[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Notices]
[Pages 30541-30542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14525]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-406]
Certain Lens-Fitted Film Packages; Notice of Issuance of General
Exclusion Order and Cease and Desist Orders; Termination of the
Investigation
AGENCY: International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission determined to reverse-in-part the presiding administrative
law judges (ALJ's) initial determination (ID) of February 24, 1999, in
the above-captioned investigation and determine that the design patents
in issue are infringed by the respondents. The Commission also
determined that the correct standard for the burden of proof on the
repair/reconstruction issue is a preponderance of the evidence. The
Commission also determined to correct certain technical errors in the
ID's infringement findings. Having found a violation of section 337 of
the Tariff Act of 1930, 19 U.S.C. 1337, the Commission issued a general
exclusion order and cease and desist orders directed to 20 domestic
respondents, and terminated the investigation.
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
[[Page 30542]]
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, viz., Achiever
Industries Limited, Argus Industries, China Film Equipment, Dynatec
International Inc., Jazz Photo Corp., OptiColor Camera, P.S.I.
Industries, and Sakar International, Inc. (the participating
respondents). On December 4, 1998, the Commission determined not to
review an ID granting complainant's oral motion to withdraw 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. He
recommended that the Commission issue a general exclusion order
directing that disposable cameras that infringe the claims in
controversy 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 directed to the 21 domestic respondents found in
violation of section 337. Finally, he recommended a 100 percent bond
during the period of Presidential review.
On March 8, 1999, the participating respondents, complainant Fuji,
and the Commission investigative attorney (IA) filed petitions for
review of the ID. Upon considering the petitions, the Commission, on
April 19, 1999, determined to review the following issues: (1) The
standard for the burden of proof applied in the ID for establishing
repair versus reconstruction of a patented product, (2) the ID's
determination that the design patents asserted in this investigation
were not infringed, (3) infringement issues insofar as necessary to
correct certain clerical errors brought to the Commission's attention
by the IA. 64 FR 20324-25 (April 26, 1999).
The Commission received written submissions from the parties that
addressed the form of remedy, if any, that should be ordered, the
effect of a remedy on the public interest, and the amount of bond that
should be imposed during the 60-day Presidential review period.
Having reviewed the record in this investigation, including the
written submissions of the parties, the Commission determined (1) to
reverse the ALJ's finding that Fuji failed to carry its burden of proof
on the issue of design patent infringement; (2) to correct the standard
of the burden of proof on the repair/reconstruction issue to be proof
by a preponderance of the evidence; and (3) to correct technical errors
in the ID's infringement findings. The Commission further determined
that the appropriate form of relief is a general exclusion order
prohibiting the unlicensed entry for consumption of lens-fitted film
packages that infringe the claims in issue of the 15 patents asserted
by Fuji in this investigation. The Commission also determined to issue
20 cease and desist orders directed to domestic respondents Fast Shot,
Haichi International, Innovative Trading Company, Labelle Time, Inc.,
Forcecam, Inc., Argus Industries, Dynatec International Inc., Jazz
Photo Corp., OptiColor Camera, P.S.I. Industries, Sakar International,
Inc., Ad-Tek Specialties Inc., AmerImage, Inc. d/b/a/ Rainbow Products,
Boecks Camera LLC, BPS Marketing, E.T. Trading d/b/a Klikit, PhilmEx
Photographic Film, T.D.A. Trading Corp., Vantage Sales, Inc., and
Vivitar Corp. Respondent Penmax made a credible showing that it has no
remaining inventory of infringing products, and the Commission
therefore determined not to issue a cease and desist order against
Penmax.
The Commission also determined that the public interest factors
enumerated in subsections (d) and (f) of section 337 do not preclude
the issuance of the aforementioned general exclusion order and cease
and desist orders, and that the bond during the Presidential review
period shall be in the amount of 100 percent of the entered value of
the articles in question.
Copies of the Commission's orders, the public version of the
Commission's opinion in support thereof, 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.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, 19 U.S.C. 1337, the Administrative Procedure Act, 5
U.S.C. 551 et seq., and sections 210.45-210.51 of the Commission's
Rules of Practice and Procedure, 19 CFR 210.45-210.51.
By order of the Commission.
Issued: June 2, 1999,
Donna R. Koehnke,
Secretary.
[FR Doc. 99-14525 Filed 6-7-99; 8:45 am]
BILLING CODE 7020-02-P
