[Federal Register: December 16, 2002 (Volume 67, Number 241)]
[Notices]
[Page 77076-77078]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de02-61]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-460]
Certain Sortation Systems, Parts Thereof, and Products Containing
Same; Commission Decision To Review Portions of a Final Initial
Determination Finding a Violation of Section 337; Schedule for Filing
Written Submissions on the Violation Issues Under Review and on Remedy,
the Public Interest, and Bonding
AGENCY: International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review portions of the final initial
determination issued by the presiding administrative law judge (ALJ) on
October 22, 2002, finding a violation of section 337 of the Tariff Act
of 1930, in the above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Michael K. Haldenstein, Esq., Office
of the General Counsel, U.S. International Trade Commission, telephone
202-205-3041. Copies of the public version of the ID and all other
nonconfidential 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
(http://www.usitc.gov). The public record for this investigation may
also be viewed on the Commission's electronic docket (EDIS-ON-LINE) at
http://dockets.usitc.gov/
[[Page 77077]]
eol.public. Hearing-impaired persons are advised that information on
the matter can be obtained by contacting the Commission's TDD terminal
on 202-205-1810.
SUPPLEMENTARY INFORMATION: This patent-based section 337 investigation
is before the Commission for a determination of whether to review, in
whole or in part, the final initial determination (``ID'') of the
presiding administrative law judge (``ALJ''), in which he found a
violation of section 337 of the Tariff Act of 1930, as amended.
The Commission voted to institute this investigation on July 19,
2001, based upon a complaint filed on June 25, 2001, by Rapistan
Systems Advertising Corp. and Siemens Dematic Corp., both of Grand
Rapids, Michigan. 66 FR 38741 (July 25, 2001). Named as respondents
were Vanderlande Industries Nederland BV of the Netherlands, and
Vanderlande Industries of Atlanta, Georgia (collectively referred to as
``Vanderlande''). Vanderlande Industries Nederland BV of the
Netherlands designs and manufactures the accused sortation systems, and
Vanderlande Industries of Atlanta imports, sells, and installs the
accused sortation systems.
Complainants alleged that respondents had violated section 337 by
importing into the United States, selling for importation, and selling
within the United States after importation certain sortation systems,
or components thereof, covered by independent claims 1, 13, 23, 30, and
42 and dependent claims 2, 3, 4, 8, 9, 17, 18, 20, 22, 24, 27, 29, 33,
35, 36, 37, 39, 43, 45, 46, 47, and 49 of U.S. Patent No. 5,127, 510
(``the `510 patent''), owned by Rapistan Systems and exclusively
licensed to Siemens Dematic. On April 5, 2002, complainants filed an
unopposed motion asking for the termination of the investigation with
respect to claims 2, 3, 8, 9, 18, 24, 36, 37, 29, 46, 47, and 49. On
May 16, 2002, the ALJ granted the motion in an ID (Order No. 32) and
the Commission determined not to review that ID. The claims of the `510
patent at issue are therefore claims 1, 4, 13, 17, 20, 22, 23, 27, 29,
30, 33, 35, 42, 43, and 45. The complaint further alleged that an
industry in the United States exists, as required by subsection (a)(2)
of section 337.
An evidentiary hearing was held on June 4-17, 2002. On October 22,
2002, the ALJ issued his final ID, in which he determined that
respondents' sortation systems, and parts thereof, infringe claims 1
and 4 of the `510 patent, and that the `510 patent is valid and
enforceable. Based upon these findings, he found a violation of section
337.
The ALJ recommended issuance of a limited exclusion order barring
importation of the accused Mark 2 Posisorter and its parts and
components. He recommended excluding spare parts destined for UPS's Hub
2000 facility in Louisville, Kentucky from the scope of the limited
exclusion order. He also recommended a bond during the Presidential
review period in the amount of 100 percent of the entered value of the
infringing products.
On November 4, 2002, Vanderlande and the IA petitioned for review
of the ALJ's final ID, and Rapistan submitted a contingent petition for
review asking that the Commission review certain issues if it decided
to review the ID. On November 12, 2002, Vanderlande, Rapistan, and the
IA filed reply submissions.
Having reviewed the record in this investigation, including the
parties' written submissions, the Commission has determined to review
the ID on the following issues: (1) The ID's construction of the
element ``contiguous, generally planar surfaces sloping downward from
an upper extent of said diverting surface laterally inward and
longitudinally forward or rearward'' in independent claim 30, and
dependent claims 33, and 35, and the infringement findings related to
this claim element; and (2) the ID's findings regarding the elements of
equitable estoppel.
In connection with final disposition of this investigation, the
Commission may issue (1) an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
cease and desist orders that could result in Vanderlande being required
to cease and desist from engaging in unfair acts in the importation and
sale of such articles. Accordingly, the Commission is interested in
receiving written submissions that address the form of remedy, if any,
that should be ordered. 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 are likely to do so. For background
information, see the Commission Opinion, Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Publication
2843 (Dec. 1994).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) The
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the President has 60
days to approve or disapprove the Commission's action. During this
period, the subject articles would be entitled to enter the United
States under a bond, in an amount to be determined by the Commission
and prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed.
Written Submissions: The parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the violation issues under review, and on
the issues of remedy, the public interest, and bonding. Such
submissions should address the recommended determination by the ALJ on
remedy and bonding and the ALJ's conclusions concerning the two
violation issues. Complainant and the IA are also requested to submit
proposed remedial orders for the Commission's consideration. Written
submissions and proposed remedial orders must be filed no later than
the close of business on December 23, 2002. Reply submissions must be
filed no later than the close of business on December 30, 2002. No
further submissions will be permitted unless otherwise ordered by the
Commission.
Persons filing written submissions must file with the Office of the
Secretary the original and 14 true copies thereof on or before the
deadlines stated above. Any person desiring to submit a document (or
portion thereof) to the Commission in confidence must request
confidential treatment unless the information has already been granted
such treatment during the proceedings. All such requests should be
directed to the Secretary of the Commission and must include a full
statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
is granted by the Commission will be treated accordingly. All
nonconfidential written submissions
[[Page 77078]]
will be available for public inspection at the Office of the Secretary.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, 19 U.S.C. 1337, and sections 210.42, 210.43,
210.45, and 210.50 of the Commission's rules of practice and procedure,
19 CFR 210.42, 210.43, 210.45, and 210.50.
Issued: December 11, 2002.
By order of the Commission.
Marilyn R. Abbott,
Secretary.
[FR Doc. 02-31621 Filed 12-13-02; 8:45 am]
BILLING CODE 9020-02-P