01-22603. In the Matter of Certain Integrated Repeaters, Switches, Transceivers, and Products Containing Same; Notice of Decision Not To Review a Final Initial Determination, and Schedule for Filing of Written Submissions on the Issues of Remedy, ...

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined not to review the final initial determination (“Final ID”) issued by the presiding administrative law judge (“ALJ”) on July 19, 2001, finding a violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned investigation. The Commission also determined to deny the petition of respondent Altima Communications Inc. to supplement the evidentiary record in the investigation, and to grant the motion of complainants Intel Corporation and Level Communications, Inc. to strike portions of Altima Communications, Inc.'s petition for review.

FOR FURTHER INFORMATION CONTACT:

Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436, telephone [phone]. Copies of the public versions of the final 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, S.W., Washington, D.C. 20436, telephone [phone]. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on [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-ON-LINE) at http://dockets.usitc.gov/​eol/​public.

SUPPLEMENTARY INFORMATION:

This patent-based section 337 investigation was instituted on August 23, 2000, based upon a complaint filed on July 20, 2000, by Intel Corporation (“Intel”) and Level One Communications, Inc. (“Level One”). 65 FR 51327 (Aug. 23, 2000). The respondent is Altima Communications, Inc. (“Altima”). A second patent-based section 337 investigation naming Altima as a respondent was instituted on April 24, 2000, based upon a complaint filed by Level One on March 23, 2000, and supplemented on April 13, 2000. 65 FR 21789 (Apr. 24, 2000). On August 24, 2000, the ALJ issued an order consolidating the two investigations. From April 16, 2001, through April 30, 2001, the ALJ held an evidentiary hearing. On July 19, 2001, the ALJ issued a final ID finding that respondent Altima violated section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), by infringing certain claims of two of the complainants' asserted patents. The ALJ found that: (1) There has been importation and sale of the accused products; (2) complainants practice the patents in controversy and satisfy the domestic industry requirements of section 337; (3) certain of the claims in issue are valid; (4) the accused imported products directly infringe certain of the claims in issue; and (5) respondent has induced infringement of certain of the claims in issue. Based on these findings, the ALJ concluded there was a violation of section 337. The ALJ recommended issuance of a limited exclusion order.

Complainants Intel and Level One and respondent Altima filed petitions for review of various portions of the Final ID, and opposed each others' petitions for review. The Commission investigative attorney (IA) did not petition for review of the Final ID, but he opposed the other parties' petitions for review.

On August 1, 2001, Altima petitioned the Commission for leave to supplement the evidentiary record of the investigation. On August 8, 2001, Intel and Level One filed their opposition to Altima's petition to supplement, and moved to strike portions of respondent's petition for review related to materials that have not been admitted into evidence and are not part of the evidentiary record created in connection with the instant investigation. On August 13, 2001, the IA filed his opposition to Altima's petition to supplement.

Having examined the record in this investigation, including the Final ID, the petitions for review, and the responses thereto, the Commission determined not to review the Final ID; thus, the Commission has found a violation of section 337. Having also examined Altima's petition to supplement the evidentiary record, Intel and Level One's opposition to Altima's petition to supplement and Intel and Level One's motion to strike, the Commission has determined to deny Altima's petition to supplement and to grant Intel and Level One's motion to strike.

In connection with the final disposition of this investigation, the Commission may issue (1) an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) cease and desist orders that could result in respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of the remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background see the Commission Opinion, In the Matter of Certain Devices for Connecting Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December, 1994).

If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.

If the Commission orders some form of remedy, the President has 60 days to approve or disapprove the Commission's action. During this period, the subject articles would be entitled to enter the United States under a bond, in an amount determined by the Commission and prescribed by the Secretary of Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed.

WRITTEN SUBMISSIONS:

The parties to the investigation, interested government agencies, and any other interested parties are encouraged to file written submissions on the issues of remedy, the public interest, and bonding. Such submissions should address the July 19, 2001, recommended determination by the ALJ on remedy and bonding. Complainants and the Commission investigative attorney are also requested to submit proposed remedial orders for the Commission's consideration. The written submissions and proposed remedial orders must be filed no later than the close of business on September 19, 2001. Reply submissions must be filed no later than the close of business on September 26, 2001. No further submissions on these issues will be permitted unless otherwise ordered by the Commission. The target date for completion of the investigation is October 23, 2001.

Persons filing written submissions must file with the Office of the Secretary the original document and 14 true copies thereof on or before the deadlines stated above. Any person desiring to submit a document (or portion thereof) to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is requested will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary.

This action is taken under the authority of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) and Subpart G of the Commission's Rules of Practice and Procedure (19 CFR Subpart G).

By order of the Commission.

Issued: September 5, 2001.

Donna R. Koehnke,

Secretary.