[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Notices]
[Pages 38473-38474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18796]


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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-376]


Certain Variable Speed Wind Turbines and Components Thereof; 
Notice of Commission Decision To Review Portions of an Initial 
Determination; and Schedule for the Filing of Written Submissions on 
the Issues Under Review, and on Remedy, the Public Interest, and 
Bonding

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 determined to review certain portions of the initial 
determination (ID) issued by the presiding administrative law judge 
(ALJ) on May 30, 1996, in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Mark D. Kelly, Esq., Office of the 
General Counsel, U.S. International Trade Commission, telephone 202-
205-3106.

SUPPLEMENTARY INFORMATION: This patent-based section 337 investigation 
was instituted by the Commission on May 30, 1995 (60 F.R. 28167 (May 
30, 1995)) based on a complaint filed by Kenetech Windpower, Inc., of 
Livermore, CA. Complainant alleged a violation of section 337 in the 
importation, sale for importation, and/or the sale within the United 
States after importation of certain variable speed wind turbines and 
components thereof, by reason of infringement of claim 131 of U.S. 
Letters Patent 5,083,039 (``the `039 patent''), and claim 51 of U.S. 
Letters Patent 5,225,712 (``the `712 patent''), both patents owned by 
complainant. The Commission's notice of investigation named Enercon 
GmbH of Aurich, Germany and The New World Power Corporation of Lime 
Rock, Connecticut, as respondents.
    The ALJ held an evidentiary hearing on the merits which concluded 
on February 6, 1996, and issued his final ID finding a violation of 
section 337 on May 30, 1996. He found that there had been a sale for 
importation of the accused products; that claim 131 of the `039 patent 
has been literally infringed; that claim 51 of the `712 patent was not 
infringed, either literally or under the doctrine of equivalents; and 
that complainant's activities with respect to the `039 and `712 patents 
satisfy the domestic industry requirements of section 337.
    Having examined the record in this investigation, including the ID, 
the Commission has determined to review the issue of interpretation of 
claim 131 of the `039 patent and the issue of infringement of that 
claim in light of that interpretation. The Commission has determined 
not to review the remainder of the ID. On review, the Commission is 
particularly interested in answers to the following questions:
    The U.S. Court of Appeals for the Federal Circuit stated in Markman 
v. Westview Instruments, Inc., 52 F.3d 967, 34 USPQ2d 1321 (Fed. Cir. 
1995)( en banc) aff'd ____ U.S. ____, 116 S.Ct. 1384, 64 U.S.L.W. 4263 
(April 23, 1996):

    ``Extrinsic evidence may demonstrate the state of the prior art 
at the time of the invention. It is useful `to show what was then 
old, to distinguish what was new, and to aid the court in the 
construction of the patent.' ''

Markman, supra at 34 USPQ2d 1330 (citation omitted).
    Relying only upon the excerpts of record from the Mohan et al. 
reference (X-182C):
    1. Explain with regard to claim 131, how, if at all, the Mohan et 
al. reference may be used to demonstrate the state of the prior art at 
the time of the claimed invention; i.e., how, if at all, the Mohan et 
al. reference may be used to show

[[Page 38474]]

what was old at the time of the `039 invention, in order to distinguish 
what was new. Explain in detail how, if at all, the Mohan et al. 
reference should be used to aid in interpreting claim 131.
    2. What are the differences, if any, between what the Mohan et al. 
reference discloses to one of ordinary skill in the art at the time of 
the claimed invention and the invention of claim 131, as interpreted by 
the ALJ?
    3. What are the differences, if any, between what the Mohan et al. 
reference discloses to one of ordinary skill in the art at the time of 
the claimed invention and the invention of claim 131, as interpreted by 
respondents?
    In connection with 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 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 are 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.
    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. The Commission notes the pending 
bankruptcy petition of complainant and asks the parties to address its 
relevance, if any, to the question of remedy.
    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 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 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, including references to specific exhibits and testimony. 
Additionally, the parties to the investigation, interested government 
agencies, and any other interested persons are encouraged to file 
written submissions on the issues of remedy, the public interest, and 
bonding. Such submissions should address the June 12, 1996, recommended 
determination by the ALJ on remedy 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 remedial orders must be filed no later than 
the close of business on July 31, 1996. Reply submissions must be filed 
no later than the close of business on August 7, 1996. No further 
submissions 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 19 CFR 201.6. Documents for which confidential treatment 
is granted by the Commission 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. Sec. 1337) and sections 210.45-.51 of the 
Commission's Rules of Practice and Procedure (19 CFR 210.45-.51).
    Copies of the public 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 the matter can be obtained by contacting the 
Commission's TDD terminal on 202-205-1810.

    Issued: July 17, 1996.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 96-18796 Filed 7-23-96; 8:45 am]
BILLING CODE 7020-02-P