[Federal Register: March 18, 2005 (Volume 70, Number 52)]
[Notices]
[Page 13206-13208]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr05-93]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-514]
In the Matter of Certain Plastic Food Containers; Notice of
Commission Decision To Review an Initial Determination Finding a
Violation of Section 337 and That the Domestic Industry Requirement is
Met; Schedule for Written Submissions
AGENCY: U.S. 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 an initial determination (``ID'')
(Order No. 8) issued by the presiding administrative law judge
(``ALJ'') finding a violation of section 337 and that the domestic
industry requirement has been met in the above-captioned investigation.
The review is for the limited purpose of examining possible formatting
and typographical errors contained on one page of the ID.
FOR FURTHER INFORMATION CONTACT: Michael Diehl, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone 205-3095. Copies of all
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 be obtained by accessing its Internet server (http://www.usitc.gov
). The public record for this investigation may be viewed
[[Page 13207]]
edis.usitc.gov. 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: By a notice published on June 22, 2004, the
Commission instituted an investigation into alleged violations of
section 337 in the importation and sale of certain plastic food
containers by reason of infringement of certain claims of U.S. Patent
No. 6,056,138; of U.S. Patent No. 6,196,404; and of U.S. Design Patent
No. D 415,420. 69 FR 34691 (June 22, 2004).
On August 19, 2004, complainant Newspring Industrial Corp.
(Newspring) moved for an order directing that respondents Taizhou
Huasen Household Necessities, Co., Ltd. (``Taizhou'') and Jiangsu
Sainty Corporation, Ltd. (``Jiangsu'') show cause as to why they should
not be found in default for failure to respond to the complaint and
notice of investigation. Complainant also asked for an order finding
respondents in default if they failed to show cause. On August 30,
2004, the ALJ issued Order No. 5, directing respondents to show cause
no later than September 17, 2004, why they should not be held in
default. Neither respondent responded to the order.
On September 9, 2004, before the ALJ ruled on the motions for
default, Newspring filed motions for summary determinations that there
has been a violation of section 337 and that a domestic industry has
been established with respect to each of the asserted patents.
Newspring sought a recommendation for the issuance of a general
exclusion order. On September 23, 2004, the Investigative Attorney
(``IA'') filed a response in support of the motions, although he
contended that a genuine issue of material fact exists as to whether
certain accused products infringe two of the patents in issue.
On October 12, 2004, the ALJ issued an Initial Determination (ID)
(Order No. 7), finding the respondents in default. No party petitioned
for review of the ID. The Commission subsequently issued a notice of
determination not to review the ID.
On February 10, 2005, the ALJ issued an ID (Order No. 8), granting
Newspring's motions for summary determinations in part. He determined
that a domestic industry had been established with respect to each of
the asserted patents, and that respondent Jiangsu had violated section
337 with respect to each asserted patent as well. He determined that
respondent Taizhou had violated section 337 with respect to the '420
patent, but denied the motion as to Taizhou with respect to the '138
and '404 patents. No party petitioned for review of the ID. The ALJ
also recommended the issuance of a general exclusion order. He also
recommended that the bond permitting temporary importation during the
Presidential review period be set at 100 percent of the value of the
infringing imported product.
The Commission has determined to review the subject ID (Order No.
8). The scope of the review is limited to possible formatting and
typographic errors on page 15 of the ID. The Commission notes that the
Complainant, on September 28, 2004, filed a corrected version of what
is apparently the figure that appears on page 15 of the ID. The
Commission requests comments from the parties regarding whether the
widths labeled ``A'' and ``B'' in the figure in the ID correspond to
the widths described in the text of the ID, and whether the indicated
widths are incorrectly placed in the figure. Comments should also
address what action, if any, the Commission should take if it finds the
labeling incorrect and whether all references to ``Figure 1'' on page
15 of the ID should be changed to ``Figure 5.''
In connection with the final disposition of this investigation, the
Commission may issue an order that could result in the exclusion of the
subject articles from entry into the United States. 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, it 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 In the Matter of Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December
1994) (Commission Opinion).
When 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 in this investigation include the
effect that an exclusion order 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 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 are requested
to file written submissions on the issues under review. The parties to
the investigation, interested government agencies, and any other
interested parties are encouraged to file written submissions on the
issues of remedy, the public interest, and bonding. Such submissions
should address the February 10, 2005, recommended determination by the
ALJ on remedy and bonding. Complainant and the Commission's
investigative attorney are also requested to submit proposed orders for
the Commission's consideration. Complainant is further requested to
state the expiration dates of the patents at issue. Main written
submissions and proposed orders must be filed no later than close of
business on March 29, 2005. Reply submissions, if any, must be filed no
later than the close of business on April 5, 2005. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission.
Persons filing written submissions must file with the Office of the
Secretary the original document 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 that the Commission should grant such
treatment. See section 201.6 of the Commission's Rules of Practice and
Procedure, 19 CFR 201.6. Documents for which confidential treatment by
the Commission is sought will be treated accordingly. All
nonconfidential written submissions 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 210.16, 210.42, 210.44
of the
[[Page 13208]]
Commission's Rules of Practice and Procedure, 19 CFR 210.16, 210.42,
210.44.
Issued: March 14, 2005.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-5389 Filed 3-17-05; 8:45 am]
BILLING CODE 7020-02-P