adjustable
desk to sell products by different manufacturers. See Mot. Exs. 107-108.
There is also evidence that internet-based sellers of height-adjustable desk platforms hide
' 	1
the source of infringing products by providing little or no physical contact information. Mot.
Exs. 105-106. Many sellers also do not indicate the origin of their products on the shipping
boxes, making it difficult to determine the source of the goods. Mot. Ex. 46. In addition, some
sellers “hijack” other webpages to sell their products. For example, Varidesk provided a printout
from an amazon.com page for the Varidesk 49900 desk. Mot. Ex. 104. On that page there is a
link stating “[t]here is a newer model of this item,” but the link is to a desk made by another
company. Id. (highlighted portion).
V There is also evidence that companies sell the same products under different product
names, through different sellers, and provide no information on the origin of the product.
Exhibits to the pending motion show what appear to be the same desk sold under a number of
names with no infonnation about the origin of the desks. Mem. at 38; Mot. Exs. 25, 110-113.
This evidence establishes that a GEO is be necessary to prevent circumvention of a
limited exclusion order issued against only the named respondents.
36
PUBLIC VERSION 	»
2. Pattern of Importation and Identification of the Source of Infringing
Goods 	'
This is the fourth investigation to focus on Varidesk’s height-adjustable desks. In this
investigation, thirty-one respondents were named. See Complaint. The previous investigations
named an additional thirteen respondents. See Inv. No. 337-TA-970 Complaint (EDIS Doc. ID
566554); Inv. No. 337-TA-992 Complaint (EDIS Doc. ID 576595); Inv. No. 337-TA-1054
Complaint (EDIS Doc. ID 607089). The Commission has considered past investigations when
evaluating a pattem of violation. See Certain Inlqet Ink Supplies, Inv. No. 337-TA-691,
Con‘rm’nOp. at 12 (Jan. 28, 2011) (“[w]ith respect to ‘pattern of violation,’ this is not the first
section 337 investigation relating to ink cartridges”). p
In total, Varidesk has already identified forty-four respondents as allegedly violating
section 337 by infringing Varidesk’s height-adjustable desk patents. This evidence of ,
importation by respondents‘also supports a finding that there is a pattem of violation. See
Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same,
Inv. No. 337-TA-650, Comm’n Op. at 58 (Mar. 31, 2010).
I As discussed above, most of these sales are over the intemet, making it difficult to
identify the source of the desks. Manufacturers market and sell products under a number of
different names with little or no indication of their origin. See Mot. Exs. 25, 105-106, 110-113.
The ease of selling under multiple names and models supports a finding that there is a pattem of
violation. See Certain Cases for Portable Electronic Devices, Inv. No. 337-TA-867/861,
Comm’n Op. at 9 (Jul 10, 2014).
Inasmuch as Varidesk has adduced undisputed evidence demonstrating that it is difficult,
if not impossible, to ascertain the source of infringing products entering the United States, and
37
PUBLIC VERSION
that there is a pattern of such importation, it is recommended that in the event the Commission ‘
finds a violation of section 337, the appropriate remedy is a GEO that encompasses the
infringing products. 	3
B. Cease and Desist Orders
Under section 337(f)(1), the Commission can issue a cease and desist order “[i]n addition
to, or in lieu of [an exclusion order, against] any person violating this section, or believed to be
violating this section . . . directing such person to cease and desist from engaging in the unfair
methods or acts involved.” 19 U.S.C. § 1337(f)(1). The Commission generally issues cease and
desist orders directed to a domestic respondent when the respondent has a commercially
significant inventory of infringing products in the United States that could be sold so as to
undercut the remedy provided by an exclusion order. Certain Crystalline Cefadroxil
Monohydrate, Inv. No. 337-TA-293, Comm’n Op. at 37-42, USITC Pub. No. 2391 (June 1991).
Defaulting domestic respondents are presumed to have commercially significant U.S.
inventories. Certain Video Game Systems, Accessories, and Components Thereofl Inv. No.
337-TA-473, Comm’n Op. at 2 (Dec. 24, 2002) (“Video Game Systems”). The Commission has
also issued cease and desist orders against foreign respondents where the foreign respondent’s
domestic distributor maintains a commercially significant inventory in the United States. See,
e.g., Certain Toner Cartridges and Components Thereofl Inv. No. 337-TA-740, Con1m’n Op. at
.7-8(Oct. 5, 2011) (issuing GEO); Certain Abrasive Products Made Using a Process for Powder
Preforms, and Products Containing Same, Inv. No. 337-TA-449, Comm’n Op., 2002 WL
31093610, at *4 (May 9, 2002).
38
PUBLIC VERSION
With respect to a CDO, Varidesk argues:
Cease and desist orders are necessary to target conduct by the Non
Participating Respondents, which include online activities that effectively
occur within the United States and, therefore, cannot be reached by a
general exclusion order. . . . Although a [general exclusion order (“GEO”)]
will be able to abate some of the shipments of infringing products to the
United States, a CDO is necessary to stop the substantial and persistent
online infringing activities of these respondents using online marketplaces
like Alibaba, Amazon and eBay. A CDO would further serve to deter the
behavior of Respondents who would otherwise fall outside the reach of a
GEO. Here, the Non-Participating Respondents’ activities occur almost
entirely online. SOF 1]63. . . .
Because the Non-Participating Respondents did not participate in this
Investigation and, therefore, provided no discovery, it is difficult to
ascertain their respective inventories of infringing imported products
located in the United States. Nevertheless, Varidesk has provided sufficient
evidence for the Commission to either infer or conclude that “commercially
significant” inventories of imported, infringing products are in the
possession of each of the Non-Participating Respondents or related entities
in the United States or, at the very least, each of the Non-Participating
Respondents are engaged in significant commercial business operations in
the United States. See SOF 1]1l54-59, 63-71.
Mem. at 34, 35 (footnote omitted). 	‘
The Staff argues that the issuance of cease and desist orders against the Non-Participating
Respondents is not appropriate based on the circumstances of this investigation:
Varidesk seeks CDOs against all Non-Participating Respondents, because
it argues that all facts in the Complaint are deemed to be true. Memo at 34.
But that standard applies to defaulting Respondents, and no finding of
default was requested in this investigation. S
Varidesk has not provided evidence of significant inventories in the United
States, instead incorrectly arguing that the facts of the Complaint should be
assumed true and that “the Commission should infer a significant inventory
of infringing products in the U.S.” based on the default standard. Memo at
34-35.
Because Varidesk has not provided any evidence of inventory in the United
States, the record does not support the issuance of a CDO against any of the
Respondents. See Certain Industrial Automation Systems and Components
Thereof Including Control Systems, Controllers, Visualization Hardware,
- 	39
PUBLIC VERSION
Motion and Motor Control Systems, NetworkingVEquipment, Safety
Devices, and Power Supplies, Inv. No. 337-TA-1074, Comm’n Op. at 9-10
(April 24, 2019) (not issuing CDO in the absence of evidence of sales from
US inventories).
Staff Resp. at 89.
The lack of evidence regarding domestic inventories of the Accused Products is not
surprising, inasmuch as all Non-Participating Respondents have failed to appear and did not
participate in discovery. Although Varidesk argues that commercially significant domestic
inventories on the part of the Non-Participating Respondents should be inferred, the undersigned
declines to do so. The investigations to which Varidesk cites in support of its argument, Certain
Arrowheads with Deploying|Blades & Components Thereof & Packaging Therefor, Inv. No.
337-TA-997, and Certain Electric Skin Care Devices, Brushes and Chargers Therefore, and Kits
Containing the Same, Inv. No. 337-TA-9'59, involved respondents found to be in default. Here,
as noted by the Staff in its brief, the Non-Participating Respondents have not been found in
default.
Therefore, it is not recommended that the Commission issue cease and desist orders
against the Non-Participating Respondents in the event a violation of section 337 is found.
C. Bond
Pursuant to 19 U.S.C. § l337(j)(3), the administrative law judge and the Commission
must determine the amount of bond to be required of a respondent during the Presidential review
period. The purpose of the bond is to protect the complainant from any injury. See l9 C.F.R.
§§ 210.42(a)(l)(ii), 2l0.50(a)(3). When reliable price information is available, the Commission
has often set the bond at the price differential between the domestic product and the imported,
infringing product. See Certain Microsphere Adhesives, Processes for Making Same, and
40
PUBLIC VERSION
Products Containing Same, Including SelfiStick Repositionable Notes, Inv. No. 337-TA-366,
Comm’n Op. at 24 (1995) (“Certain Microsphere Adhesives”). In other cases, such as when “a
reliable price differential cannot be obtained,” the Commission has required a 100 percent bond
See, e.g., Certain Toner Cartridges and Components Thereofi Inv. No. K337-TA-740,Comm’n
Op. at 11 (Oct. 5, 2011)_(citing Certain Cigarettes and Packaging Thereoji Inv. No.
337-TA-643, Comm’n Op. at 30 (Oct. 1, 2009)). _ Y 	1
With respect to the appropriate amount of bond, Varidesk argues:
[A] bond set at 100% of the entered value of the infringing products would
be appropriate to mitigate harm to Varidesk during the Presidential review
period. Although an appropriate bond could be calculated based on the
difference between the average manufacturers’ suggested retail price for the
Varidesk domestic industry products and the Respondents’ infringing
products, since the Non-Participating Respondents did not participate in this
Investigation and, therefore, provided no discovery relating to pricing or
royalty information, such a calculation would be necessarily imprecise.
Further, the infringing imported products are sold at various prices and
- likely differ depending on customer and volume purchased.
Mem. at 43-44. 	.
The Staff agrees with Varidesk’s proposal of a 100 percent bond:
In the Staffs view, the evidentiary record lacks sufficiently reliable
information as to price levels for the Non-Participating Respondents’
adjustable-height desk platforms in the United States or appropriate royalty
rates. This lack of infonnation is due to the fact that these respondents
elected not to participate in this investigation. There is also no evidence of
relevant royalty rates. . . . Given the state of the evidentiary record, and the
., fact that all of the affected Respondents have defaulted rather than provide
further discovery, the Staff agrees that Varidesk’s request for a bond of 100
percent of the entered value of infringing height-adjustable desk platforms
and components thereof is appropriate in the circumstances of this
investigation. This amount should be sufficient to prevent any harm to
Varidesk during the period of Presidential review.
Staff Resp. at 90-91. it 	"
\ 	41
PUBLIC VERSION
In view of the fact that the Non-Participating Respondents are not in default, it is the
recommended detennination of the undersigned that the bond amount should be set at 100
percent of the entered “valueof the accused products during the Presidential review period in the
event a violation of section 337 is found.
XI. ORDER
To expedite service of the public version, each party is hereby ordered to file with the
Commission Secretary no later than September 25, 2019, a copy of this initial and recommended
determination with brackets to show any portion considered by the party (or its suppliers of
information) to be confidential, accompanied by a list indicating each page on which such a
bracket is to be fotmd. If a party (and its suppliers of information) considers nothing in the initial
determination to be confidential, and thus makes no request that any portion be redacted from the
public version, then a statement to that effect shall be filed.
loc£ 	7
Chief Administrative Law Judge
/
42
'-:i
CERTAIN HEIGHT-ADJUSTABLE DESK PLATFORMS
AND COMPONENTS THEREOF
Y INV. NO. 337-TA-1125
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached INITIAL DETERMINATION Order No. 33
has been served by hand upon the Commission Investigative Attorney, Andrew Beverina, Esq.
and the following parties as indicated, on ; _ .,,m	-1
i\'\./"’\>_.'"\ , 	.
- ., gr“? ' 	r
|==§’“:‘
Lisa R. Barton, Secretary
U.S. Intemational Trade Commission
500 E Street SW, Room l 12A
' Washington, D.C. 20436
FOR COMPLAINANT VARIDESK LLC
Adam R. Hess, Esq.
VENABLE LLP
600 Massachusetts Avenue, NW
Washington, DC 20001
( ) Via Hand Delivery
(1)/Express Delivery
( ) Via First Class Mail
( )Other:	i
FOR RESPONDENT ALBEIT LLC
135 l_Broadway Street
San Francisco, CA 94109
I ( ) ia Hand Delivery
Express Delivery
( ) Via First Class Mail
( )Other:	i
FOR RESPONDENT ATC SUPPLY LLC
12604 Canterbury Drive '
Plainfield, IL 60585-3000
( ) ia Hand Delivery e
('\/Express Delivery
( ) Via First Class Mail
( ) Other:
CERTAIN HEIGHT-ADJU STABLE DESK’PLATFORMS
AND COMPONENTS THEREOF
INV. NO. 337 TA-1125
FOR RESPONDENT SHENZHEN ATC NETWORK SCIENOLOGY CO., LTD
Room 1902, Zian Business Building
The Xinan Second Road
Baoan District
Shenzhen, 518000 Guangdong
China
(W 	HandDelivery	( Express Delivery
( ) Via First Class Mail
( ) Otherz.
FOR RESPONDENT AMAZON IMPORT INC.
9910 Baldwin Place
El Monte, CA 91731 	(Mg/4ia Hand Delivery	('- Express Delivery
( ) Via First Class Mail
( ) Other:
FOR RESPONDENT NINGBO GYL INTERNATIO NAL TRADINGc0., LTD
228 Mingbin Road V
Luoto Area, Zhenhai
Ningbo, 315202 Zhejiang
China
( V)/</iaHand Delivery	( 3 Express Delivery
( ) Via First Class Mail
( ) Other:	-i__
FOR RESPONDENT JV PRODUCTS INC.
1825 Houret Court
Milpitas, CA 95035 	\//Via HandDelivery	) Express Delivery
) Via First Class Mail
( ) Other:
FOR RESPONDENT VANSON DISTRIBUTING, INC.
1825 Houret Court
Milpitas, CA 95035 	(\K/Via Hand Delivery	( Express Delivery
( ) Via First Class Mail
( ) Other:
CERTAIN HEIGHT-ADJUSTABLE DESK PLATFORMS y
AND COMPONENTS THEREOF
INV. NO. 337-TA-1125
FOR RESPONDENT VANSON GROUP, INC.
1825 H0uretC0u1t
Milpitas, CA 95035 	(V;/{Z1 Hand Delivery	( Express Delivery
( ) Via First Class Mail
( )Other:	i
FOR RESPONDENT HAINING ORIZEAL IMPO AND EXPORT CO., LTD.
N0. 486 South Hai Chang Road
Haining, 314400 Zhejiang
China
RT
4th Floor, Building B, Jinhui Plaza 	(‘Mia Hand Delivery	( Express Delivery
( ) Via First Class Mail
( )Other:	i
FOR RESPONDENT SMUGDESK, LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746 	( £3)/la Hand Delivery	( Express Delivery
( ) Via First Class ‘I\/Iail
§)Other:	p
FOR RESPONDENT WUHU XINGDIAN INDUSTRIAL CO., LTD
No. 168 Xici Sth Road
Mechanical Industrial Zone
Wuhu, 241100 Anhui .
China
( S/ia HandDelivery ‘	( Express Delivery
( ) Via First Class Mail
( )Other:	i
_ 1
UNITED STATES INTERNATIONAL TRADE COMMISSION
WASHINGTON, D.C. 20436
In the Matter of
CERTAIN HEIGHT-ADJUSTABLE 	I|1v_N0, 337-TA-1125
DESK PLATFORMS AND
COMPONENTS THEREOF
012111211	N0. 27; ' CONSTRUING TERMS OF THE ASSERTED PATENTS
(April 1, 2019)
TABLE OF CONTENTS
Page
Introduction ........................................................................................................................ ..l
In General........................................................................................................................... ..2
Relevant Law ..................................................................................................................... ..2
Level of Ordinary Skill in the Art ...................................................................................... ..5
The Asserted Patents .......................................................................................................... ..6
A. U.S. Patent No. 9,113,703 ...................................................................................... ..6
B. U.S. Patent No. 9,277,809...................................................................................... ..6
C. U.S. Patent No. 9,554,644...................................................................................... ..7
D. U.S. Patent No. 9,924,793 ...................................................................................... ..7
Construction of Agreed-Upon Claim Terms...................................................................... ..7
Construction of Disputed Claim Terms ............................................................................. ..8
A. “base” ..................................................................................................................... ..8
B. “parallel” .............................................................................................................. ..12
C. “anchor” ............................................................................................................... ..16
D. “locking mechanism” ........................................................................................... ..1s
l. Respondents’ Means-Plus-Function Argument ....................................... ..20
2. Respondents’ Indefiniteness Argument ................................................... ..22
E. “releasably lock the [ ] set of arms in position with respect to the [ ] mounting
bracket/upper platform” ....................................................................................... ..23
F. “member” ............................................................................................................. ..27
G. “lateral end” ......................................................................................................... ..27
I. INTRODUCTION
The Commission instituted this investigation to determine whether certain height
adjustable desk platfonns and components thereof infringe U.S. Patent Nos. 9,113,703 (“the ’703
patent”), 9,277,809 (“the ’809 patent”), 9,554,644 (“the ’644 patent”), and 9,924,793 (“the ’793
patent”). See 83 Fed. Reg. 36621 (July 30, 2018). As set forth in the Notice of Investigation, the
plain language description of the accused products or category of accused products, which
defines the scope of the investigation, is “a desk platform that sits on an existing desk or work
surface and can be adjusted to different heights.” Id.
The complainant is Varidesk LLC (“Varidesk” or “Complainant”) of Coppell, Texas. Id.
The named respondents participating in the Markman process are Best Choice Products, Dakota
Products Inc., Hangzhou Grandix Electronics Co. Ltd., Huizhou Chang He Home Supplies Co.,
Ltd., S.P. Richards Co. dba Lorell, Nantong Jon Ergonomic Office Co., Ltd., Qidong Vision
Mounts Manufacturing Co., Ltd., and Cknapp Sales Inc. dba Vivo (collectively, “Participating
Respondents” or “Respondents”).‘ See id.; Notice Regarding Claim Construction at l n.l (EDIS
Doc. No. 669341) (Mar. 7, 2019). The Office of Unfair Import Investigations (“Staff”) is also a
party to this investigation. Id.
A Markman hearing was held December 10, 2018 regarding the interpretation of certain
claims of the patents at issue. The parties filed initial and reply claim constmction briefs,2
1As of the date of this order, all Participating Respondents have settled except Dakota Trading,
Inc. (“Dakota”).
2 The Staff elected to file an initial brief only, and did not file a reply brief.
wherein each party offered its construction for the claim terms in dispute, along with support for
its proposed interpretation. The parties also submitted a Joint Claim Construction Chart?
II. IN GENERAL
_The claim terms construed in this Order are done so for the purposes of this section 337
investigation. Those tenns not in dispute need not be construed. See Vanderlande Indus.
Nederland BVv. Int ’l Trade Comm ’n, 366 F.3d 1311, 1323 (Fed. Cir, 2004) (noting that the
administrative law judge need only construe disputed claim terms).
III. RELEVANT LAW
“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 banc) (internal citations omitted), afl’d,
517 U.S. 370 (1996). Claim construction is a “matter of law exclusively for the court.” Id. at
970-71. “The construction of claims is simply a way of elaborating the nonnally terse claim
language in order to understand and explain, but not to change, the scope of the claims.” Embrex,
Inc. v. Serv. Eng g Corp, 216 F.3d 1343, 1347 (Fed. Cir. 2000).
3 For convenience, the briefs and chart submitted by the parties shall be referred to as:
CMIB Complainant’s Initial Markman Brief
CMRB Complainant’s Reply Markman Brief
RMIB Respondents’ (Corrected) Initial Markman Brief
RMRB Respondents’ Reply Markman Brief
SMIB I Staffs Initial Markman Brief
JC l Joint Proposed Claim Construction Chart
2
Claim construction focuses on the intrinsic evidence, which consists of the claims
themselves, the specification, and the prosecution history. See Phillips v. AWH C0rp., 415 F.3d
1303, 1314 (Fed. Cir. 2005) (en banc); see also Markman, 52 F.3d at 979. As the Federal Circuit
in Phillips explained, courts must analyze each of these components to determine the “ordinary
and customary meaning of a claim term” as understood by a person of ordinary skill in art at the
time of the invention. 415 F.3d at 1313. “Such intrinsic evidence is the most significant source of
the legally operative meaning of disputed claim language.” Bell Atl. Network Servs., Inc. v.
Covad C0mmc'ns Grp., Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001).
“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
to which the patentee is entitled the right to exclude.”’ Phillips, 415 F.3d at 1312 (quoting
Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir.
2004)). “Quite apart from the written description and the prosecution history, the claims
themselves provide substantial guidance as to the meaning of particular claims terms.”
Id. at 1314; see also Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed.
Cir. 2001) (“In construing claims, the analytical focus must begin and remain centered on the
language of the claims themselves, for it is that language that the patentee chose to use to
‘particularly point [ ] out and distinctly claim [ ] the subject matter which the patentee regards as
his invention”). The context in which a term is used in an asserted claim can be “highly
instructive.” Phillips, 415 F.3d at 1314. Additionally, other claims in the same patent, asserted or
Lmasserted,may also provide guidance as to the meaning of a claim tenn. Id.
The specification “is always highly relevant to the claim construction analysis. Usually it
is dispositive; it is the single best guide to the meaning of a disputed term.” Phillips, 415 F.3d at
1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
3
“[T]he specification may reveal a special definition given to a claim term by the patentee that
differs from the meaning it would otherwise possess. In such cases, the inventor’s lexicography
governs.” Id. at 1316. “In other cases, the specification may reveal an intentional disclaimer, or
disavowal, of claim scope by the inventor.” Id. As a general rule, however, the particular
examples or embodiments discussed in the specification are not to be read into the claims as
limitations. Id. at 1323. ln the end, “[t]he construction that stays true to the claim language and
most naturally aligns with the patent’s description of the invention will be . . . the correct
construction.” Id. at 1316 (quoting Renishaw PLC v. Marposs Societa ’per Azioni, 158 F.3d
1243, 1250 (Fed. Cir. 1998)).
In addition to the claims and the specification, the prosecution history should be
examined, if in evidence. Phillips, 415 F.3d at 1317; see also Liebel-Flarsheim C0. v. Medrad,
Inc. , 358 F.3d 898, 913 (Fed. Cir. 2004). The prosecution history can “often inform the meaning
of the claim language by demonstrating how the inventor understood the invention and whether
the inventor limited the invention in the course of prosecution, making the claim scope narrower
than it would otherwise be.” Phillips, 415 F.3d at 1317; see also Chimie v. PPG Indus. Inc. , 402
F.3d 1371, 1384 (Fed. Cir. 2005) (“The purpose of consulting the prosecution history in
construing a claim is to exclude any interpretation that was disclaimed during prosecution”).
When the intrinsic evidence does not establish the meaning of a claim, then extrinsic
evidence (i.e., all evidence external to the patent and the prosecution history, including
dictionaries, inventor testimony, expert testimony, and learned treatises) may be considered.
Phillips, 415 F.3d at 1317. Extrinsic evidence is generally viewed as less reliable than the patent
itself and its prosecution history in determining how to define claim tenns. Id. at 1317. “The
court may receive extrinsic evidence to educate itself about the invention and the relevant
4
technology, but the court may not use extrinsic evidence to arrive at a claim construction that is
clearly at odds with the construction mandated by the intrinsic evidence.” Elkay Mfg. C0. v. Ebco
Mfg. Co., 192 F.3d 973, 977 (Fed. Cir. 1999).
If, after a review of the intrinsic and extrinsic evidence, a claim term remains ambiguous,
the claim should be construed so as to maintain its validity. Phillips, 415 F.3d at 1327. Claims,
however, cannot be judicially rewritten in order to fulfill the axiom of preserving their validity.
See Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999). Thus, “if the only claim
construction that is consistent with the claim’s language and the written description renders the
claim invalid, then the axiom does not apply and the claim is simply invalid.” Id.
A claim must also be definite. Specifically, “[t]he specification shall conclude with one
or more claims particularly pointing out and distinctly claiming the subject matter which the
applicant regards as his invention.” 35 U.S.C. § 112, 1]2. The Supreme Court has held that § 112,
1]2 requires “that a patent’s claims, viewed in light of the specification and prosecution history
inform those skilled in the art about the scope of the invention with reasonable certainty.”
Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 at 2129 (2014). A claim is required to
“provide objective botmdaries for those of skill in the art,” and a claim term is indefinite if it
“might mean several different things and no informed and confident choice is among the
contending definitions.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir.
2014). A patent claim that is indefinite is invalid. 35 U.S.C. § 282(b)(3)(A).
IV. LEVEL OF ORDINARY SKILL IN THE ART
' Varidesk takes the position that “[t]he disputed tenns should be construed in accordance
with their ordinary and customary meanings,” and that the level of ordinary skill in the art
therefore does not affect the construction of any of the disputed terms. See CMIB at 16.
5
Nevertheless, Varidesk submits that “a person of ordinary skill in the relevant art will have at
least two or more years of college-level coursework in mechanical engineering or industrial
design, plus awareness or appreciation of ergonomic issues, which may be gained for example
through one to two years of work experience in ergonomics or industrial design.” Id. at 16.
Respondents did not propose a level of ordinary skill in the art for the asserted patents.
See SMIB at 5.
The Staff has adopted Varidesk’s proposed level of ordinary skill for purposes of the
claim construction analysis. See SMIB at 5.
The undersigned finds that Varidesk’s proposal best reflects the level of skill in the art at
the time of the asserted patents. Accordingly, it is found that one of ordinary skill in the art
would have had have at least two or more years of college-level coursework in mechanical
engineering or industrial design, plus awareness or appreciation of ergonomic issues, which may
be gained for example through one to two years of work experience in ergonomics or industrial
design.
V. THE ASSERTED PATENTS
A. U.S. Patent N0. 9,113,703
Asserted U.S. Patent No. 9,113,703 is titled, “Adjustable Desk Platform.” The ’703
patent issued on August 25, 2015, and the named inventor is Daniel Flaherty. Varidesk asserts
claims 1-4 and 6-ll ofthe ’703 patent. 83 Fed. Reg. 36621 (July 30, 2018). Claim 1 is an
independent claim. See ’703 patent.
B. U.S. Patent No. 9,277,809‘
Asserted U.S. Patent No. 9,277,809 is titled, “Adjustable Desk Platform.” The ’809
patent issued on March 8, 2016, and the named inventors are Daniel G. Flaherty, David Patton,
6
and Sheng Chien Wang. Varidesk asserts claims 1-3, 5-18, and 22-28 of the ’809 patent. 83 Fed.
Reg. 36621 (July 30, 2018). Claims 1, 11, and 22 are independent claims. See ’809 patent.
C. U.S. Patent N0. 9,554,644
Asserted U.S. Patent No. 9,554,644 is titled, “Adjustable Desk Platform.” The ’644
patent issued on January 31, 2017, and the named inventors are Daniel G. Flaherty, David
Patton, and Sheng Chien Wang. Varidesk asserts claims 1-15, 19, 21-23, 25-26, and 28-36 of the
’644 patent. 83 Fed. Reg. 36621 (July 30, 2018). Claims 1, 13, 21, 26, 29, and 33 are
independent claims. See ’644 patent.
D. U.S. Patent No. 9,924,793
Asserted U.S. Patent No. 9,924,793 is titled, “Adjustable Desk Platform.” The ’793
patent issued on March 27, 2018, and the named inventors are Daniel G. Flaherty, David Patton,
and Sheng C. Wang. Varidesk asserts claims 1-11 and 20-50 of the ’793 patent. 83 Fed. Reg.
36621 (July 30, 2018). Claims 1, 20, 22, 32, 40, and 45 are independent claims.
VI. CONSTRUCTION OF AGREED-UPON CLAIM TERMS
The parties have agreed to the following constructions:
Claim Term(s) 	Relevant Claims 	Parties’ Agreed
Construction
“mounting brackets ’703 patent: claim 1 	“mounting brackets attached
extending below the ,809 pawn: claim 22 	to and projecting below the
upper platform” / 	upper platform” /
’644 patent: claims 14, 26, 29, 34
“mounting brackets 793 atem, claim 32 	“mounting brackets attached
extending upward from 	p ' 	to and projecting upward
the base” 	from the base”
7
Claim Term(s) 	Relevant Claims 	Parties’ Agreed
Construction
“a first handle connected
to the lower surface of
the upper platform” /
“a first handle mounted
to the lower surface of
the upper platfonn” /
“the first handle . . .
pivotally connected to
the lower surface of the
upper platform” /
“the first handle is . . .
pivotally connected to
the lower surface of the
upper platform”
’703 patent: claim 1 	These phrases should be
,809 atem, claim 22 	construed consistently such
P 	that the handle 1ssecured to
i793 Patent C13-iITl5	32, 40, 45 the lower surface of the upper
platform
JC at 2. The undersigned hereby adopts the parties’ proposed constructions for the terms set forth
above and shall construe them according to their agreed-to definitions.
VII. CONSTRUCTION OF DISPUTED CLAIM TERMS
A. “base”
Several disputed claim terms relate to the “base” of the adjustable desk. The parties have
addressed these terms together and agree that the terms should be construed to mean the same
thing. See CMIB at 18; RMIB at 19; SMIB at 6. The following chart sets forth the claim terms at
issue, as well as the parties’ proposed constructions:
8
Disputed “Base” Terms
claims 20, 40, and 45)
0 “a base located beneath the upper platform, the base defining a bottom surface without
legs that is adapted to sit on an existing desk” (’703 Patent, claim 1)
0 “a base located beneath the upper platform, the base having a bottom that is adapted to
sit on an existing desk” (’809 Patent, claims 1, 11, and 22; ’793 Patent, claim 32)
1 “a base located beneath the upper platfonn, the base defining a bottom that is adapted
to sit on an existing desk” (’644 Patent, claims 1, 13, 26, 29, and 33; ’793 Patent,
Complainant’s Construction YRespondents’ Construction 	Staff’s Construction
“a lower platform or work
surface beneath the upper
platform that is adapted to sit
on an existing desk”
Plain and ordinary meaning:
“a base located beneath the
upper platform, the base
defining a bottom surface
without legs that is adapted to
sit on an existing desk”
Varidesk does not believe that
this phrase needs construction,
but if the ALJ detennines that
this tenn should be construed,
the Staffs proposed
construction is acceptable to
Varidesk.
Plain and ordinary meaning:
“a structure, having a _
bottom surface, which forms
the base of an adjustable
desk platform assembly”
JC at 3. 	.
The dispute among the parties centers on whether or not the claimed “base” is limited to a
“platform.” Varidesk and the Staff argue that the plain and ordinary meaning of “base” does not
so limit, whereas Respondents argue that Provisional Application No. 1/651,101 (“the ’101
application”), to which each of the asserted patents claims priority, limits the construction of
“base” to a platform. See RMIB at 19-25. As discussed in more detail below, however,
Respondents’ argument is not persuasive.
9
The ’101 provisional application was filed on May 24, 2012 and disclosed “an adjustable
desktop platform.” ’10l provisional application at [0001]. Of particular importance to the claim
term at issue is the passage stating that the “adjustable desktop platform includes a base platform
intended to set on an existing worker’s desk.” Id at [0017]. Figure 5 of the ’101 provisional
application shows the various parts of the desk, including the “base platform.” Id. at Fig. 5.
The asserted patents incorporate the ’101 provisional application by reference, making
the provisional “effectively part of’ the specifications of the asserted patents. Trustees of
Columbia Univ. in the City 0fN.Y. v. Symantec C0rp., 811 F.3d 1359, 1365-66 (Fed. Cir. 2016)
(quoting Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1282 (Fed Cir. 2000)).
Respondents argue this means that the platform configuration of the ’101 provisional application
is incorporated by reference such that any other type of base is not supported by the ’101
provisional application. See RMIl3 at 19-25. Yet, the ’l01 provisional application does not limit
the claimed bases to platforms only. In particular, the ’101 provisional application uses the term
“base platform,” a term not used in the child patents, which instead use the term “lower
platform” in the specification and claim a “base” rather than a “base platform.” See, e.g., ’703
patent at 3:13 (lower platform), claim 1 (base).
The specification of the ’101 provisional application teaches that the “base platform” is
what sits on the existing desk. ’101 provisional application at [0017]. “Base platfonn” is a
compound tenn wherein “base” modifies “platform,” meaning that the base can be, but does not
have to be, a platform. This interpretation of “base platform” is confirmed by claim 1 of the ’101
provisional application, which distinguishes the base from the platform by claiming “a base
having a lower platform.” Id. at claim 1. If, as Respondents argue, the lower platform of the
10
asserted patents were the claimed base, then claim 1 of the ’101 provisional application would
read “a base having a base,” which is an unreasonable interpretation.
Turning now to the asserted patents, the claim language and specification demonstrate
that the claimed “base” is not limited to a platform. For instance, the claims of the asserted
patents do not require a base that must be a platform, but instead use broader language:
~ “[A] base located beneath the upper platform, the base defining a bottom surface
without legs that is adapted to sit on an existing desk.” ’703 patent at claim 1.
' “[A] base located beneath the upper platform, the base having a bottom that is
adapted to sit on an existing desk.” ’809 patent at claim 1.
~ “[A] base located beneath the upper platfonn, the base defining a bottom that is
adapted to sit on an existing desk.” ’644 and ’793 patents at claim 1.
This choice of claim language provides guidance as to the meaning of the term at issue, and in no
way suggests that the claimed base is limited to a platform.
Moreover, the specifications of the asserted patents disclose an adjustable work desk with
“lower platform 20.” See, e.g. , ’703 patent at 3:13; ’809 patent at 4:1 l; ’644 patent at 4:24; ’793
patent at 4:24. Although lower platform 20 is the element that Respondents argue must be the
base, the specifications and drawings disclose embodiments wherein lower platform 20 does not
rest on the desk, as is required for the “base.” In these embodiments, counterweights 22 are
beneath the bottom surface of the lower platform, and thus the counterweights comprise the base
resting on the desk. See ’703 patent at 3:44-46; ’809 patent at 4:43-45; ’644 patent at 4:56-58;
see also, e.g., ’703 patent Figs. 2, 14 (showing counterweights 22 beneath platform 20).
11
Therefore, the intrinsic evidence demonstrates that the claimed “base” is not limited to a
platform. See Vitronics, 90 F.3d at 1583 (holding a claim construction that excludes a preferred
embodiment “is rarely, if ever, correct”).
In sum, the claims, specifications, drawings, and prosecution history of the asserted
patents confirm that, although a platform can be the claimed base, it does not have to be the base
Accordingly, it is the determination of the undersigned that the claim term “base” should be
construedto mean “a structure, having a bottom surface, whichforms the base of an
adjustable desk platform assembly,” which is a construction that reflects the plain and ordinary
meaning of the tenn and that comports with the intrinsic evidence.
B. “parallel”
Two disputed claim terms relate to “parallel” movement of the claimed upper platform
with respect to the base. The parties have addressed these terms together and agree the terms can
be construed to mean the same thing. See JC at 4. The following chart sets forth the claim terms
at issue, as well as the parties’ proposed constructions:
Disputed “Parallel” Movement Terms
0 “the first and second sets of arms adapted to move the upper platform substantially in
parallel with the base” (’703 Patent, claim l; ’809 Patent, claim 22; ’793 Patent, claim
32)
0 wherein the first and second sets of arms are adapted for movement of the upper
platform substantially in parallel with the base” (’809 Patent, claims 1 and 11; ’644
Patent, claims 1, 13, 26, 29, and 33; ’793 Patent, claims 20, 40, and 45)
12
Complainant’s Construction Respondents’ Construction 	Staff’s Construction
Plain and ordinary meaning:
“the first and second sets of
anns adapted to move the
upper platform substantially in
parallel with the base”
Varidesk does not believe that
this phrase needs construction,
but if the ALJ determines that
this term should be construed,
the Staff’s proposed
construction is acceptable to
Varidesk.
“wherein the first and second
sets of anns are adapted for
movement of the upper
platform in the horizontal
plane (or in the X direction)
while the upper platform
remains substantially parallel
to the base”
Plain and ordinary meaning:
“the first and second sets of
arms are capable of moving
the upper platform
substantially in parallel v~n'th
the base”
JC at 4.
The dispute among the parties centers on whether or not “parallel” requires movement on
the horizontal plane. Parallel is a well-known term, and construction of this term therefore
requires “little more than the application of the widely accepted meaning of commonly
understood words.” See Phillips, 415 F.3d at 1314. The constructions proposed by Varidesk and
the Staff for the disputed terms reflect the commonly understood meaning of “parallel,” whereas
Respondents’ proposed construction attempts to re-define “parallel.” Yet, Respondents do not
identify evidence showing that the patentee acted as his own lexicographer in re-defining
“parallel.” See Vitronics, 90 F.3d at 1582. Moreover, Respondents’ proposed construction
improperly imports limitations into the claim and renders superfluous several dependent claims
of the asserted patents.
As an initial matter, Respondents’ argument in favor of their proposed construction relies,
at least in part, on an assumption that the patentee re-defined the term “parallel” to mean
something other than its customary meaning. See Resp. IMB at 26-35. The term “parallel” has a
13
well-known definition, for example, “extending in the same direction, everywhere equidistant,
and not meeting.” See Staff Resp. Ex. 1 (Webster’s Collegiate Dictionary, 840 (10th Ed. 2002)).
Respondent’s proposed construction adds a lateral movement requirement to the tenn parallel,
but there is no evidence in the file history or specification that the inventor intended to re-define
“parallel.”
Respondents also argue that amendments made during prosecution of another patent in
the same family, U.S. Patent No. 8,671,853 (“the ’853 patent”), means that “parallel” must have
lateral movement, but this argument is not persuasive. See RMIB at 31-32. Specifically, the
amendments cited by Respondents are unrelated to the limitation at issue here. The ’853 file
history shows that the applicant amended two different limitations in separate Office Action
responses: (1) the first added a limitation that the brackets, and not the upper platform, are
parallel to the lower platform, and (2) the second added a limitation that the upper platform
moves rearward. RMIB Ex. 16 (’853 file history) at Aug. 27, 2013 and Dec. 13, 2013. These
amendments fail to support Respondents’ claim construction argument.
Respondents also argue that the “claims require an ‘upper platform’ coupled to a ‘base’
by sets of ‘pivot arms,”’ but this argument is not persuasive. See RMIB at 26. As an initial
matter, none of the asserted claims recites “pivot arms,” but rather merely “arms.” Respondents’
unwarranted addition of “pivot” to “arms” in the claims leads to their argument that this
“structure necessitates a ‘four bar linkage’. . . .” See id. Yet, the claims do not require a four-bar
linkage, and the fact that the exemplary embodiments use a certain type of pivot arm does not
mean the invention is limited to those examples. In particular, the asserted patents specifically
state that the invention is not limited to the preferred embodiments. See ’703 patent at 7:40-54;
’809 patent at 11:35-49; ’644 patent at 11:56-12:3; ’793 patent at 11:56-12:3; cf GLG Farms
14
LLC v. Brandt Agricultural Products, Ltd., 2018 WL 3659058, at *3 (Fed. Cir. 2018) (limiting
the claimed invention to an arrangement of parts described as “the present invention”).
Respondents’ attempt to re-define “parallel” to require horizontal or lateral movement
also violates the doctrine of claim differentiation, which presumes that each claim is different in
scope. Comark Communications, Inc. v. Harris C0rp., 156 F.3d ll82, ll87 (Fed. Cir. 1998).
The presumption is especially strong where, as in this investigation, the “limitation that is sought
to be ‘read into’ an independent claim already appears in a dependent claim.” Liebel-Flarsheim,
358 F.3d at 910 (Fed. Cir. 2004). For example, asserted independent claim l of the ’644 patent
claims (in relevant part): “wherein the first and second sets of arms are adapted for movement of
the upper platform substantially in parallel with the base between a raised position and a lowered
position.” ’644 patent at claim 1. Claim 11, which depends from claim 1, adds the limitation
“wherein the upper platform moves laterally with respect to the base when moved from the
lowered position to the raised position.” Id. at claim ll (emphasis added). If, as Respondents
propose, “parallel” were defined to require horizontal or lateral movement, then claim ll would
be entirely superfluous.“
In sum, there is nothing in the claims, specification, or prosecution history requiring
movement on the horizontal plane. Indeed, the doctrine of claim differentiation strongly suggests
that there is no movement required on the horizontal plane. Therefore, it is determined that the
“parallel” movement claim terms should be construed such that “thefirst and second sets of
4 Dependent claim 3 of the ’809 patent would likewise be rendered superfluous under
Respondents’ proposed construction. Claim l of the ’809 patent recites language similar to that
of claim l of the ’644 patent. Further, as with claim ll of the ’644 patent, dependent claim 3 of
the ’809 patent adds the limitation “wherein the upper platform moves laterally with respect to
the base when moved from the lowered position to the raised position.” ’809 patent at claims l
and 3.
15
arms are capable of moving the upper platform substantially in parallel with the base.” This
construction is consistent with the common definition of “parallel,” and reflects the specific
usage of the term in the patent specifications and claims.
C. “anchor”
The disputed claim temi “anchor” is recited in claims 1 and 2 of the ’703 patent; claims
1, 12, 22, and 23 of the ’809 patent; claims 5 and 32 of the ’644 patent; and claim 34 of the ’793
patent. The parties’ proposed constructions are as follows:
Construction
Complainant’s 	Respondents’ Construction 	Staffs Construction
Plain and ordinary meaning:
“anchor”
Varidesk does not believe
that this term needs
construction, but if the ALJ
determines that this term
should be construed, it should
be construed according to a
standard dictionary
definition: “something that
serves to hold an object
firmly,” altematively, the
Staff’s proposed construction
is acceptable to Varidesk.
“a peg or pin adapted to
engage a perforation or hole in
the lower mounting bracket
and/or arm”
Plain and ordinary meaning: “a
mechanical piece that holds an
object in place”
JC at 5.
The constructions proposed by Varidesk and the Staff are similar in that they encompass
the concept ofan anchor being something that holds something else in place. Respondents’
proposal, on the other hand, is overly restrictive and not supported by the intrinsic evidence.
16
ln particular, the claim language itself does not specify that the claimed anchor must be a
peg or a pin. Exemplary claim 1 of the ’703 patent recites a “first anchor adapted to releasably
lock the first set of arms . . . .” ’703 patent at claim 1. Although the claim language is broad
enough to allow the anchor to be a peg or pin, the claim language does not limit the anchor to
only a peg or pin.
As discussed above with respect to the parallel movement terms, the asserted patents
expressly state that the invention is not limited to the embodiments. See ’703 patent at 7:40-54;
’809 patent at 11:35-49; ’644 patent at 11:56-12:3; ’793 patent at 11:56-12:3. Although the
patents generally describe anchors as pins that interact with perforations, the ’703 patent—for
example—also states that the “locking mechanism can comprise: a plurality of perforations” and
“at least one anchor adapted to selectively engage at least one of the plurality of perforations.”
’703 patent at 2:2-8.
Yet, the term “anchor” as used in the context of the asserted patents is not boundless. The
claimed anchor must, for example, be adapted to releasably lock a set of arms in place. See ’703
patent at claim l. This language sets limits as to what the claimed anchor can be. It cannot be, for
example, duct tape or a paperweight as argued by the Respondents, but it is also not limited
specifically to a peg or a pin. See RMIB at 42.
In view of the intrinsic evidence and the arguments of the parties, it is determined that the
term anchor should be construed to mean “a mechanical piece that holds an object in place.”
This construction is consistent with the plain and ordinary meaning of “anchor,” and reflects the
specific usage of the term in the patent specifications and claims. Further, this construction does
not improperly limit the claimed anchor to the embodiments.
17
D. “locking mechanism”
The disputed claim tenn “locking mechanism” is recited in claims 1 and ll of the ’703
patent; claims 1, l2, 19, and 22 ofthe ’809 patent; claims 4, 5, 15, 16, 26, 29, 32, and 33 ofthe
’644 patent; and claims 20, 32, 33, 38, 40, and 42 of the ’793 patent. The parties’ proposed
constructions are as follows:
18
Complainant’s
Construction
S
Respondents Construction 	Stai'f’sConstruction
Plain and ordinary meaning:
“locking mechanism”
Not a means-plus-function
claim limitation.
Varidesk does not believe
that this phrase needs
construction, but if the ALJ
detennines that this term
should be construed, the
Staff’s proposed construction
is acceptable to Varidesk.
With regard to ‘703 Patent a structure to prevent
Claim 3; ‘644 Patent Claims 4, movement”
15, 26-28, 29 and 33; ‘793
Patent Claims 20, 38, 40, and
42:
Indefinite
>|= * * * *
With regard to ‘703 Patent
Claim 1; ‘809 Patent Claims l,
ll and 22; ‘644 Patent Claims
1 and 13; ‘793 Patent Claims
32 and 45:
Interpret under 35 U.S.C.
§1l2(6):
Function: releasably locking
the upper platform in the raised
position and in at least one
intermediate position between
the raised position and the
lowered position
Structure: locking mechanism
(40) illustrated in Figures 6, 8,
and 9, including anchor (41),
handle (42), linkage set (43),
hole (111) of lower mounting
bracket (1 1), spring (44),
adapting piece (45), and
perforations (3111) of locking
part (31 1) of main pivot arm
(31).
JC at 6-7.
19
Varidesk and the Staff propose constructions they contend reflect the plain and ordinary
meaning of “locking mechanism,” whereas Respondents split the construction of the term into
two usage categories: (1) instances in which Respondents allege “locking mechanism” is a
means-plus-function term, and (2) instances in which they allege the term is indefinite. See
RMIB at 44.
The term “locking mechanism” consists of ordinary words that are understood from
reading the patent. See e.g., ’703 patent at 1:59-2:10, 3:20-22, 4:9-50, 5:22-49, 5:63-6:3; see also
id. at FIGS. 2, 3, 5, 6, 8, 9, 10. Therefore, it is determined that this claim term does not need
construction insofar as the plain and ordinary meaning of the words should be applied when
perfonning an infringement or validity analysis.5 Further, as discussed in more detail below, it is
determined that the term “locking mechanism,” as used in the asserted patents, is neither in
means-plus-function form nor indefinite.
1. Respondents’ Means-Plus-Function Argument
Ifa claim term does not use the term “means,” there is a rebuttable presumption that it is
not a means-plus-function term. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed.
Cir. 2015) (en banc). To overcome this presumption, it must be shown that “the claim term fails
to ‘recite sufficiently definite structure’ or else recites ‘function without reciting sufficient
structure for performing that function.” Id. (citations omitted).
A review of the claims at issue demonstrates they do not contain the term “means,” and
thus the presumption that they are not means-plus-function terms applies. The next step in the
5The Staff’s proposed construction of “a structure to prevent movement” restates the plain and
ordinary meaning of “locking mechanism” and is not needed to “understand and explain” the
scope of the claims. See Embrex, 216 F.3d at 1347.
20
analysis is to detennine “whether the words of the claim are understood by persons of ordinary
skill in the art to have a sufficiently definite meaning as the name for structure.” Id (citations
omitted).
Each of the claims at issue recites a “locking mechanism comprising . . .” various
elements that expressly describe the structure of the locking mechanism. For example, claim l of
the ’703 patent recites (emphasis added):
l. An adjustable desk platform comprising:
an upper platform defining a first substantially planar work surface, and
a lower surface opposite the work surface;
first and second lower mounting brackets extending below the upper
platform, the first and second lower mounting brackets laterally spaced
apart from one another;
a base located beneath the upper platform, the base defining a bottom
surface without legs that is adapted to sit on an existing desk;
first and second upper mounting brackets extending upward from the
base, the first and second upper mounting brackets laterally spaced apart
from one another; 	_
first and second sets of arms connecting the first and second lower
mounting brackets to the first and second upper mounting brackets,
respectively, the first and second sets of arms adapted to move the upper
platform substantially in parallel with the base between a fully raised
position and a fully lowered position; and
a first locking mechanismassociated with thefirst set of arms, thefirst
locking mechanism comprising:
afirst anchor coupled to the first lower mounting bracket, the first
anchor adapted to releasably lock thefirst set of arms in position with
respect to thefirst lower mounting bracket, and
afirst handle connected to the lower surface of the upper platform, the
first handle user-operable to unlock the first set of arms to permit
movementof the upper platform between the fully raised and the fully
loweredpositions.
21
’703 patent at claim 1. As demonstrated by this exemplary claim, the claims of the asserted
patents are not, as Respondents argue, “drafted in the same fonnat as a traditional means-plus
function limitation,” such that they “merely replace[] the term ‘means’ with ‘mechanism.”’ See
RMIB at 50.
ln addition, the prosecution history of the asserted ’809 patent further demonstrates that
the asserted claims at issue are not drafted in means-plus-function format. In particular, the
examiner rejected the original ’809 claims for failure to recite sufficient structure to define how
the locking mechanism functions. See CMIB Ex. 7 (’809 file history June 24, 2015 Office
Action). The applicant overcame the rejection by adding structure and a description of how the
anchors and handles interact. See CMIB Ex. 8 (’809 file history Sept. 22, 2015 Amendment).
The amended claims were subsequently allowed, which confirms that they recite sufficient
structure and that the limitations are not drafted in means-plus-function form.
Therefore, it has been shown that the structure expressly recited in the asserted claims
would be “understood by persons of ordinary skill in the art to have a sufficiently definite
meaning as the name for structure.” Accordingly, the undersigned finds that claim l of the ’703
patent; claims l, ll, and 22 of the ’809 patent; claims l and 13 of the ’644 patent; and claims 32
and 45 of the ’793 patent are not drafted in means-plus-function format.
2. Respondents’ Indefiniteness Argument
Respondents argue that claim 3 of the ’703 patent; claims 4, 15-16, 26-28, 29-31, and 33
of the ’644 patent; and claims 20, 38, 40 and 42 of the ’793 patent are indefinite. See RMIB at
44; JC at 6. In essence, Respondents’ indefiniteness argument is that the amendment made
during prosecution of the ’809 patent (discussed above with respect to means-plus-function
claiming) did not cure the defects identified by the examiner. See RMIB at 45-46. The examiner,
22
however, determined that the amendment added sufficient structure to comply with 35 U.S.C.
§ 112, 1]2 and allowed the claims.
Taken as a whole, the intrinsic evidence does not support a finding that the term “locking
mechanism” renders the claims invalid as indefinite. “[A] patent is invalid for indefiniteness if its
claims, read in light of the specification delineating the patent, and the prosecution history, fail to
inform, with reasonable certainty, those skilled in the art about the scope of the invention.”
Nautilus, 134 S. Ct. at 2124. Specifically, the claims themselves expressly recite structure
relevant to the claimed “locking mechanism,” and the recited structure was a basis for allowance
of the claims during patent prosecution.
Accordingly, the undersigned finds that claim 3 of the ’703 patent; claims 4, 15-16,
26-28, 29-31, and 33 of the ’644 patent; and claims 20, 38, 40 and 42 of the ’793 patent are not
indefinite. Moreover, as previously stated above, the term “locking mechanism” consists of
ordinary words that are understood from reading the patent such that the claim term does not
need construction, and the plain and ordinary meaning of these words should be applied when
performing an infringement or validity analysis.
E. “releasably lock the [ ] set of arms in position with respect to the [ ] mounting
bracket/upper platform”
Several disputed claim terms relate to releasably locking one component of the desk
“Withrespect to” another component. The following chart sets forth the claim tenns at issue, as
well as the parties’ proposed constructions:
23
Disputed “With Respect to” Terms
(’793 Patent, claim 40)
0 “releasably lock the first set of arms in position with respect to the first lower mounting
bracket” (’703 Patent, claim 1)
0 “releasably lock the second set of arms in position with respect to the second lower
mounting bracket” (’703 Patent, claim ll)
0 “re1easably lock the first set of arms in position with respect to the first mounting
bracket” (’809 Patent, claim 22; ’793 Patent, claim 32)
0 “releasably lock the second set of arms in position with respect to the second mounting
bracket” (’793 Patent, claims 33 and 38)
0 “releasably lock the first set of arms in position with respect to the upper platform”
Complainant’s Construction Respondents’ Construction 	Staffs Construction
Plain and ordinary meaning:
“releasably lock the [ ] set of
arms in position with respect
to the [ ] lower mounting
bracket/upper platfonn”
Varidesk does not believe that
this phrase needs
construction, but if the ALJ
determines that this term
should be construed, the
Staffs proposed construction
is acceptable to Varidesk.
Indefinite
Alternatively “releasably fix
or secure the [first/second] set
of anns to the [first/first
lower/second] mounting
bracket”
“fixes or secures the
[first/second] set of arms to
the [first/second] mounting
bracket”
“releasably lock the
[first/second] set of arms in
position relative to the
[first/first lower/second]
mounting bracket”
“locks the [first/second] set
of arms in position relative
to the [first/second]
mounting bracket”
JC at 8.
The constructions proposed by Varidesk and the Staff are similar in that they encompass
the idea of fixing a set of anns in a position relative to a second component, i.e., the mounting
bracket. Respondents’ proposal, on the other hand, would require that the set of arms be fixed to
6
the mounting bracket. Respondents’ construction is not supported by the intrinsic evidence.
6 Respondents also allege that these claim terms are indefinite, but do not address this argument
in either their initial brief or their reply brief. See JC at 8; RMIB at 54-57; RMRB at 37-43. In
24
Indeed, the claims themselves require only that the arms be locked “with respect to the
. . . mounting bracket.” See, e.g., ’703 patent at claim l. Nothing in this language requires that
the arms be connected to the mounting bracket itself. Moreover, although the specification
teaches embodiments showing a connection between the arms and the motmting brackets, the
specification does not exclude comiecting the arms to an intemiediate structure.
The prosecution history also does not require that the arms be secured or cormected to the
mounting bracket. Respondents argue that arguments made during prosecution define “with
respect to” as “connected or secured,” but this argument is not persuasive. See RMIB at 57.
Specifically, during prosecution of the ’703 patent the examiner rejected claim l over the prior
art Peter patent and stated:
The patent to Peter teaches position, a locking mechanism associated with
the set of pivot arms, the locking mechanism comprising a plurality of
perforations (44) located in the primary pivot arm or the secondary pivot
ann, a locking set (48, 49) fixed with respect to the upper platfonn or the
lower platform, the locking set including at least one anchor adapted to
selectively engage at least one of the plurality of perforations, and a handle
(54) connected to the anchor by a linkage, the handle adapted to selectively
move the anchor into engagement with at least one of the plurality of
perforations.
RMIB Ex. 8 (’703 file history) at VDSK0000093. The inventor responded to this rejection by
amending the claim and arguing:
Second, Peter does not disclose or render obvious “a first anchor coupled to
the first lower mounting bracket, the first anchor adapted to releasably lock
the first set of arms in position with respect to the first lower mounting
bracket,” as recited by claim 1. The Office Action apparently aligns the
locking rod 48 or 49 of Peter’s FIG. 5 with the claimed “anchor.” However,
the Office Action acknowledges that Peter fails to disclose the claimed
“lower mounting bracket.” (See Action at pg. 5.) Accordingly, Peter cannot
disclose or suggest that the locking rod 48 or 49 is “coupled to [a] first lower
any event, the claims are not indefinite because they do not “fail to infonn, with reasonable
certainty, those skilled in the art about the scope of the invention.” Nautilus, 134 S. Ct. at 2124.
25
mounting bracket,” as would be required by claim 1. Therefore, Peter does
not disclose or render obvious “a first anchor coupled to the first lower
mounting bracket, the first anchor adapted to releasably lock the first set of
arms in position with request to the first lower mounting bracket,” as recited
‘ by claim 1. 	A
Id. at VDSKO000l35. 	A
Respondents argue that this Response proves that the inventor equated “with respect to”
with being attached. RMIB at 57. Yet, a review of the Response demonstrates that this argument
is flawed. The Response discusses a longer version of the claim limitation at issue, i.e., “a first
anchor coupled to the first lower mounting bracket, the first anchor adapted to releasably lock
thefirst set ofarms inposition with respect to thefirst lower mounting bracket.” Only the second
portion of this phrase (identified with italics above) is implicated in the claim construction
dispute for this investigation.
In the Office Action, the examiner equated locking rods 48 and 49 of Peter with the
anchor recited in the pending patent claims. As set forth in the then-pending claim 1, the anchor
is “coupled to thelfirst lower mounting bracket.” The Response to the Office Action takes the
position that, because Peter does not disclose the lower mounting bracket, it cannot disclose a
“locking rod 48 or 49 [anchor] is ‘coupled to [a] first lower mounting bracket,’ as would be
required by claim 1.” Hence, the Response is only discussing the first part of the limitation, i.e.,
because there is no anchor, there can be no anchor coupled to the lower mounting bracket as
claimed. This portion of the Response has nothing to do with whether or not the arm is connected
to the mounting bracket, which is the portion of the claim that is at issue in this investigation.
In sum, there is nothing in the claims, specification, or prosecution history requiring that
the arm be CO1'1l'1€Ci6d	to the mounting bracket. Although the arm could be thus comected, the
claim is also broad enough, for example, to allow the arm to be cormected to an intermediate
26
structure. Moreover, the claim terms at issue here consist of ordinary words that are understood
from reading the asserted patent. Therefore, it is detennined that these related claim terms do not
need construction insofar as the plain and ordinary meaning of the words should be applied when
performing an infringement or validity analysis.7
F. “member”
The disputed claim term “member” is recited in claims 32, 37, 38, 40, and 42 of the ’793
patent. Following the completion of the Markman hearing, Varidesk notified the undersigned
that construction of this term is no longer necessary, inasmuch as Varidesk does not assert any of
the above claims against Dakota. See Notice Regarding Claim Construction (EDIS Doc. No.
669341) (Mar. 7, 2019).
G. “lateral end”
Several disputed claim temis relate to a “lateral end” of the adjustable desk. The
following chart sets forth the claim terms at issue, as well as the parties’ proposed constructions:
Disputed “Lateral End” Terms
I “the first handle is located between the first set of arms and the first lateral end of the
upper platform” (’793 Patent, claims 39, 41, and 43)
0 “the second handle is located between the second set of arms and the second lateral end
of the upper platform” (’793 Patent, claims 39 and 43)
v “the first handle is located between the first set of arms and a first edge of the upper
platform” (’793 Patent, claim 45)
0 “the second handle is located between the second set of arms and a second edge of the
upper platfonn” (’793 Patent, claim 46)
7The Staff proposes a construction that replaces the claim language “with respect to” with
“relative to,” but does not cite to evidence explaining why such a substitution is needed to
“understand and explain” the scope of the claims. See SMIB at 26-30; Embrex, 216 F.3d at 1347.
27
Complainant’s Construction Respondents’ Construction 	Staff’s Construction
Plain and ordinary meaning: Indefinite 	Plain and ordinary meaning:
“the [] handle is located 	“the first handle is located
between the [ ] set of arms 	between the first set of arms
and the [ ] lateral end of the 	and the first side end of the
upper platform” 	upper platform”
Plain and ordinary meaning:
“the [ ] handle is located
between the [ ] set of arms
and a [ ] edge of the upper
platform”
Varidesk does not believe that
this phrase needs
construction, but if the ALJ
detennines that this term
should be construed, the
Staff‘s proposed construction
is acceptable to Varidesk.
JC at 10.
The primary dispute between the parties relates to whether or not these terms are
indefinite. In particular, Varidesk and the Staff argue that the terms should take their plain and
ordinary meaning, whereas Respondents argue that “first lateral edge” and “first lateral end” are
indefinite. See, e.g., RMIB at 62. Resp0ndent’s indefiniteness argument is not persuasive.
A review of the claim language and specification (including drawings) demonstrate what
the patentee means by the term “first lateral end.” For instance, dependent claim 39 provides:
The adjustable desk platform of claim 38, wherein:
the upper platform includes first and second lateral ends;
the first handle is located between the first set of arms and the first
lateral end of the upper platfonn; and
28
the second handle is located between the second set of arms and the
second lateral end of the upper platform.
’793 patent at claim 39. This claim first identifies two lateral ends. It then claims, in part, two
handles: (1) the first located between the first set of arms and the first lateral end and (2) the
second located between the second set of arms and the second lateral end. Any confusion about
the arrangement of these handles is dispelled by the description in the specification and the
accompanying drawings. V
In the specification, the arm sets are identified as 30, and the handles are identified as 42.
’793 patent at 4:23-26 (arms), 5:40-41 (handles). Figure 2 (reproduced below) shows two sets of
handles (in green). The first set of handles is between the first arm (red) and the first lateral edge,
and the second set of handles is between the second arm (partially obscured due to the
perspective of the drawing) and the second lateral edge:
29
4 -~ ‘- 	10
4 //‘Q 	/0 	H	u
/'
‘Ii 	' 	l 	70
2 	'
FIG. 2
’793 patent at Fig. 2 (annotated).
Respondents’ indefiniteness argument is, in essence, that there is no way to tell which
end is the claimed “first lateral end.” See RMIB at 62. Yet, Figure 2 of the patent and the
accompanying text of the specification describes the claimed arrangement the arms and handles,
making clear which lateral edge is claimed. Accordingly, it is found that the term is not
indefinite. See Nautilus, 134 S. Ct. at 2124 (“[A] patent is invalid for indefiniteness if its claims,
read in light of the specification delineating the patent, and the prosecution history, fail to
infonn, with reasonable certainty, those skilled in the art about the scope of the invention”).
30
Further, the claim terms at issue here consist of ordinary words that are understood from
reading the asserted patent and referencing the figures. Therefore, it is detennined that these
related claim terms do not need construction insofar as the plain and ordinary meaning of the
words should be applied when performing an infringement or validity analysis.
SO ORDERED.
rm %///Charles E. Bullock 7
Chief Administrative Law Judge
31
CERTAIN HEIGHT-ADJU STABLE DESK PLATFORMS
AND COMPONENTS THEREOF
INV. NO. 337-TA-1125
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order N0. 27 has been served by hand upon
the Commission Investigative Attorney, Andrew Beverina, Esq. and the following parties as
indicated, on AER 0 1 Z019 	.
Lisa R. Barton, Secretary
U.S. Intemational Trade Commission
500 E Street SW, Room ll2A
Washington, D.C. 20436
FOR COMPLAINANT VARIDESK LLC
Adam R. Hess, Esq. 	Via Hand Delivery
VENABLE LLP 	Express Delivery
600 Massachusetts Avenue, NW 	Via First Class Mail
Washington, DC 20001 	Other:
FOR RESPONDENT ALBEIT LLC
1351 Broadway Street 	( ) Via Hand Delivery
San Francisco, CA 94109 	( ) Express Delivery
(»/Y Via First Class Mail
( )Other:	i
FOR RESPONDENT ATC SUPPLY LLC
12604 Canterbury Drive 	( ) Via Hand Delivery
Plainfield, IL 60585-3000 	() Express Delivery	( ) Via First Class Mail
( ) Other:
CERTAIN HEIGHT-ADJUSTABLE DESK PLATFORMS
AND COMPONENTS THEREOF
INV. NO. 337 TA 1125
FOR RESPONDENT SHENZHEN ATC NE TWO RK SCIENOLOGY CO., LTD
Room 1902, Zian Business Building
The Xinan Second Road
Baoan District
Shenzhen, 518000 Guangdong
China
Via Hand Delivery
Express Delivery
Via First Class Mail
Other:
FOR RESPONDENT S.P. RICHARDS CO. DBA LO RELL
Benjamin T. Horton, Esq.
MARSHALL, GERSTEIN & BORUN LLP
6300 Willis Tower, 233 S. Wacker Drive
Chicago, IL 60606
Via Hand Delivery
Express Delivery
Via First Class Mail
Other:
FOR RESPONDENT DAKOTA TRADING , INC.
Ezra Sutton, Esq.
EZRA SUTTON, P.A.
900 Route 9 North, Suite 201
Woodbridge, NJ 07095
( ) Via Hand Delivery
( ) Express Delivery
(\/{Via First Class Mail
( ) Other:
FOR RESPONDENT AMAZON IMPORT INC.
9910 Baldwin Place
El Monte, CA 91731
( ) Via Hand Delivery
( Express Delivery
(X Via First ClassMail
( ) Other:
FOR RESPONDENT NINGBO GYL INTE RNAT IONAL TRADING CO., LTD
228 Mingbin Road
Luoto Area, Zhenhai
Ningbo, 315202 Zhejiang
China
Via Hand Delivery
Express Delivery
Via First Class Mail
Other:
CERTAIN HEIGHT-ADJUSTABLE DESK PLATFORMS
AND COMPONENTS THEREOF
'INV. NO. 337-TA-1125
FOR RESPONDENT JV PRODUCTS INC.
1825 Houret Court
Milpitas, CA 95035
( ) Via Hand Delivery
( ) Express Delivery
(./I Via First Class Mail
( ) Other: __________
FOR RESPONDENT VANSON DISTRIBUTING, IN C.
1825 Houret Court
Milpitas, CA 95035
Via Hand Delivery
Express Delivery
Via First Class Mail
Other:
FOR RESPONDENT VANSON GROUP, INC.
1825 Houret Court
Milpitas, CA 95035
Via Hand Delivery
Express Delivery
Via First Class Mail
Other:
FOR RESPONDENT HAINING ORIZEAL IMPORT AND EXPORT CO., LTD.
4th Floor, Building B, Jinhui Plaza
N0. 486 South Hai Chang Road
Haining, 314400 Zhejiang
China
( ) Via Hand Delivery
(f ExpressDelivery( ) Via First Class Mail
( ) Other:
FOR RESPONDENTS QIDONG VISION MOUNTS
CKNAPP SALES, INC. DBA VIVO; NANTONG JON ERGONOMIC OFFICE CO.,
LTD.; HANGZHOU GRANDIX ELECTRONICS CO., LTD.; BEST CHOICE
PRODUCTS; and HANGZHOU KEXIANG KEJI YOUXIANGONGSI
MANUFACTURING CO., LTD.;
Mark G. Davis, Esq.
GOODWIN PROCTER LLP
901 New York Avenue, NW
Washington, DC 20001
Via Hand Delivery
Express Delivery
Via First Class Mail
Other:
CERTAIN HEIGHT-ADJUSTABLE DESK PLATFORMS
AND COMPONENTS THEREOF
INV. NO. 337-TA-1125
FOR RESPONDENT SMUGDESK, LLC
14839 Proctor Avenue, Suite D
La Puente, CA 91746
( ) Via Hand Delivery
( ) Express Delivery
(-/Y Via First Class Mail
( ) Other:
FOR RESPONDENT WUHU XINGDIAN INDUST RIAL c0., LTD
No. 168 Xici 5th Road
Mechanical Industrial Zone
Wuhu, 241 100 Anhui
China
( ) Via Hand Delivery
( ) Express Delivery
(~/) Via First Class Mail
( ) Other:

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