02-27435. Certain Video Game Games Systems and Components Thereof; Notice of Commission Decision Not to Review an Initial Determination Finding the Sole Respondent in Default, and Request for Submissions on Remedy, the Public Interest, and Bonding

AGENCY:

International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission (“the Commission”) has determined not to review the presiding administrative law judge's (“ALJ's”) initial determination (“ID”) finding respondent Ultimate Game Club (“UGC”) in default. In connection with final disposition of the investigation, the Commission is requesting briefing on remedy, the public interest, and the appropriate bond during the period of Presidential review.

FOR FURTHER INFORMATION CONTACT:

Andrea C. Casson, 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-ON-LINE) at http://dockets.usitc.gov/​eol/​public. 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 voted to institute this investigation on July 19, 2002, based on a complaint against UGC filed by Microsoft Corporation of Redmond, Washington. 67 FR 48949 (July 26, 2002). The complaint alleged violations of section 337 of the Tariff Act of 1930 in the importation into the United States, sale for importation, and sale within the United States after importation of certain video game systems, accessories, or components by reason of infringement of the claims of U.S. Design Patent No. D452,282 and U.S. Design Patent No. D452,534.

UGC did not file responses to the complaint, the notice of investigation, or Microsoft's discovery requests. On August 24, 2002, Microsoft moved pursuant to section 337(g) and Commission rule 210.16(b) for issuance of an order directing UGC to show cause why it should not be found in default. Microsoft's motion also requested that, upon UGC's failure to show cause, an ID be issued finding UGC in default, and that a limited exclusion order and cease and desist order be issued immediately against UGC. On August 23, 2002, the Commission investigative attorney (IA) filed a response supporting the request for a show cause order. On September 5, 2002, the presiding ALJ issued Order No. 4, which ordered UGC to show cause by September 18, 2002, why it should not be found in default. UGC did not respond to the order to show cause.

On September 27, 2002, the IA filed a letter supporting a finding of default against UGC. On October 9, 2002, the ALJ issued an ID (Order No. 5) finding UGC in default. No petitions for review of the ID were filed. Under Commission rule 210.16(b)(3), 19 CFR 210.16(b)(3), UGC is deemed to have waived its right to appear, to be served with documents, and to contest the allegations at issue in this investigation. Section 337(g)(1), 19 USC 1337(g)(1) and Commission rule 210.16 (c), 19 CFR 210.16(c), authorize the Commission to order limited relief against a respondent found in default unless, after consideration of public interest factors, it finds that such relief should not issue. In this investigation, UGC has been found in default and Microsoft has requested issuance of a limited exclusion order that would deny entry to certain video game systems, accessories, or components imported by UGC. Microsoft also requests issuance of a cease and desist order. If the Commission decides to issue remedial orders against UGC, it must consider what the amount of the bond should be during the Presidential review period. In connection with the final disposition of this investigation, the potential remedies are a cease and desist order and a limited exclusion order that could result in the exclusion from entry into the United States of certain video game systems, accessories, or components imported by UGC. Accordingly, the Commission is interested in receiving written submissions that address whether either or both such orders should be issued. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, it 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 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 a remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider in this investigation include the effect that remedial 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 issues a limited exclusion order, 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 the 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 remedy, the public interest, and bonding. Complainant and the Commission investigative attorney are also requested to submit proposed remedial orders for the Commission's consideration. The written submissions and proposed limited exclusion orders must be filed no later than close of business on [the date that is two weeks after issuance of this notice]. Reply submissions, if any, must be filed no later than the close of business on [the date that is three weeks after issuance of this notice]. No further submissions on these issues will be permitted unless otherwise ordered by the Commission. 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 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. This action is taken under the authority of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, and sections 210.16 and 210.42 of the Commission's rules of practice and procedure, 19 CFR 210.16 and 210.42.

By order of the Commission.

Issued: October 23, 2002.

Marilyn R. Abbott,

Secretary to the Commission.