[Federal Register: April 19, 2006 (Volume 71, Number 75)]
[Notices]
[Page 20131-20132]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ap06-127]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-533]
In the Matter of Certain Rubber Antidegradants, Components
Thereof, and Products Containing Same; Notice of Commission
Determination To Review a Final Initial Determination; Schedule for
Filing Written Submissions on the 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 in its entirety the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on February 17, 2006, in the above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Wayne Herrington, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 205-3090. Copies of the
ALJ's 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 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: The Commission instituted this section 337
investigation on March 29, 2005, based on a complaint filed by Flexsys
America LP. 70 FR 15885 (March 29, 2005). The complaint, as
supplemented, alleged violations of section 337 of the Tariff Act of
1930 in the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain rubber antidegradants, components thereof, and products
containing same that infringe claims 30 and 61 of U.S. Patent No.
5,117,063 (``the '063 patent''), claims 7 and 11 of U.S. Patent No.
5,608,111 (``the '111 patent''), and claims 1, 32, and 40 of U.S.
Patent No. 6,140,538 (``the '538 patent''). The complaint and notice of
investigation named five respondents. The investigation was
subsequently terminated as to two respondents and as to the '538
patent.
On February 17, 2006, the ALJ issued his final ID finding a
violation of section 337 of the Tariff Act of 1930, as amended (19
U.S.C. 1337), by respondents Sinorgchem Co., Shandong, and Sovereign
Chemical Company, but finding no violation of section 337 by respondent
Korea Kumho Petrochemical Co., Ltd. The ALJ recommended that the
Commission issue limited exclusion orders, but did not recommend that
any bond be imposed for importations during the Presidential review
period. All parties petitioned for review of various parts of the final
ID.
Having examined the record in this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in its entirety.
The Commission's review includes the issue of whether the ALJ properly
determined that the issue of infringement by the P1 and P2 processes of
Korea Kumho Petrochemical Co., Ltd. was not before him, but that review
is only for the purpose of making a correction to the final ID, i.e.,
to substitute ``Motion No. 533-61'' for ``Motion No. 533-57'' on page
96 of the final ID. The Commission has otherwise concluded that the ALJ
was correct in his determination on this issue.
On review, the Commission requests briefing based on the
evidentiary record. While the Commission has determined to review the
final ID in its entirety, it is particularly interested in briefing on
the issues of claim construction and indefiniteness, especially with
respect to the term ``controlled amount of protic material,'' which
appears in all the asserted claims. In addressing the question of claim
construction, each party should specifically identify those portions of
the claim language, specification, and prosecution history (and other
evidence, if appropriate) which support the construction it advocates.
The Commission is also interested in receiving answers to the following
questions:
1. With respect to the ID's construction of the term ``controlled
amount of protic material,'' what is the basis for including ``the
desired selectivity,'' given that col. 4, ll. 48-50 ('063 patent)
states: ``A `controlled amount' of protic material is an amount up to
that which inhibits the reaction of aniline with nitrobenzene * * *,''
a statement which does not contain the term ``selectivity''?
2. Given that the '111 patent is based on a continuation-in-part
application, what is the legal basis for using matter in the claims and
specification of that patent not common to the disclosure of the '063
patent to construe the claims of the '063 patent? What is the legal
basis for using the prosecution history of the '111 patent to construe
the claims of the '063 patent?
3. Referring to the ALJ's definition of ``controlled amount of
protic material'' in the ID at 78-79, what is the meaning of the terms
``inhibited'' and ``desired selectivity''? How are these terms applied
to determine infringement by the accused processes? With respect to the
claim construction of ``controlled amount of protic material'' adopted
in the ID, what is the evidence that the claims, specification, and
prosecution history would provide a person of ordinary skill in the art
with knowledge of what constitutes ``inhibition'' and the ``desired
selectivity''?
4. With respect to the licensing issues raised by Korea Kumho
Petrochemical Co., Ltd., which are stated to be subject to Korean law,
state the applicable Korean law and discuss how it applies.
5. With respect to the estoppel issue raised by Korea Kumho
Petrochemical Co., Ltd., state what law (Korean, U.S., or other)
applies and how it applies.
[[Page 20132]]
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
respondents 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 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 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 submissions
should be concise and thoroughly referenced to the record in this
investigation. 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 17, 2006,
recommended determination by the ALJ on remedy and bonding. Complainant
and the Commission investigative attorney are also requested to submit
proposed remedial orders for the Commission's consideration. The
written submissions and proposed remedial orders must be filed no later
than close of business on April 24, 2006. Reply submissions must be
filed no later than the close of business on May 1, 2006. 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
(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 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.
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 Sec. 210.42-.46 of the Commission's Rules of Practice and Procedure
(19 CFR 210.42-.46).
By order of the Commission.
Issued: April 13, 2006.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E6-5884 Filed 4-18-06; 8:45 am]
BILLING CODE 7020-02-P