[Federal Register Volume 60, Number 109 (Wednesday, June 7, 1995)]
[Notices]
[Pages 30099-30100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13902]



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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-349]


Certain Diltiazem Hydrochloride and Diltiazem Preparations; 
Notice of Commission Decisions Affirming in Part, Taking No Position in 
Part, and Vacating in Part an Initial Determination; Granting of a 
Joint Motion To Terminate Certain Respondents on the Basis of a 
Settlement Agreement; Denial of a Motion To Intervene

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to affirm the claim interpretation and 
infringement findings and to take no [[Page 30100]] position on the 
issues of validity and unenforceability in the initial determination 
(ID) issued by the presiding administrative law judge (ALJ) on February 
1, 1995, in the above-captioned investigation in accordance with Beloit 
Corporation v. Valmet Oy, TVW Paper Machines, Inc. and the United 
States International Trade Commission, 742 F.2d 1421 (Fed. Cir. 1984). 
The Commission has also vacated as moot ALJ Order No. 52. Finally, the 
Commission has determined to grant a joint motion to terminate certain 
respondents on the basis of a settlement agreement, and to deny a 
motion to intervene in the investigation.

FOR FURTHER INFORMATION CONTACT: Cynthia P. Johnson, Esq., Office of 
the General Counsel, U.S. International Trade Commission, telephone 
202-205-3098.

SUPPLEMENTARY INFORMATION: On February 1, 1993, Tanabe Seiyaku Co., 
Ltd. (Tanabe) and Marion Merrell Dow, Inc. (MMD) (collectively 
``complainants'') filed a complaint under section 337 alleging unfair 
acts in the importation and sale of diltiazem hydrochloride and 
diltiazem preparations (``diltiazem'') by nine proposed respondents: 
(1) Abic Ltd. of Netanya, Israel (``Abic''); (2) Gyma Laboratories of 
America, Inc. of Garden City, New York (``Gyma''); (3) Profarmaco Nobel 
SRL of Milan, Italy; (4) Mylan Pharmaceuticals, Inc. of Morgantown, 
West Virginia; (5) Mylan Laboratories, Inc. of Pittsburgh, Pennsylvania 
(collectively referred to as the ``Profarmaco respondents''); (6) Orion 
Corporation Fermion of Espoo, Finland; (7) Interchem Corporation of 
Paramus, New Jersey; (8) Copley Pharmaceuticals, Inc. of Canton, 
Massachusetts; and (9) Rhone-Poulenc Rorer, Inc. of Collegeville, 
Pennsylvania (collectively referred to as the ``Fermion respondents''). 
Complainants alleged infringement of claim 1 of U.S. Letters Patent 
4,438,035 (``the '035 patent''). On March 25, 1993, the Commission 
voted to institute an investigation of the complaint of Tanabe and MMD. 
58 FR 16846 (March 31, 1993).
    On May 6, 1993, complainants moved to amend the complaint and 
notice of investigation to add Plantex U.S.A., Inc. as a respondent. On 
May 20, 1993, the ALJ issued an ID amending the complaint and notice of 
investigation to add Plantex as a respondent. Plantex participated in 
the investigation with respondent Abic, Inc.
    On February 1, 1995, the presiding ALJ issued his final ID finding 
that there was no violation of section 337. He found that claim 1 of 
the '035 patent was not infringed by any of respondents' processes, 
that claim 1 was invalid as obvious under 35 U.S.C. 103, and that the 
'035 patent was unenforceable because of complainants' inequitable 
conduct during reexamination proceedings before the U.S. Patent and 
Trademark Office. In a separate order (Order No. 52), issued on the 
same date, the ALJ granted respondents' motion for evidentiary 
sanctions against complainants.
    On March 30, 1995, the Commission determined to review the 
following issues in the ID: (1) Claim interpretation; (2) whether claim 
1 of the '035 patent is infringed by respondents' processes; (3) 
whether claim 1 of the '035 patent is invalid as obvious under 35 
U.S.C. 103; (4) whether the '035 patent is unenforceable; and (5) Order 
No. 52. Order No. 52 was considered to be part of the ID. The 
Commission posed several specific questions for the parties. The 
Commission also requested information on the status of the Abic 
respondents.
    On April 13, 1995, complainants and Abic Ltd. and Plantex U.S.A. 
(``the Abic respondents'') filed a joint motion to terminate the 
investigation as to the Abic respondents on the basis of a settlement 
agreement. Additionally, on April 13, 1995, Mr. James Gambrell filed a 
motion to intervene in the investigation.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930 (19 U.S.C. 1337) and Commission interim rule 210.56 
(19 CFR 210.56).
    Copies of the Commission's Order, the Commission Opinion in support 
thereof, the nonconfidential version of the 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 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: June 1, 1995.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 95-13902 Filed 6-6-95; 8:45 am]
BILLING CODE 7020-02-P