[Federal Register Volume 62, Number 161 (Wednesday, August 20, 1997)]
[Notices]
[Pages 44291-44292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22052]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-376]
Certain Variable Speed Wind Turbines and Components Thereof;
Notice of Commission Determinations Concerning Federal Circuit Remand
Question and Respondents' Motion To Show Cause and Petition for
Rescission of Limited Exclusion Order
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that, in response to an order issued by
the U.S. Court of Appeals for the Federal Circuit (``the Federal
Circuit'') on April 24, 1997 (the ``remand order''), the U.S.
International Trade Commission determined that the requirement of
section 337(a)(3), 19 U.S.C. Sec. 1337(a)(3), regarding the presence of
a domestic industry is satisfied by the domestic activities of Zond and
the domestic activities of the companies licensed by Zond to practice
the invention of claim 131 of U.S. Letters Patent 5,083,039.
[[Page 44292]]
Thus, the Commission determined that, by virtue of its ownership of the
`039 patent and its licensing of significant domestic activities
practicing that patent, Zond is part of the domestic industry. The
Commission also determined that further proceedings are not necessary
to resolve any factual issues presented by the question posed by the
Court on remand, and to deny respondents' motion to show cause and
their petition to rescind the limited exclusion order. The Commission
will issue an opinion shortly concerning these issues.
FOR FURTHER INFORMATION CONTACT: Jay H. Reiziss, Esq., Office of the
GeneralCounsel, U.S. International Trade Commission, telephone 202-205-
3116.
SUPPLEMENTARY INFORMATION: This patent-based section 337 investigation
was conducted by the Commission in 1995 and 1996 based on a complaint
filed by Kenetech Windpower, Inc., of Livermore, California
(``Kenetech'') to determine whether there was a violation of section
337 in the importation, sale for importation, and/or the sale within
the United States after importation, of certain variable speed wind
turbines and components thereof by reason of infringement of claim 131
of U.S. Letters Patent 5,083,039 (``the `039 patent'') and claim 51 of
U.S. Letters Patent 5,225,712 (``the `712 patent''), both owned by
Kenetech. Enercon GmbH of Aurich, Germany (``Enercon'') and The New
World Power Corporation of Lime Rock, Connecticut were named as
respondents (collectively ``respondents''). The Commission found a
violation of section 337 had occurred and issued a limited exclusion
order. Because Kenetech had filed for bankruptcy under Chapter 11 of
theU.S. Bankruptcy Act by the time the exclusion order was issued, and
had by then ceased manufacturing wind turbines, the Commission required
Kenetech to submit quarterly reports detailing its domestic activities
exploiting the `039 patent.
After the President declined to disapprove the Commission's
determination, Enercon appealed to the Federal Circuit. Subsequently,
in its March 31, 1997, quarterly report, Kenetech informed the
Commission that it had sold the `039 patent to Zond Energy Systems,
Incorporated (``Zond''). That quarterly report states that Kenetech
continues to exploit the `039 patent, apparently under license from
Zond.
Before any briefs were submitted in the appeal, but after the time
for filing a motion to intervene had expired, Zond moved to intervene,
asserting that it had standing to intervene based on its ownership of
the patent in issue. Enercon opposed Zond's intervention, arguing that
Zond must first show that it qualifies as a domestic industry under
section 337 in order to enter an appearance in the appeal, and that
Zond had failed to show it had the requisite standing to participate in
the appeal. On April 24, 1997, the Federal Circuit issued an order
remanding the case to the Commission for the Commission to determine in
the first instance: (1) ``whether Zond should be substituted for
Kenetech;'' and (2) ``whether Zond qualifies as a domestic industry.''
The Commission reopened this investigation, reinstated the
protective order issued in this investigation, and requested comments
from the parties' counsel on the questions posed by the Federal Circuit
remand. On June 12, 1997, Zond filed a motion to intervene in this
investigation. On July 8, 1997, the Commission issued an order
permitting Zond to intervene in the remand proceeding as a co-
complainant. Zond's motion effectively presented the Commission with
the same issue posed by the Federal Circuit's first remand question.
The Commission has concluded that its decision on the motion to
intervene is equally applicable to the first remand issue. Thus, in
response to the first of the Federal Circuit's remand questions, the
Commission has determined that, rather than substituting Zond for
Kenetech, Zond should be permitted to intervene as a co-complainant.
See Order Granting Motion to Intervene of Patent Owner Zond Energy
Systems, Inc. (July 8, 1997).
On June 16, 1997, respondents and the Commission investigative
attorney (``IA'') filed comments on the remand issues, and on June 23,
1997, all parties filed reply comments.
On June 27, 1997, respondents filed a motion for an order to show
cause why the law firm of Howrey & Simon should not be deemed
continuing counsel to Kenetech. Howrey & Simon and the IA subsequently
responded to that motion. On July 9, 1997, Howrey & Simon filed a
notice of withdrawal as counsel to Kenetech.
On July 2, 1997, respondents filed a petition under Commission rule
210.76(a)(2) seeking rescission of the exclusion order issued by the
Commission on August 30, 1996. Both Zond and the IA filed responses in
opposition to that petition.
Copies of the Commission's order, the public version of the opinion
in support of that order 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, D.C. 20436, telephone 202-205-2000. Hearing-
impaired persons are advised that information on this matter can be
obtained by contacting the Commission's TDD terminal on 202-205-1810.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. Sec. 1337), and section
210.76 of the Commission's Rules of Practice and Procedure (19 C.F.R.
Sec. 210.76).
Issued: August 11, 1997.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 97-22052 Filed 8-19-97; 8:45 am]
BILLING CODE 7020-02-P
