[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Notices]
[Pages 4373-4374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1421]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-644]
In the Matter of Certain Composite Wear Components and Welding
Products Containing Same; Notice of Commission Determination to
Temporarily Rescind Its Limited Exclusion Order and Cease and Desist
Order Entered on November 24, 2009 Pending Resolution of Federal
Circuit Appeal
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 temporarily rescind its exclusion order
[[Page 4374]]
and cease and desist order entered on November 24, 2009 against
respondents AIA Engineering Limited and Vega Industries Ltd. (``AIA'')
in the subject investigation, pending resolution of the validity of
United States Patent No. RE39,998 by the United States Court of Appeals
for the Federal Circuit.
FOR FURTHER INFORMATION CONTACT: Jia Chen, Esq., Office of the General
Counsel, U.S. International Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202) 708-4737. 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: The Commission instituted this investigation
on April 21, 2008, based on a complaint filed by Magotteaux
International S/A and Magotteaux Inc. (``Magotteaux''). 73 FR 22431
(Apr. 25, 2008). The complaint, as supplemented, 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 composite
wear components and products containing the same that infringe certain
claims of U.S. Patent No. RE39,998. The complaint named Fonderie
Acciaiere Rioale S.P.A. (``FAR'') and AIA as respondents. FAR was
subsequently terminated from the investigation on the basis of a
settlement agreement, leaving AIA as the remaining respondent.
On November 24, 2009, the Commission issued a limited exclusion
order and a cease and desist order against AIA, who was found by the
ALJ to be in default. The limited exclusion order prohibits the
unlicensed entry for consumption of composite wear components and
products containing the same that are covered by one or more of claims
12-13 and 16-21 of the `998 patent and that are manufactured abroad by
or on behalf of, or are imported by or on behalf of, AIA or any of
their affiliated companies, parents, subsidiaries, or other related
business entities, or their successors or assigns. 74 FR 62814 (Dec. 1,
2009). The cease and desist order covers products that infringe claims
12-13 and 16-21 of the `998 patent and is directed to domestic
respondent Vega Industries and any of its principals, stockholders,
officers, directors, employees, agents, licensees, distributors,
controlled and majority owned business entities, successors, and
assigns. Id.
On September 3, 2010, the `998 patent was declared invalid by the
District Court for the Middle District of Tennessee in a declaratory
judgment action filed by AIA against Magotteaux. On September 28, 2010,
Magotteaux noticed an appeal of the district court's decision to the
Court of Appeals for the Federal Circuit. On October 5, 2010, AIA filed
a petition under 19 U.S.C. 1337(k) and 19 CFR 210.76 asking the
Commission to rescind its November 24, 2009 exclusion order and cease
and desist order in light of the district court's holding invalidating
the `998 patent. Complainant Magotteaux opposed the petition on October
15, 2010 and requested that the Commission hold a public hearing. The
Commission investigative attorney did not file a formal response, but
did provide copies of certain Commission opinions referenced by
Magotteaux in its opposition that were unavailable to the parties via
the Commission's EDIS database. On October 21, 2010, Magotteaux filed a
motion for leave to supplement its October 15, 2010 response. On
October 27, 2010, AIA filed a motion for leave to file a reply to
Magotteaux's response and supplement response. On November 1, 2010, the
Commission granted both motions for leave. On November 11, 2010,
Magotteaux moved for leave to file a sur-reply in response to AIA's
Reply. On November 19, 2010, AIA opposed the motion. On November 29,
2009, the Commission granted Magotteaux's motion for leave to file a
sur-reply, but indicated that no further briefing was expected.
After consideration of the petition and the responses and replies
thereto, the Commission has determined to temporarily rescind its
limited exclusion order and cease and desist order entered on November
24, 2009 against AIA pending resolution on appeal of the district
court's decision by the Federal Circuit. The Commission's remedial
orders will become permanently rescinded if the Federal Circuit affirms
the district court's judgment with respect to claims 12-13 and 16-21 of
the `998 patent, i.e., the claims covered by the Commission's remedial
orders, and will be reinstated if the Federal Circuit reverses the
district court's judgment with respect to those claims. The Commission
has determined to deny Magotteaux's request for a public hearing.
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 210.76(b) of the Commission's Rules of Practice and
Procedure (19 CFR 210.76(b)).
By order of the Commission.
Issued: January 18, 2011.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2011-1421 Filed 1-24-11; 8:45 am]
BILLING CODE 7020-02-P