[Federal Register Volume 62, Number 15 (Thursday, January 23, 1997)]
[Notices]
[Pages 3525-3526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1638]
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DEPARTMENT OF THE INTERIOR
[Inv. No. 337-TA-334]
Notice of Commission Determination to Review in Part an Initial
Determination; Schedule for the Filing of Written Submissions on the
Issue Under Review, and on Remedy, the Public Interest, and Bonding
In the Matter of certain condensers, parts thereof and products
containing same, including air conditioners for automobiles.
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 review in part the initial determination
(ID) issued by the presiding administrative law judge (ALJ) on December
2, 1996, in the above-captioned investigation. The ID found a violation
of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337.
FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the
General Counsel, U.S. International Trade Commission, telephone 202-
205-3104.
SUPPLEMENTARY INFORMATION: On December 12, 1991, Modine Manufacturing
Co. filed a complaint with the Commission alleging a violation of
section 337 by respondents Showa Aluminum Corporation, Showa Aluminum
Corporation of America, Mitsubishi Motors Corporation, Mitsubishi
Motors Sales of America, Mitsubishi Heavy Industries, Ltd., and
Mitsubishi Heavy Industries America, Inc. (collectively referred to
herein as respondents). Modine alleged that the respondents had
infringed claims of Modine's patent, U.S. Letters Patent 4,998,580 (the
'580 patent). The investigation was assigned an ALJ, who determined
that there was no infringement, either literally or under the doctrine
of equivalents, by the respondents. The ALJ further determined that the
patent was invalid and unenforceable due to inequitable conduct. On
July 30, 1993, the Commission reversed the ALJ's findings of invalidity
and inequitable conduct, but adopted her findings and conclusions on
the infringement issues.
Modine appealed the Commission's finding of no infringement, and
thus no violation of section 337, to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit). In the same appeal, the respondents
challenged the Commission's findings upholding the validity and
enforceability of the '580 patent. On February 5, 1996, the Federal
Circuit reversed the Commission's claim interpretation and remanded the
investigation to the Commission for redetermination of the issues of
literal infringement and infringement under the doctrine of
equivalents. Modine Manufacturing Co. v. U.S.I.T.C., 75 F.3d 1545, 1549
(Fed. Cir. 1996). The court affirmed the Commission's determination in
all other respects. Id.
On May 31, 1996, the Commission issued an order remanding the
Condensers investigation to the Office of Administrative Law Judges.
The order provided that the presiding ALJ conduct further proceedings
in accordance with the Federal Circuit's decision in Modine and issue
an ID on violation, preferably within six months. The Commission's
order also directed the ALJ to issue a recommended determination (RD)
on the issues of remedy and bonding two weeks after the ID issued. On
December 2, 1996, the ALJ issued an ID finding a violation of section
337 by respondents. On December 12, 1996, respondents and the
Commission investigative attorney (IA) filed separate petitions for
review. Complainant Modine filed a petition for review contingent on
the Commission's decision either to grant another party's petition for
review or to review the ID on its own motion. All parties filed
responses to each petition on December 19, 1996. The ALJ issued his RD
on remedy and bonding on December 16, 1996.
Having examined the record in this investigation, including the ID,
the Commission has determined to review the reasoning supporting the
ALJ's finding that the proper estoppel point for the Cat condenser is
0.04822 inch. The Commission has determined not to review the ID in all
other respects. On review, the Commission will consider whether the
0.04822 inch measurement is properly considered law of the case, given
that the Commission's previous finding that the Cat condenser's
hydraulic diameter was 0.04822 inch was affirmed by the Federal Circuit
when it affirmed the Commission's findings on the scope and content of
the prior art. Modine, 75 F. 3d at 1549.
In connection with final disposition of this investigation, the
Commission may issue (1) an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
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 the
Commission Opinion in In the Matter of Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360.
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
[[Page 3526]]
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 a 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 issue under review. The submissions
should be concise and thoroughly referenced to the record in this
investigation, including, where necessary, references to specific
exhibits and testimony. Additionally, the parties to the investigation,
interested government agencies, and any other interested persons are
encouraged to file written submissions on the issues of remedy, the
public interest, and bonding. Such submissions should address the
December 16, 1996, 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 the close of business on January 30, 1997.
Reply submissions must be filed no later than the close of business on
February 6, 1997. No further submissions will be permitted unless
otherwise ordered by the Commission.
Persons filing written submissions must file with the Office of the
Secretary the original document and 14 true copies thereof on or before
the deadlines stated above. 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 19 C.F.R. 201.6. Documents for which confidential
treatment is granted by the Commission will be treated accordingly. All
nonconfidential written submissions will be available for public
inspection at the Office of the Secretary.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), and sections
210.45-.51 of the Commission's Rules of Practice and Procedure (19
C.F.R. 210.45-.51).
Copies of the public version of the 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, S.W., Washington, D.C.
20436, telephone 202-205-2000. Hearing impaired persons are advised
that information on the matter can be obtained by contacting the
Commission's TDD terminal at 202-205-1810.
Issued: January 16, 1997.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 97-1638 Filed 1-22 97; 8:45 am]
BILLING CODE 7020-02-P
