E6-11364. In the Matter of Certain Rubber Antidegradants, Components Thereof, and Products Containing Same; Final Commission Determination Regarding Violation; Issuance of Limited Exclusion Order; Termination of Investigation

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined to terminate the above-captioned investigation with a finding of violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”) by two respondents and issuance of a limited exclusion order.

FOR FURTHER INFORMATION CONTACT:

Wayne Herrington, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone [phone]. Copies of the public version of the Commission's opinion 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 [phone]. General information concerning the Commission may also be obtained by accessing its Internet server (http://www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://www.usitc.gov/​secretary/​edis.htm. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION:

The Commission instituted this section 337 investigation on March 29, 2005, based on a complaint filed by Flexsys America LP (“Flexsys”). 70 FR 15885 (March 29, 2005). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain rubber antidegradants, components thereof, and products containing same that infringe claims 30 and 61 of U.S. Patent No. 5,117,063 (“the ’063 patent”), claims 7 and 11 of U.S. Patent No. 5,608,111 (“the ’111 patent”), and claims 1, 32, and 40 of U.S. Patent No. 6,140,538 (“the ’538 patent”). The complaint and notice of investigation named five respondents. The investigation was subsequently terminated as to two respondents and as to the ’538 patent.

On February 17, 2006, the ALJ issued his final ID finding a violation of section 337 by respondents Sinorgchem Co., Shandong, (“Sinorgchem”) and Sovereign Chemical Company (“Sovereign”), but finding no violation of section 337 by respondent Korea Kumho Petrochemical Co., Ltd. (“KKPC”). The ALJ recommended that the Commission issue limited exclusion orders, but did not recommend that any bond be imposed for importations during the Presidential review period. All parties petitioned for review of various parts of the final ID.

On April 13, 2006, the Commission issued notice that it had determined to review the final ID in its entirety and received review submissions from all the parties, including submissions on remedy, public interest, and bonding. The Commission also received submissions from three non-parties. Respondent KKPC moved to strike these three submissions as well as Attachment 1 to Flexsys' initial review submission. KKPC also moved for leave to file a reply to Flexsys' response to its motion to strike.

Having examined the relevant portions of the record in this investigation, including the ALJ's initial and recommended determinations, the written submissions on the issues on review and on remedy, public interest, and bonding, and the replies thereto, the Commission determined (1) That there is a violation of section 337 by Sinorgchem and Sovereign, but no violation by KKPC; (2) to not reach the licensing and estoppel defenses raised by KKPC; (3) that the appropriate remedy for the violation by Sinorgchem and Sovereign is a limited exclusion order; and (4) to deny as moot KKPC's motion to strike and its motion for leave to file a reply.

The Commission also determined that the public interest factors enumerated in section 337(d) do not preclude the issuance of the aforementioned remedial order and that no bond should be set for importation during the Presidential review period. The Commission's remedial order was delivered to the United States Trade Representative on the date of its issuance.

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, and sections 210.41-51 of the Commission's Rules of Practice and Procedure, 19 CFR 210.41-51.

By order of the Commission.

Issued: July 13, 2006.

Marilyn R. Abbott,

Secretary to the Commission.