99-14525. Certain Lens-Fitted Film Packages; Notice of Issuance of General Exclusion Order and Cease and Desist Orders; Termination of the Investigation  

  • [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
    
    
    

Document Information

Published:
06/08/1999
Department:
International Trade Commission
Entry Type:
Notice
Action:
Notice.
Document Number:
99-14525
Pages:
30541-30542 (2 pages)
Docket Numbers:
Inv. No. 337-TA-406
PDF File:
99-14525.pdf