[Federal Register Volume 64, Number 79 (Monday, April 26, 1999)]
[Notices]
[Pages 20324-20325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10519]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-406]
Certain Lens-Fitted Film Packages; Notice of Commission
Determination to Review-in-Part a Final Initial Determination Finding a
Violation of Section 337; Schedule for Written Submissions on Remedy,
the Public Interest, and Bonding
AGENCY: International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review-in-part the final initial
determination (ID) issued by the presiding administrative law judge
(ALJ) on February 24, 1999, finding a violation of section 337 of the
Tariff Act of 1930, 19 U.S.C. Sec. 1337, in the above-captioned
investigation. Specifically, the Commission has determined to review
the standard for the burden of proof applied in the ID for establishing
repair versus reconstruction of a patented product and the ID's
determination of no infringement of the design patents asserted in this
investigation. The Commission has also determined to review the
infringement issues insofar as necessary to correct certain clerical
errors brought to the Commission's attention by the Office of Unfair
Import Investigations.
FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the
General Counsel, U.S. International Trade Commission, telephone 202-
205-3104. General information concerning the Commission may also be
obtained by accessing its Internet server (http://www.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: This investigation was instituted on March
25, 1998, based on a complaint by Fuji Photo Film Co., Ltd. (Fuji) of
Tokyo, Japan. 63 FR 14474. Fuji's complaint alleged unfair acts in
violation of section 337 in the importation and sale of certain lens-
fitted film packages (i.e., disposable cameras). The complaint alleged
that 27 respondents had infringed one or more claims of 15 patents held
by complainant Fuji. On October 23, 1998, the Commission determined not
to review two IDs finding a total of eight respondents, viz., Boshi
Technology Ltd., Fast Shot, Haichi International, Innovative Trading
Company, Labelle Time, Inc., Linfa Photographic Ind. Co. Ltd.,
Forcecam, Inc. and Rino Trading Co. Ltd., in default for failure to
respond to the complaint and notice of investigation. An evidentiary
hearing was held November 2-13, 1998. Eight respondents participated in
the hearing, Achiever Industries Limited, Argus Industries, China Film
Equipment, Dynatec International Inc., Jazz Photo Corp., Opticolor
Camera, P.S.I. Industries, and Sakar International, Inc. On December 4,
1998, the Commission determined not to review an ID granting
complainant's oral motion to withdraw
[[Page 20325]]
a single claim of one patent from the investigation. 63 FR 67918
(December 9, 1998). Ten respondents that had filed responses to the
complaint and notice of investigation failed to appear at the hearing,
viz., Ad-Tek Specialties Inc., AmerImage, Inc. d/b/a/ Rainbow Products,
Boecks Camera LLC, BPS Marketing, E.T. Trading d/b/a Klikit, Penmax,
Inc., PhilmEx Photographic Film, T.D.A. Trading Corp., Vantage Sales,
Inc. and Vivitar Corp.
On February 24, 1999, the ALJ issued his final ID, finding a
violation of section 337 by 26 of 27 named respondents. (Complainant
Fuji admitted at closing argument that one named respondent, Opticam
Inc, was not violating section 337). He found that Fuji had not carried
its burden of proof in showing infringement of three design patents.
The ALJ also issued his recommendations on remedy and bonding. The ALJ
recommended that the Commission issue a general exclusion order
directing that disposable cameras that infringe the claims of the 12
utility patents at issue be excluded from entry into the United States.
He also recommended that cease and desist orders be issued to the 21
domestic respondents found in violation. Finally, he recommended a 100
percent bond during the period of Presidential review.
On March 8, 1999, the eight respondents that appeared at the
hearing, complainant Fuji, and the Commission investigative attorney
(IA) filed petitions for review of the ID. On March 15, 1999, the
private parties filed responses. The IA filed his response to the
petitions on March 17, 1999.
Having examined the record in this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review: (1) the standard for the
burden of proof applied in the ID for establishing repair versus
reconstruction of a patented product, and (2) the ID's determination
that the design patents asserted in this investigation were not
infringed. The Commission has also determined to review the
infringement issues insofar as necessary to correct certain clerical
errors brought to the Commission's attention by the Office of Unfair
Import Investigations. The Commission requires no further briefing on
these issues.
In connection with the 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 action 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 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 (December 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 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, interested government agencies,
and any other interested parties are encouraged to file written
submissions on remedy, the public interest, and bonding. Such
submissions should address the February 24, 1999, 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
close of business on April 29, 1999. Reply submissions must be filed no
later than the close of business on May 6, 1999. No further submissions
on these issues 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 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.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, 19 U.S.C. 1337, and sections 210.45-210.51 of the
Commission's Rules of Practice and Procedure, 19 CFR 210.45-210.51.
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 SW, Washington, DC 20436,
telephone 202-205-2000.
Issued: April 19, 1999.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 99-10519 Filed 4-23-99; 8:45 am]
BILLING CODE 7020-02-P
