2013-08963. Certain Omega-3 Extracts From Marine or Aquatic Biomass and Products Containing the Same; Institution of Investigation Pursuant to 19 U.S.C. 1337

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on January 29, 2013, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Neptune Technologies & Bioressources, Inc. of Canada and Acasti Pharma Inc. of Canada. An amended complaint was filed on March 21, 2013. A supplement to the amended complaint was filed on April 1, 2013. The amended complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain omega-3 extracts from marine or aquatic biomass and products containing the same by reason of infringement of certain claims of U.S. Patent No. 8,278,351 (“the `351 patent”) and U.S. Patent No. 8,383,675 (“the `675 patent”). The amended complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.

The complainants request that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.

ADDRESSES:

The amended complaint, except for any confidential information contained therein, is 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., Room 112, Washington, DC 20436, telephone [phone]. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on [phone]. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at [phone]. 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.

FOR FURTHER INFORMATION CONTACT:

The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone [phone].

Authority: The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2012).

Scope of Investigation: Having considered the amended complaint, the U.S. International Trade Commission, on April 10, 2013, ordered that—

(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain omega-3 extracts from marine or aquatic biomass and products containing the same by reason of infringement of one or more of claims 1-46 and 94 of the `351 patent and claim 1 of the `675 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;

(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);

(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:

(a) The complainants are:

Neptune Technologies & Bioressources Inc., 545 Promenade du Centropolis, Suite 100, Laval, Québec, Canada H7T 0A3;

Acasti Pharma Inc., 545 Promenade du Centropolis, Suite 100, Laval, Québec, Canada H7T 0A3.

(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:

Aker BioMarine AS, Fjordallen 16, Vika, 0115 Oslo, Norway;

Aker BioMarine Anarctic USA. Inc., 10 Newport Way NW., Suite D, Issaquah, WA 98027;

Aker BioMarine Antarctic AS, J.M. jonasens vei 99, 8340, Stamsund, Norway;

Enzymotec Limited, Sagi 2000, Industrial Zone K'far Baruch, Israel;

Enzymotec USA, Inc., 55 Madison Avenue, Suite 400, Morristown, NJ 07960;

Olympic Seafood AS, Vågsplassen 6090, Fosnavåg, Norway;

Olympic Biotec Ltd., 79 Appleby Highway Richmond, 7050, New Zealand;

Avoca, Inc., 841 Avoca Farm Road, Merry Hill, NC 27957;

Rimfrost USA, LLC, 841 Avoca Farm Road, Merry Hill, NC 27957;

Bioriginal Food & Science Corp., 102 Melville Street, Saskatoon, SK, S7J 0R1 Canada.

(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and

(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.

Responses to the amended complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the amended complaint and the notice of investigation. Extensions of time for submitting responses to the amended complaint and the notice of investigation will not be granted unless good cause therefor is shown.

Failure of a respondent to file a timely response to each allegation in the amended complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the amended complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the amended complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.

Issued: April 11, 2013.

By order of the Commission.

Lisa R. Barton,

Acting Secretary to the Commission.