E6-16078. In the Matter of Certain Laminated Floor Panels; Notice of Commission Determination to Review Portions of a Final Initial Determination; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, ...

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined to review portions of the final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) on July 3, 2006, in the above-captioned investigation. The Commission has also determined to extend the target date for completion of the investigation until November 21, 2006.

FOR FURTHER INFORMATION CONTACT:

Michael Haldenstein, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone [phone]. Copies of the ALJ's 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 [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://edis.usitc.gov. 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 investigation on July 29, 2005, based on a complaint filed by Unilin Beheer B.V., Flooring Industries Ltd., and Unilin Flooring N.C. LLC (collectively “Unilin”). 70 FR 44694 (August 3, 2005). The complaint (as amended) alleged violations of section 337 of the Tariff Act of 1930 (“section 337”) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain laminated floor panels by reason of infringement of one or more of claims 1, 14, 17, 19, 20, 21, 37, 52, 65, and 66 of U.S. Patent No. 6,006,486 (“the ‘486 patent”), claims 1, 2, 10, 13, 18, 19, 22, 23, 24, and 27 of U.S. Patent No. 6,490,836 (“the '836 patent”), claims 1-6 of U.S. Patent No. 6,874,292 (“the ‘292 patent”), and claims 1, 5, 13, 17, 27, and 28 of U.S. Patent No. 6,928,779 (“the ‘779 patent”). The investigation was subsequently terminated with respect to the ‘486 patent. The Commission named as respondents 32 companies located in Canada, China, South Korea, Malaysia, and the United States. Id. Two respondents have been terminated from the investigation as a result of settlement agreements. The administrative law judge set October 3, 2006, as the target date for completion of the investigation.

On July 3, 2006, the ALJ issued his final ID, including his recommended determination on remedy and bonding. The complainants, the Commission investigative attorney (“IA”), and several respondents have petitioned for review of various portions of the ID.

Having considered the ID, the petitions for review, the responses thereto, and other relevant portions of the record, the Commission has determined to review those portions of the ALJ's final ID concerning: (1) Construction of claim 1 of the '836 patent and claim 4 of the ‘292 patent, (2) infringement of claims 1 and 2 of the ‘836 patent and claims 3 and 4 of the ‘292 patent; (3) infringement by the defaulting respondents; (4) invalidity of the asserted claims of the ‘779 patent; and (5) the validity of the asserted claims of the ‘836 and ‘292 patents to the extent implicated by the Commission's review described in item (1).

On review, the Commission requests briefing based on the evidentiary record. In particular, the Commission is interested in briefing on the following issues: In connection with issue (1), whether the location of the “elastically bendable portion” of the lower lip is limited to a particular portion of the lip (as discussed by the IA in his Petition for Review at p. 14, n.11); in connection with issue (2), the reliability of Dr. Loferski's bent lower lip test and the results of other experts' tests for a bent lower lip in the accused products; in connection with issue (2), whether the bent lower lip should be analyzed as a cantilevered beam; in connection with issue (2), whether the evidence was sufficient to prove that the lower lip remains in the bent position during lateral shifting of the coupled panels; in connection with issue (3), the legal and policy issues the Commission should consider with respect to infringement by defaulting respondents.

In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in respondents 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 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 In the Matter of Certain Devices for Connecting Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December 1994) (Commission Opinion).

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 bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed. The Commission also requests that complainants provide the expiration dates of the asserted patents and the HTSUS numbers of the allegedly infringing goods.

Written Submissions: The parties to the investigation are requested to file written submissions on the issues under review. The submissions should be concise and thoroughly referenced to the record in this investigation. 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 3, 2006, 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 close of business on October 10, 2006. Reply submissions must be filed no later than the close of business on October 17, 2006. No further submissions on these issues will be permitted unless otherwise ordered by the Commission.

Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. 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 section 201.6 of the Commission's Rules of Practice and Procedure, 19 CFR 201.6. Documents for which confidential treatment by the Commission is sought will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary.

The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42-.46 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-.46).

By order of the Commission.

Issued: September 25, 2006.

Marilyn R. Abbott,

Secretary to the Commission.