[Federal Register: April 5, 2007 (Volume 72, Number 65)]
[Notices]
[Page 16818-16819]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap07-121]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-551]
In the Matter of Certain Laser Bar Code Scanners and Scan
Engines, Components Thereof, and Products Containing Same; Notice of
Commission Determination To Review a Final Determination on Violation
of Section 337; Schedule for Briefing on the Issues on Review and on
Remedy, Public Interest, and Bonding; Denial of Motion for Stay of
Sanctions Order
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 in part the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on November 20, 2006, regarding whether there is a violation
of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-
captioned investigation. The Commission has also determined to deny
respondents' motion for stay of the ALJ's sanctions order.
FOR FURTHER INFORMATION CONTACT: Paul M. Bartkowski, Esq., Office of
the General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-5432. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street, SW., Washington, DC
20436, telephone (202) 205-2000. General information concerning the
Commission may also be obtained by accessing its Internet server at
http://www.usitc.gov The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://.
edis.usitc.gov. Hearing-impaired persons are advised that information
on this matter can be obtained by contacting the Commission's TDD
terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: This investigation was instituted on October
26, 2005, based on a complaint filed by Symbol Technologies Inc.
(``Symbol'') of Holtsville, New York. The complaint, as amended,
alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C.
1337) in the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain laser bar code scanners or scan engines, components thereof, or
products containing the same, by reason of infringement of various
claims of United States Patent Nos. 5,457,308 (``the `308 patent'');
5,545,889 (``the `889 patent''); 6,220,514 (``the `514 patent'');
5,262,627 (``the `627 patent''); and 5,917,173 (``the `173 patent'').
The complaint named two respondents: Metro Technologies Co., Ltd. of
Suzhou, China; and Metrologic Instruments, Inc. of Blackwood, New
Jersey (collectively, ``Metrologic'').
On January 29, 2007, the ALJ issued an ID finding a violation of
Section 337 in the importation of certain laser bar code scanners and
scan engines, components thereof, and products containing the same, in
connection with certain asserted claims. The ID also issued monetary
sanctions against Respondents for discovery abuses. Complainant,
Respondents, and the Commission investigative attorney (IA) each filed
petitions for review on February 8, 2007. They each filed responses to
each other's petitions on February 16, 2007.
Meanwhile, on February 8, 2007, Metrologic filed a motion for stay
of the ALJ's sanctions order. The IA and Symbol filed oppositions to
the motion on February 20, 2007. Upon consideration of the parties'
filings, the Commission has determined to deny Metrologic's motion for
stay.
On February 21, 2007, the Commission extended the deadline for
determining whether to review the subject ID by fifteen (15) days, to
March 30, 2007.
Having examined the record of this investigation, including the
ALJ's final ID and the submissions of the parties, the Commission has
determined to review the final ID in part. Specifically, the Commission
has determined to review: (1) The construction of ``single, unitary,
flexural component'' in the `173 patent, and related issues of
infringement, domestic industry, and validity; (2) the construction of
``oscillatory support means'' in the `627 patent, and related issues of
infringement, domestic industry, and validity; (3) the construction of
claims containing the so-called ``central area'' limitations in the
`889 patent, and related issues of infringement, domestic industry, and
validity; (4) the construction of the ``scan fragment'' limitation in
the `308 patent; and (5) the construction of the term ``plurality'' in
the `308 patent. The Commission requests briefing based on the
evidentiary record on certain of the issues on review. The Commission
is particularly interested in responses to the following questions:
Regarding the `173 patent:
(1) What is the effect of Symbol's statement in the prosecution
history that ``[c]laim 70 [issued claim 17] also contains the feature
of allowable claim 58'' on a proper claim construction?
(2) If Symbol's statement limited the scope of the claim, what is
the effect on claim construction, infringement, domestic industry, and
validity issues as they relate to the `173 patent?
(3) If Symbol's statement limits the scope of the claim by
providing that the component have ``spring portions integral with each
other,'' what would be the effect, if any, on the analysis? In other
words, if a flexural component is ``single,'' and ``unitary,'' does it
necessarily have ``spring portions integral with each other''?
Regarding the `627 patent:
(1) How should the modifier ``oscillatory'' be construed in the
limitation ``oscillatory support means''?
(2) How does the construction of the word ``oscillatory'' affect
infringement, domestic industry, and validity as those issues relate to
the `627 patent?
Regarding the `889 patent:
(1) What effect does Symbol's statements during prosecution history
such that the smaller mirror is ``centrally positioned'' with respect
to the larger mirror have on claim construction?
(2) If such statements limit claim scope, what effect does that
limitation have on claim construction,
[[Page 16819]]
infringement, domestic industry, and validity as those issues relate to
the `889 patent?
Furthermore, in connection with the final disposition of this
investigation, the Commission may (1) Issue an order that could result
in the exclusion of the subject articles from entry into the United
States, and/or (2) issue one or more cease and desist orders that could
result in the respondent being required to cease and desist from
engaging in unfair acts in the importation and sale of such articles.
Accordingly, the Commission is interested in receiving written
submissions that address the form of remedy, if any, that should be
ordered. 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 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).
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 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 of the Treasury. The Commission is therefore interested in
receiving submissions concerning the amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues under review. The submissions
should be concise and thoroughly referenced to the record in this
investigation, including references to exhibits and testimony.
Additionally, parties to the investigation, interested government
agencies, and any other interested parties are encouraged to file
written submissions on the issues of remedy, the public interest, and
bonding. Such submissions should address the recommended determination
by the ALJ on remedy and bonding. Complainants and the Commission
investigative attorney are also requested to submit proposed remedial
orders for the Commission's consideration. Complainants are also
requested to state the dates that the patents expire and the HTSUS
numbers under which the accused products are imported. The written
submissions and proposed remedial orders must be filed no later than
close of business on April 9, 2007. Reply submissions must be filed no
later than the close of business on April 16, 2007. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission.
Persons filing written submissions must file the original document
and 12 true copies thereof on or before the deadlines stated above with
the Office of the Secretary. Any person desiring to submit a document
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 210.6. 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.
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 section 210.42-46 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42-46).
Issued: March 30, 2007.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E7-6393 Filed 4-4-07; 8:45 am]
BILLING CODE 7020-02-P