[Federal Register: May 15, 2002 (Volume 67, Number 94)]
[Notices]
[Page 34728-34729]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my02-97]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-449]
Certain Abrasive Products Made Using a Process for Powder
Preforms, and Products Containing Same; Notice of Issuance of Limited
Exclusion Order and Cease and Desist Order
AGENCY: International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has issued a limited exclusion order and a cease and desist
order 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 limited exclusion order, the cease and
desist order, the public version of the Commission's opinion, 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). Hearing-
impaired persons are advised that information on the matter can be
obtained by contacting the Commission's TDD terminal on 202-205-1810.
The public record for this investigation may be viewed on the
Commission's electronic docket (EDIS-ON-LINE) at http://
dockets.usitc.gov/eol/public.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on February 5, 2001, based upon a complaint filed on January 5, 2001,
by Minnesota Mining & Manufacturing Co. (``3M'') of St. Paul, Minnesota
and Ultimate Abrasive Systems, LLC (``UAS'') of Atlanta, Georgia. 66 FR
9720 (Feb. 9, 2001). Their complaint named Kinik Company (``Kinik'') of
Taipei, Taiwan and Kinik Corporation (``Kinik Corp.'') of Anaheim,
California as respondents.
Complainants alleged that respondents had violated section 337 of
the Tariff Act of 1930 by importing into the United States, selling for
importation, and selling within the United States after importation
certain abrasive products that are made using a
[[Page 34729]]
process for making powder preforms that is covered by claims 1, 4, 5,
and 8 of U.S. Letters Patent 5,620,489 (``the ``489 patent''), owned by
UAS and exclusively licensed to 3M. The complaint further alleged that
an industry in the United States exists as required by subsection
(a)(2) of section 337.
Complainants moved to terminate the investigation with respect to
Kinik Corp. after they concluded that Kinik Corp was not manufacturing
or importing products that infringed the '489 patent. The ALJ granted
this motion on June 19, 2001, in an initial determination (``ID'')
(Order No. 15) and the Commission determined not to review that ID. On
August 8, 2001, the ALJ issued an ID (Order No. 19) that the economic
prong of the domestic industry requirement was satisfied with respect
to the claims at issue of the '489 patent, and the Commission
determined not to review that ID.
An evidentiary hearing was held on October 10-17, 27, and 30, 2001.
On February 8, 2002, the ALJ issued his final ID, in which he
determined that respondent Kinik's accused DiaGrid abrasive products
infringed claims 1, 4, 5, and 8 of the '489 patent and that the '489
patent was 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 all Kinik abrasive products that infringe the '489
patent, which includes products produced using Kinik's DiaGrid process.
He also recommended issuance of a cease and desist order against Kinik,
and a bond during the Presidential review period in the amount of five
percent of the entered value of the infringing Kinik products.
On February 21, 2002, Kinik petitioned for review of the ALJ's
final ID. Kinik also appealed Order No. 40, issued by the ALJ on
October 12, 2001. That order precluded Kinik from asserting 35 U.S.C.
271(g) as a non-infringement defense. On February 28, 2002, 3M and the
Commission investigative attorney (``IA'') filed oppositions to Kinik's
petition for review and its appeal of Order No. 40.
On March 29, 2002, the Commission determined to affirm Order No. 40
and not to review the ALJ's final ID, and issued a notice to that
effect. 67 FR 16116 (Apr. 4, 2002). The Commission also issued an
opinion explaining its reasons for affirming Order No. 40.
Having determined that a violation of section 337 has occurred in
this investigation, the Commission sought comments on and considered
the issues of the appropriate form of relief, whether the public
interest precludes issuance of such relief, and the bond during the 60-
day Presidential review period.
The Commission determined that the appropriate remedy consists of a
limited exclusion order prohibiting the importation of the infringing
abrasive products manufactured abroad by Kinik Company of Taipei,
Taiwan, and a cease and desist order directed to Kinik prohibiting that
company from selling or engaging in various other commercial activities
relating to such products within the United States. The Commission
further determined that the statutory public interest factors do not
preclude the issuance of such relief. Finally, the Commission
determined that during the Presidential review period importation and
sales within the United States should be permitted pursuant to a bond
requirement in the amount of five percent of the entered value of the
infringing abrasive products.
This action is taken under the authority of section 337 of the
Tariff Act of 1930 (19 U.S.C. 1337) and section 210.50 of the
Commission's Rules of Practice and Procedure (19 CFR 210.50).
Issued: May 9, 2002.
By order of the Commission.
Marilyn R. Abbott,
Secretary.
[FR Doc. 02-12157 Filed 5-14-02; 8:45 am]
BILLING CODE 7020-02-P