[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Notices]
[Pages 45446-45447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22786]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-334 (Remand)]
Notice of Issuance of Limited Exclusion Order and Termination of
Investigation; Denial of Petition for Reconsideration
In the matter of Certain condensers, parts thereof and products
containing same, including air conditioners for automobiles.
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has issued a limited exclusion order in the above-captioned
investigation and terminated the investigation. The Commission has also
determined to deny respondents' petition for reconsideration of the
Commission's January 16, 1997, determination that a violation of
section 337 of the Tariff Act of 1930 has occurred. (62 FR 3525-6)
(January 23, 1997).
FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
S.W., Washington, D.C. 20436, telephone 202-205-3104.
SUPPLEMENTARY INFORMATION: On December 12, 1991, Modine Manufacturing
Co. filed a complaint with the Commission alleging a violation of
section 337 by respondents Showa Aluminum Corporation (Japan), Showa
Aluminum Corporation of America, Mitsubishi Motors Corporation,
Mitsubishi Motors Sales of America, Mitsubishi Heavy Industries, Ltd.,
and Mitsubishi Heavy Industries America, Inc. (collectively referred to
herein as respondents). Modine alleged that respondents had infringed
claims of Modine's patent, U.S. Letters Patent 4,998,580 (the '580
patent). The Commission concluded the investigation with a finding of
no infringement, and hence a determination of no violation of section
337.
Modine appealed the Commission's determination to the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit). On February 5, 1996,
the Federal Circuit reversed the Commission's claim interpretation and
remanded the investigation to the Commission for redetermination of the
issues of literal infringement and infringement under the doctrine of
equivalents. Modine Manufacturing Co. v. U.S.I.T.C., 75 F.3d 1545, 1549
(Fed. Cir. 1996). The court affirmed the Commission's determination in
all other respects. Id.
On May 31, 1996, the Commission issued an order remanding the
Condensers investigation to the Office of Administrative Law Judges.
The Commission's order also directed the ALJ to issue a recommended
determination (RD) on the issues of remedy and bonding two weeks after
the issuance of the ID. On December 2, 1996, Judge Luckern issued an ID
finding a violation of section 337 by respondents. On December 12,
1996, respondents and the Commission investigative attorney (IA) filed
separate petitions for review. Complainant Modine filed a petition for
review contingent on the Commission's decision either to grant another
party's petition for review or to review the ID on its own motion. All
parties filed responses to each petition on December 19, 1996. The ALJ
issued his RD on remedy and bonding on December 16, 1996.
On January 16, 1997, the Commission determined to review only the
reasoning supporting the ALJ's determination that the range of
equivalents was limited by the 0.4822 inch hydraulic diameter given for
the prior art Cat condenser. 62 FR 3525-6 (Jan. 23, 1997). Since the
Commission did not review the ID's determination of the range of
equivalents, the ALJ's determination that there had been a violation
with respect to two models of the accused condensers, the Mazda 929 and
the Audi 90, became the Commission's determination by operation of law.
19 C.F.R. 210.42(h). The Commission's notice of review requested
written submissions on the issue under review, and on remedy, the
public interest, and bonding. Submissions were received from Modine,
the Showa respondents, the Mitsubishi respondents, and the IA on
January 30, 1997. Complainant, the Showa respondents, and the IA filed
reply submissions on February 6, 1997.
On March 10, 1997, respondents filed a petition for reconsideration
of the Commission's determination not to review the ALJ's determination
that section 337 had been violated. Respondents' petition was based on
the recent Supreme Court decision in Warner-Jenkinson, Inc. v. Hilton-
Davis Chemical Company, 117 S.Ct. 1040 (U.S. Mar. 3, 1997), involving
the doctrine of equivalents. Respondents argued that the case is
controlling authority which is contrary to the law applied by the
Federal Circuit in the Modine decision. Complainant Modine and the IA
filed oppositions to the petition on March 17, 1997. The Commission has
determined to deny respondents' petition.
After having reviewed the record in this investigation, including
the written submissions of the parties, the Commission made its
determinations on the issues of remedy, the public interest, and
bonding. The Commission determined that the appropriate form of relief
is a limited exclusion order prohibiting the unlicensed importation for
consumption of infringing condensers, parts thereof, and products
containing same manufactured and/or imported by or on behalf of the
Showa respondents. The order applies to any of the affiliated
companies, parents, subsidiaries, licensees, contractors, or other
related business entities, or their successors or assigns of Showa.
The Commission also determined that the public interest factors
enumerated in 19 U.S.C. 1337(d) do not preclude the issuance of the
limited exclusion order, and that the bond during the Presidential
review period shall be in the amount of five percent of the entered
value of the condensers in question. Condenser parts and products
containing condensers are entitled to entry into the United States
without bond during the Presidential review period.
[[Page 45447]]
This action is taken under the authority of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), and section 210.58 of
the Commission's Interim Rules of Practice and Procedure (19 C.F.R.
210.58)(1994).
Copies of the Commission order, the Commission opinion in support
thereof, 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, S.W.,
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.
Issued: August 20, 1997.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 97-22786 Filed 8-26-97; 8:45 am]
BILLING CODE 7020-04-P
