[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Notices]
[Pages 63198-63200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25801]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-587]
In the Matter of Certain Connecting Devices (``Quick Clamps'')
for Use With Modular Compressed Air Conditioning Units, Including
Filters, Regulators, and Lubricators (``Frl's'') That Are Part of
Larger Pneumatic Systems and the FRL Units They Connect; Notice of
Commission Decision To Review a Final Initial Determination; Schedule
for Filing Written Submissions on the Issue Under Review and on Remedy,
the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review the final initial determination
(``ID'') on remand issued by the presiding administrative law judge
(``ALJ'') and denied motions to file reply and sur-reply briefs in
connection with the petitions for review.
FOR FURTHER INFORMATION CONTACT: Mark B. Rees, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202) 205-3116. 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
[[Page 63199]]
contacting the Commission's TDD terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on November 13, 2006, based on a complaint filed by Norgren, Inc.
(``Norgren'') of Littleton, Colorado. 71 FR 66193 (Nov. 13, 2006). An
amended complaint was filed on October 25, 2006. A supplement to the
complaint was filed on November 1, 2006. The amended complaint 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, or
the sale within the United States after importation of certain devices
for modular compressed air conditioning units and the FRL units they
connect by reason of infringement of claims 1-9 of U.S. Patent No.
5,372,392 (``the '392 patent''). The amended complaint also alleged
that a domestic industry exists with regard to the '392 patent under
subsection (a)(2) of section 337. The amended complaint named SMC Corp.
of Japan; SMC Corporation of America of Indianapolis, Indiana
(collectively, ``SMC''); AIRTAC of China; and MFD Pneumatics (``MFD'')
of Chicago, Illinois as the respondents and requested a limited
exclusion order and a cease and desist order. On July 13, 2007, the
Commission determined not to review an ID terminating the investigation
with respect to MFD and AIRTAC on the basis of a consent order
stipulation and consent order.
On February 13, 2008, the ALJ issued his final ID finding no
violation of section 337. Specifically, the ALJ found that there had
been an importation of SMC's accused products and that none of the
accused products infringe the asserted claims of the '392 patent. He
also found that the asserted claims are not invalid due to obviousness.
He further found that Norgren satisfies the domestic industry
requirement with respect to the '392 patent. On February 25, 2008, the
ALJ issued a recommended determination on remedy and bonding in the
event the Commission reversed his finding of no violation of section
337.
On April 18, 2008, the Commission determined not to review the ID
and terminated the investigation based on the finding of no violation
of section 337. 73 FR 21157 (Apr. 18, 2008). Norgren appealed to the
U.S. Court of Appeals for the Federal Circuit (``the Court'').
On May 26, 2009, the Court issued its judgment, reversing-in-part
the Commission's claim construction, reversing the Commission's
determination of noninfringement, and vacating the Commission's
determination of nonobviousness. Norgren Inc. v. Int'l Trade Comm'n,
No. 2008-1415 (Fed.Cir. May 26, 2009). The Court remanded the
investigation with instructions for the Commission to evaluate
obviousness in the first instance based upon the Court's construction
of the claim term ``generally rectangular ported flange.''
Following receipt of the Court's September 9, 2009, mandate, the
Commission ordered the investigation remanded to the Chief ALJ for
designation of a presiding ALJ to conduct proceedings in accordance
with the Court's judgment. The Chief Judge reassigned the investigation
to the ALJ who presided over the original investigation. The ALJ held
an evidentiary hearing on April 21, 2010, at which all parties were
represented. The parties also fully briefed the merits.
On August 5, 2010, the ALJ issued the final ID on remand in which
he determined that the asserted claims are not invalid for obviousness.
SMC and the Commission investigative attorney (``IA'') have petitioned
for review of the ID. Norgren has filed a response in opposition to the
petitions. The IA and Norgren have also moved to file reply and sur-
reply briefs, respectively, in connection with the petitions for
review.
Having examined the record of this investigation, including the
final ID on remand, the petitions for review, the response in
opposition to the petitions, and the motions for leave to file a reply
to the response and a sur-reply to the reply to the response, the
Commission has determined to review the ID on the issue of obviousness
and has determined to deny the motions for additional briefing.
On review, the Commission requests written submissions on the issue
under review, particularly the sub-issues of (a) whether the SMC old-
style clamp is generally rectangular and (b) whether adding a hinge to
one side of a generally rectangular clamp would have been obvious to
one skilled in the art in 1993. The Commission also requests that the
parties include in their submissions responses to the following
queries, with supporting citations to the evidentiary record:
1. Is the ID's finding that the SMC old-style clamp is not
``generally rectangular'' contrary to the Court's holding in Norgren
Inc. v. Int'l Trade Comm'n, No. 2008-1415 (Fed.Cir. May 26, 2009) (Slip
Op. at 6-7) that the SMC and Norgren FRL flanges, which seem to have
``intervening sloped sides'' and ``octagonal'' and other appearances,
are ``generally rectangular''?
2. How, if at all, does the addition of a hinge to swing open and
closed one side of a generally rectangular clamp affect the clamp's
ability to seal as claimed in the '392 patent?
3. Applying a flexible standard, please identify the teaching(s),
motivation(s), or suggestion(s), if any, that existed pre-invention
that would have made it obvious to a person of ordinary skill in the
art in 1993 to combine a hinge with a generally rectangular clamp used
in a pressure air system.
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 are 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
(Dec. 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
[[Page 63200]]
amount of the bond that should be imposed.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issue under review as set forth
above. 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
recommended determination by the ALJ on remedy and bonding. Complainant
and the IA are also requested to submit proposed remedial orders for
the Commission's consideration. Complainant is further requested to
provide the expiration date of the '392 patent and state the HTSUS
number under which the accused articles are imported. The written
submissions and proposed remedial orders must be filed no later than
the close of business on October 21, 2010. Reply submissions must be
filed no later than the close of business on November 1, 2010. 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 sections 210.42-.46 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42-.46).
Issued: October 7, 2010.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-25801 Filed 10-13-10; 8:45 am]
BILLING CODE 7020-02-P