[Federal Register Volume 74, Number 161 (Friday, August 21, 2009)]
[Notices]
[Pages 42325-42326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20106]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-565]
In the Matter of Certain Ink Cartridges and Components Thereof;
Consolidated Enforcement Proceeding and Enforcement Proceeding II;
Notice of Commission Determinations on Civil Penalties; Termination of
Enforcement Proceedings
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 levy civil penalties in the above-
captioned proceeding after finding violations of cease and desist
orders and a consent order issued in the original investigation. The
Commission has terminated the proceedings.
FOR FURTHER INFORMATION CONTACT: Michael Haldenstein, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 205-3041. 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 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 the matter can be obtained by contacting the Commission's TDD
terminal on 202-205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted the underlying
investigation in this matter on March 23, 2006, based on a complaint
filed by Epson Portland, Inc. of Oregon; Epson America, Inc. of
California; and Seiko Epson Corporation of Japan (collectively,
``Epson''). 71 FR 14720 (March 23, 2006). The complaint, as amended,
alleged violations of section 337 of the Tariff Act of 1930 (``section
337'') in the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain ink cartridges and components thereof by reason of infringement
of claim 7 of U.S. Patent No. 5,615,957; claims 18, 81, 93, 149, 164,
and 165 of U.S. Patent No. 5,622,439; claims 83 and 84 of U.S. Patent
No. 5,158,377; claims 19 and 20 of U.S. Patent No. 5,221,148; claims
29, 31, 34, and 38 of U.S. Patent No. 5,156,472; claim 1 of U.S. Patent
No. 5,488,401; claims 1-3 and 9 of U.S. Patent No. 6,502,917; claims 1,
31, and 34 of U.S. Patent No. 6,550,902; claims 1, 10, and 14 of U.S.
Patent No. 6,955,422; claim 1 of U.S. Patent No. 7,008,053; and claims
21, 45, 53, and 54 of U. S. Patent No. 7,011,397. The complaint further
alleged that an industry in the United States exists as required by
subsection (a)(2) of section 337. The complainants requested that the
Commission issue a general exclusion order and cease and desist orders.
The Commission named as respondents 24 companies located in China,
Germany, Hong Kong, Korea, and the United States. Several respondents
were terminated from the investigation on the basis of settlement
agreements or consent orders or were found in default.
On October 19, 2007, after review of the ALJ's final ID, the
Commission made its final determination in the investigation, finding a
violation of section 337. The Commission issued a general exclusion
order, a limited exclusion order, and cease and desist orders directed
to several domestic respondents. The Commission also determined that
the public interest factors enumerated in 19 U.S.C. 1337(d), (f), and
(g) did not preclude issuance of the aforementioned remedial orders,
and that the bond during the Presidential period of review would be
$13.60 per cartridge for covered ink cartridges. Certain respondents
appealed the Commission's final determination to the United States
Court of Appeals for the Federal Circuit (``Federal Circuit''). On
January 13, 2009, the Federal Circuit affirmed the Commission's final
determination without opinion pursuant to Fed. Cir. R. 36. Ninestar
Technology Co. et al. v. International Trade Commission, Appeal No.
2008-1201.
On February 8, 2008, Epson filed two complaints for enforcement of
the Commission's orders pursuant to Commission rule 210.75. Epson
proposed that the Commission name five respondents as enforcement
respondents. On May 1, 2008, the Commission determined that the
criteria for institution of enforcement proceedings were satisfied and
instituted consolidated enforcement proceedings, naming the five
following proposed respondents as enforcement respondents: Ninestar
Technology Co., Ltd.; Ninestar Technology Company, Ltd.; Town Sky Inc.
(collectively, the
[[Page 42326]]
``Ninestar Respondents''), as well as Mipo America Ltd. (``Mipo
America'') and Mipo International, Ltd (collectively, the ``Mipo
Respondents''). On March 18, 2008, Epson filed a third enforcement
complaint against two proposed respondents: Ribbon Tree USA, Inc. (dba
Cana-Pacific Ribbons) and Apex Distributing Inc.(collectively, the
``Apex Respondents''). On June 23, 2008, the Commission determined that
the criteria for institution of enforcement proceedings were satisfied
and instituted another formal enforcement proceeding and named the two
proposed respondents as the enforcement respondents. On September 18,
2008, the ALJ issued Order No. 37, consolidating the two proceedings.
On April 17, 2009, the ALJ issued his Enforcement Initial
Determination (EID) in which he determined that there have been
violations of the Commission's cease and desist orders and consent
order and recommended that the Commission impose civil penalties for
such violations. The Ninestar Respondents filed a timely petition for
review. The Commission considered the EID, the petition for review, the
responses thereto, and other relevant portions of the record and
determined not to review the EID on June 19, 2009.
The Commission then requested separate briefing concerning the
imposition of civil penalties for violation of the cease and desist
orders and a consent order. Epson, the Ninestar Respondents, and the
Commission investigative attorney filed written submissions and
responses thereto.
Based upon its consideration of the EID, the submissions of the
parties, and the entire record in this proceeding, the Commission
adopts the EID's analysis concerning civil penalties, except as
otherwise noted or supplemented in its order and opinion (to be issued
later). However, while the Commission adopts the EID's recommended
penalty with respect to the Mipo Respondents and the Apex Respondents,
the Commission has determined to impose a lesser penalty on the
Ninestar Respondents.
Accordingly, and subject to final adjudication of any appeal of the
same, the Commission has determined to impose a civil penalty in the
amount of $11,110,000 against the Ninestar Respondents, jointly and
severally. Against the Mipo Respondents, the Commission has determined
to impose a civil penalty in the amount of $9,700,000 jointly and
severally, and the Commission has determined to impose a civil penalty
in the amount of $700,000 jointly and severally against the Apex
Respondents.
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
section 210.75 of the Commission's Rules of Practice and Procedure (19
CFR 210.75).
Issued: August 17, 2009.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-20106 Filed 8-20-09; 8:45 am]
BILLING CODE 7020-02-P