[Federal Register Volume 62, Number 15 (Thursday, January 23, 1997)]
[Notices]
[Pages 3525-3526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1638]


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DEPARTMENT OF THE INTERIOR
[Inv. No. 337-TA-334]


Notice of Commission Determination to Review in Part an Initial 
Determination; Schedule for the Filing of Written Submissions on the 
Issue Under Review, and on Remedy, the Public Interest, and Bonding

    In the Matter of certain condensers, parts thereof and products 
containing same, including air conditioners for automobiles.

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 in part the initial determination 
(ID) issued by the presiding administrative law judge (ALJ) on December 
2, 1996, in the above-captioned investigation. The ID found a violation 
of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337.

FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the 
General Counsel, U.S. International Trade Commission, telephone 202-
205-3104.

SUPPLEMENTARY INFORMATION: On December 12, 1991, Modine Manufacturing 
Co. filed a complaint with the Commission alleging a violation of 
section 337 by respondents Showa Aluminum Corporation, Showa Aluminum 
Corporation of America, Mitsubishi Motors Corporation, Mitsubishi 
Motors Sales of America, Mitsubishi Heavy Industries, Ltd., and 
Mitsubishi Heavy Industries America, Inc. (collectively referred to 
herein as respondents). Modine alleged that the respondents had 
infringed claims of Modine's patent, U.S. Letters Patent 4,998,580 (the 
'580 patent). The investigation was assigned an ALJ, who determined 
that there was no infringement, either literally or under the doctrine 
of equivalents, by the respondents. The ALJ further determined that the 
patent was invalid and unenforceable due to inequitable conduct. On 
July 30, 1993, the Commission reversed the ALJ's findings of invalidity 
and inequitable conduct, but adopted her findings and conclusions on 
the infringement issues.
    Modine appealed the Commission's finding of no infringement, and 
thus no violation of section 337, to the U.S. Court of Appeals for the 
Federal Circuit (Federal Circuit). In the same appeal, the respondents 
challenged the Commission's findings upholding the validity and 
enforceability of the '580 patent. On February 5, 1996, the Federal 
Circuit reversed the Commission's claim interpretation and remanded the 
investigation to the Commission for redetermination of the issues of 
literal infringement and infringement under the doctrine of 
equivalents. Modine Manufacturing Co. v. U.S.I.T.C., 75 F.3d 1545, 1549 
(Fed. Cir. 1996). The court affirmed the Commission's determination in 
all other respects. Id.
    On May 31, 1996, the Commission issued an order remanding the 
Condensers investigation to the Office of Administrative Law Judges. 
The order provided that the presiding ALJ conduct further proceedings 
in accordance with the Federal Circuit's decision in Modine and issue 
an ID on violation, preferably within six months. The Commission's 
order also directed the ALJ to issue a recommended determination (RD) 
on the issues of remedy and bonding two weeks after the ID issued. On 
December 2, 1996, the ALJ issued an ID finding a violation of section 
337 by respondents. On December 12, 1996, respondents and the 
Commission investigative attorney (IA) filed separate petitions for 
review. Complainant Modine filed a petition for review contingent on 
the Commission's decision either to grant another party's petition for 
review or to review the ID on its own motion. All parties filed 
responses to each petition on December 19, 1996. The ALJ issued his RD 
on remedy and bonding on December 16, 1996.
    Having examined the record in this investigation, including the ID, 
the Commission has determined to review the reasoning supporting the 
ALJ's finding that the proper estoppel point for the Cat condenser is 
0.04822 inch. The Commission has determined not to review the ID in all 
other respects. On review, the Commission will consider whether the 
0.04822 inch measurement is properly considered law of the case, given 
that the Commission's previous finding that the Cat condenser's 
hydraulic diameter was 0.04822 inch was affirmed by the Federal Circuit 
when it affirmed the Commission's findings on the scope and content of 
the prior art. Modine, 75 F. 3d at 1549.
    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 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

[[Page 3526]]

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 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 issue under review. The submissions 
should be concise and thoroughly referenced to the record in this 
investigation, including, where necessary, 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 
December 16, 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 January 30, 1997. 
Reply submissions must be filed no later than the close of business on 
February 6, 1997. 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 C.F.R. 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, as amended (19 U.S.C. 1337), and sections 
210.45-.51 of the Commission's Rules of Practice and Procedure (19 
C.F.R. 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 at 202-205-1810.

    Issued: January 16, 1997.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 97-1638 Filed 1-22 97; 8:45 am]
BILLING CODE 7020-02-P