2010-8044. In the Matter of Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same; Notice of Commission Issuance of a General Exclusion Order, a Limited Exclusion Order, and a Remand Order; Extension of Target Date

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined that there is a violation of 19 U.S.C. 1337 by Hanjiang Fei Yu Electronics Equipment Factory of China; Zhongguang Electronics of China; Yangzhou Zhongguang Electronics Co. of China; and Yangzhou Zhongguang Foreign Trade Co. Ltd. of China (collectively, “defaulting respondents”) with respect to U.S. Patent Nos. 6,558,194 (“the `194 patent”) and D519,076 (“the `076 patent”) in the above-captioned investigation. The Commission has also determined that neither respondents Fu-Ching Technical Industry Co., Ltd. of Taiwan (“Fu-Ching”), Gem Electronics, Inc. of Windsor, Connecticut (“Gem”) (collectively, “active respondents”) nor the defaulting respondents have violated section 337 in connection with U.S. Patent No. 5,470,257 (“the `257 patent”). The Commission has determined to issue a general exclusion order and a limited exclusion order. The Commission has also determined to issue a remand order remanding the portion of the investigation relating to U.S. Patent No. D440,539 (“the `539 patent”) to the administrative law judge (“ALJ”) for further proceedings. The Commission has determined to extend the target date by 60 days until May 26, 2010.

FOR FURTHER INFORMATION CONTACT:

Daniel E. Valencia, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone [phone]. 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 [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. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on [phone].

SUPPLEMENTARY INFORMATION:

The Commission instituted this investigation on May 30, 2008, based on a complaint filed by John Mezzalingua Associates, Inc. d/b/a PPC, Inc. of East Syracuse, New York (“PPC”). 73 FR 31145 (May 30, 2008). The 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, and the sale within the United States after importation of certain coaxial cable connectors and components thereof and products containing the same by reason of infringement of the `257, `539, `194, and `076 patents. The complaint named eight respondents. After institution, two respondents were terminated from the investigation based on consent orders, and the following four respondents were found in default: Hanjiang Fei Yu Electronics Equipment Factory of China; Zhongguang Electronics of China; Yangzhou Zhongguang Electronics Co. of China; and Yangzhou Zhongguang Foreign Trade Co. Ltd. of China. The only respondents actively remaining in this investigation are Fu-Ching and Gem.

On October 13, 2009, the ALJ issued his final initial determination (“ID”) finding, based on substantial, reliable, and probative evidence, that the defaulting respondents violated section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain coaxial cable connectors and components thereof and products containing the same by reason of infringement of the `257, `539, `076, and `194 patents. The ALJ found that the active respondents have not violated section 337. Based upon petitions for review filed by PPC and the Commission Investigative Attorney, the Commission, on December 14, 2009, determined to review (1) the ALJ's findings and conclusions relating to whether a violation of section 337 has occurred with respect to the `257 patent, including the issues of claim construction, infringement, validity, and domestic industry and (2) the ALJ's finding that PPC has met the domestic industry requirement for the `539 patent.

In its review notice, the Commission asked several questions regarding the issues on review, and invited the public to comment on the domestic industry requirement under section 337(a)(3)(C), 19 U.S.C. 1337(a)(3)(C). On January 13, 2010, the parties filed opening submissions addressing the issues on review as well as remedy, public interest, and bonding, and on January 27, 2010, the parties filed response submissions. Several non-parties also filed submissions addressing the questions regarding domestic industry in the Commission's review notice.

On January 29, 2010, the law firm of Covington and Burling LLP filed, on behalf of several non-parties, a motion for leave to correct a reply submission, which it had timely filed on January 27, 2010. No one opposed this motion. The Commission has determined to grant this motion.

Having examined the record of this investigation, including the ALJ's final ID and all the written submissions, the Commission has determined to vacate in part the ALJ's finding that complainant PPC established a domestic industry for the `539 patent and to issue an order remanding the portion of the investigation relating to the `539 patent to the ALJ for further proceedings. The Commission has also determined to modify the ALJ's constructions of “fastener means” and “engagement means” in the `257 patent and consequently reverse the ALJ's finding that complainant PPC established a domestic industry for the `257 patent and his finding that a violation has occurred with respect to the `257 patent. The Commission has determined that the defaulting respondents violated section 337 by reason of infringement of the `076 and `194 patents. The Commission has determined that the active respondents, Fu-Ching and Gem, did not violate section 337.

The Commission has determined that the appropriate form of relief is a limited exclusion order and a general exclusion order. The limited exclusion order prohibits the unlicensed entry of coaxial cable connectors and components thereof and products containing the same that infringe the claim of the `076 design patent and are manufactured abroad by or on behalf of, or imported by or on behalf of, any of the defaulting respondents. The general exclusion order prohibits the unlicensed entry of coaxial cable connectors and components thereof and products containing the same that infringe claim 1 and/or 2 of the `194 patent.

The Commission further determined that the public interest factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude issuance of the limited exclusion order and the general exclusion order. Finally, the Commission determined that the amount of bond during the Presidential review period (19 U.S.C. 1337(j)) shall be in the amount of thirteen (13) cents per coaxial connector of the defaulting respondents that is subject to the limited exclusion order or the general exclusion order. No bond is required for any other coaxial cable connector or component thereof or product containing the same covered by the general exclusion order. The Commission's order was delivered to the President and the United States Trade Representative on the day of its issuance.

Finally, the Commission has determined to extend the target date from March 26, 2010, to May 26, 2010, to allow the ALJ time to consider the Commission's remand instructions. The Commission has instructed the ALJ to make his determination on remand at the earliest practicable time, and to extend the target date of the above-captioned investigation as he deems necessary to accommodate the remand proceedings.

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 210.42-50 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-50).

By order of the Commission.

Issued: March 31, 2010.

Marilyn R. Abbott,

Secretary to the Commission.