[Federal Register Volume 66, Number 249 (Friday, December 28, 2001)]
[Notices]
[Pages 67302-67304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31978]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-443]


Certain Flooring Products; Notice of Commission Decisions to 
Review Portions of a Final Initial Determination and to Extend by 30 
Days the Target Date for Completion of the Investigation; Schedule for 
Written Submissions on the Issues Under Review and on Remedy, the 
Public Interest, and Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to grant Roysol's motion to join the November 
30, 2001, motion to strike and alternative motion to reply of Unilin 
and Pergo; to grant complainants' motion to respond to the November 30, 
2001, motion of Unilin and Pergo; to grant Unilin and Pergo's motion to 
reply; to deny Unilin and Pergo's motion to strike; to extend the 
target date for completion of the investigation by 30 days to March 7, 
2002; and to review portions of a final initial determination (ID) of 
the presiding administrative law judge (ALJ) finding no violation of 
section 337 of the Tariff Act of 1930, as amended, in the above-
captioned investigation.

FOR FURTHER INFORMATION CONTACT: Clara Kuehn, Esq., or David Wilson, 
Esq., Office of the General Counsel, U.S. International Trade 
Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 
205-3012 and (202) 708-2310, respectively. Hearing-impaired persons are 
advised that information on this matter can be obtained by contacting 
the Commission's TDD terminal on 202-205-1810. General information 
concerning the Commission may also be obtained by accessing its 
Internet server (http://www.usitc.gov).
    Copies of the public version 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 202-205-2000.

SUPPLEMENTARY INFORMATION: The Commission ordered the institution of 
this investigation on December 27, 2000, based on a complaint filed on 
behalf of Alloc, Inc., Racine, Wisconsin; Berry Finance N.V., 
Oostrozebeke, Belgium; and Valinge Aluminum AB, Viken, Sweden 
(collectively ``complainants''). 66 FR 1155 (2001). The notice of 
investigation was published in the Federal Register on January 5, 2001. 
Id. The complaint, as supplemented, alleged violations of section 337 
in the importation, the sale for importation, and the sale within the 
United States after importation of certain flooring products by reason 
of infringement of claims 1-3, 5-6, 8-12, 14-15, 17-36, and 38-41 of 
U.S. Letters Patent 5,860,267 (``the '267 patent'') and claims 1-14 of 
U.S. Letters Patent 6,023,907 (``the '907 patent''). Id. The Commission 
named seven respondents: Unilin Decor N.V., Wielsbeke, Belgium; BHK of 
America, Inc., Central Valley, NY; Meister-Leisten Schulte GmbH, 
Ruthen, Germany (collectively, Unilin); Pergo, Inc., Raleigh, NC 
(``Pergo''); Akzenta Paneele + Profile GmbH, Kaisersesch, Germany 
(``Akzenta''); Tarkett, Inc., Whitehall, PA; and Roysol, Saint-
Florentin, France (``Roysol'').
    On March 5, 2001, the ALJ issued an ID (ALJ Order No. 8) granting 
complainants' motion to amend the complaint and notice of investigation 
to add allegations of infringement of claims 1, 8, 13-14, 21, 26-27, 
34, 39-41, and 48 of U.S. Letters Patent 6,182,410 (``the '410 
patent''). On July 10, 2001, the ALJ issued an ID (ALJ Order No. 26) 
granting complainants' motion for summary determination on the economic 
prong of the domestic industry requirement. Those IDs were not reviewed 
by the Commission. An evidentiary hearing was held from July 26, 2001, 
through August 1, 2001. The ALJ heard closing arguments on October 16, 
2001. On October 19, 2001, the ALJ issued an ID (ALJ Order No. 30) 
granting complainants' unopposed motion to terminate the investigation 
with respect to claims 1-3, 5-6, 8-12, 14-15, 17-18, 20-22, 24-36, 38, 
and 40-41 of the '267 patent; claims 4-14 of the '907 patent; and 
claims 8, 13-14, 21, 27, 34, and 40 of the '410 patent. On October 25, 
2001, the ALJ issued an ID (ALJ Order No. 31) terminating the 
investigation as to respondent Tarkett, Inc. Those IDs were not 
reviewed by the Commission. The only asserted claims remaining in the 
investigation are claims 19, 23, and 39 of the '267 patent, claims 1-3 
of the '907 patent, and claims 1, 26, 39, 41, and 48 of the '410 
patent.
    The ALJ issued his final ID on November 2, 2001, concluding that 
there was no violation of section 337, based on the following findings: 
(a) Complainants have not established that any of the asserted claims 
are infringed by any of the respondents; (b) respondents have failed to 
establish that the asserted claims of each of the '267, '907, and '410 
patents are not valid; (c) no domestic industry exists that exploits 
any of the '267, '907, and '410 patents; and (d) it has not been 
established that complainants misused any of the patents in issue. The 
ALJ also made recommendations regarding remedy and bonding in the event 
the Commission concludes there is a violation of section 337.
    On November 15, 2001, complainants and the Commission investigative 
attorney (``IA'') petitioned for review of the ID. On November 23, 
2001, respondents Unilin, Pergo, Roysol, and Akzenta, and complainants 
filed responses to the petitions for review. On November 30, 2001, 
Unilin and Pergo moved to strike portions of complainants' response of 
November 23, 2001, and in the alternative moved for leave to reply to 
complainants' response. On December 4, 2001, Respondent Roysol moved to 
join the motion to strike. On December 10, 2001, complainants responded 
to the motion to strike. The Commission has determined to grant 
Roysol's motion to join, to grant Unilin and Pergo's motion to reply 
and complainants' motion to respond, and to deny the motion to strike.

[[Page 67303]]

    Having examined the record in this investigation, including the ID, 
the petitions for review, and the responses thereto, the Commission has 
determined to review:
    (1) The ID's construction of the asserted claims of the '410 
patent;
    (2) The ID's construction of the asserted claims of the '267 and 
'907 patents, except not to review the ID's construction of those 
claims apart from 35 U.S.C. 112, para. 6;
    (3) The ID's infringement conclusions with respect to the '410, 
'267, and '907 patents, except not to review the ID's conclusions that 
(a) the asserted claims of the '267 and '907 patents are not infringed 
when those claims are construed apart from 35 U.S.C. 112, para. 6 and 
(b) complainants have not established that there are no substantial 
noninfringing uses for the accused products and hence there is no 
contributory infringement;
    (4) The ID's validity conclusions with respect to the '267, '410, 
and '907 patents, except not to review the ID's validity conclusions 
when the asserted claims of the '267 and '907 patents are construed 
apart from 35 U.S.C. 12, para. 6;
    (5) The ID's conclusions with respect to the technical prong of the 
domestic industry requirement with respect to the '410, '267, and '907 
patents, except not to review the ID's conclusions that complainants 
have failed to establish the technical prong of the domestic industry 
requirement when the asserted claims of the '267 and '907 patents are 
construed apart from 35 U.S.C. 112, para. 6.
    The Commission has also determined to review the procedural 
question of whether complainants waived the issue of whether the 
accused products infringe the asserted claims of the patents in 
controversy to the extent that the asserted claims are construed under 
35 U.S.C, 112, para. 6 to cover equivalents of the structure disclosed 
in the specification, viz., equivalents of a mechanical joint with 
play, by failing to raise the issue before the ALJ.
    The Commission has determined not to review the remainder of the 
ID, including the ID's conclusions with respect to patent misuse.
    On review, the Commission requests briefing based on the 
evidentiary record on all issues under review and is particularly 
interested in receiving answers to the following questions, with all 
answers cited to the evidentiary record. For purposes of focusing the 
briefing, the questions present tentative resolution of some claim 
construction issues (e.g., applicability of 35 U.S.C. 112, para. 6 and 
identification of claimed functions associated with means-plus-function 
limitations).

    1. Have complainants waived the issue of whether, if the asserted 
claims of the '907, '267, or

'410 patents are construed under 35 U.S.C. 112, para. 6 to require 
``play,'' flooring panels without play are ``equivalent'' for 
purposes of 112, para. 6 to flooring panels with ``play'' by failing 
to raise the issue before the ALJ?

    2. Assuming for purposes of this question that 35 U.S.C. 112, 
para.6 applies to the limitation ``the

two panels are * * * mechanically locked to each other in a second 
direction, that is at right angles to said first direction and to 
the adjacent joint edges, as a result of a first locking member 
disposed at one of the adjacent edges being connected to a second 
locking member disposed at the other one of the adjacent edges, and 
* * * being displaceable in relation to each other in the direction 
of the adjacent joint edges'' in claim 1 of the '907 patent (and 
dependent claims 2 and 3), and that the function of the ``first 
locking member'' and ``second locking member'' is that when the 
locking members are connected, ``the two panels are * * * 
mechanically locked to each other'' in the horizontal direction at 
right angles to the adjacent joint edges and the two panels are 
``displaceable in relation to each other in the direction of the 
adjacent joint edges'':

    What are the corresponding structure(s) disclosed in the 
specification that perform the function identified above?
    Construing the limitation under 35 U.S.C. 112, para.6 using the 
above-stated function and the corresponding structure(s) that you 
identified, please answer the following questions: (In your response, 
please address the 35 U.S.C. 112, para.6 equivalents to the 
corresponding structures)
    (a) Do respondents infringe any of the three claims?
    (b) Are the claims invalid?
    (c) Do complainants meet the technical prong of the domestic 
industry requirement as to claims 1, 2, or 3?
    3. Assuming that 35 U.S.C. 112, para.6 applies to the ``locking 
means'' of claim 1 of the '410 patent, and that the function of the 
claimed ``locking means'' is (a) ``Forming a first mechanical 
connection for locking said adjacent edges to each other in a vertical 
direction,'' (b) ``forming a second mechanical connection for locking 
said adjacent edges to each other in a horizontal direction at right 
angles to said edges,'' (c) ``operat[ing] as a one-way snap lock in 
said horizontal direction,'' and (d) ``enabl[ing] said adjacent 
panels,'' when connected by the first and second connections, to be 
rotated ``so as to move the locking element out of the locking groove 
in order to unlock said one-way snap lock'':
    What are the corresponding structure(s) disclosed in the 
specification that perform the function identified above?
    Construing the limitation under 35 U.S.C. 112, para.6 using the 
above-stated function and the corresponding structure(s) that you 
identified, please answer the following questions: (In your response, 
please address the 35 U.S.C. 112, para.6 equivalents to the 
corresponding structures)
    (a) Do respondents' products infringe claim 1?
    (b) Is claim 1 invalid?
    (c) Do complainants meet the technical prong of the domestic 
industry requirement as to claim 1?
    4. Assuming for purposes of this question that 35 U.S.C. 112, 
para.6 applies to the ``locking means'' of claim 26 of the '410 patent, 
and that the function of the claimed ``locking means'' is (a) 
``releasably locking,'' (b) ``forming a first mechanical connection for 
locking said adjacent first edges to each other in a vertical 
direction,'' (c) ``forming a second mechanical connection for locking 
said adjacent short edges to each other in a horizontal direction at 
right angles to said first edges,'' and (d) ``operat[ing] as a one-way 
snap lock in said horizontal direction'':
    What are the corresponding structure(s) disclosed in the 
specification that perform the function identified above?
    Construing the limitation under 35 U.S.C. 112, para.6 using the 
above-stated function and the corresponding structure(s) that you 
identified, please answer the following questions: (In your response, 
please address the 35 U.S.C. 112, para.6 equivalents to the 
corresponding structures)
    (a) Do respondents' products infringe claim 26?
    (b) Is claim 26 invalid?
    (c) Do complainants meet the technical prong of the domestic 
industry requirement as to claim 26?
    5. Assuming for purposes of this question that 35 U.S.C. 112, 
para.6 applies to the ``means for mechanically locking * * *'' 
limitation of claim 39 of the '410 patent:
    What is the function recited in claim 39 for this means?
    What are the corresponding structure(s) disclosed in the 
specification that perform the function?
    Are there other means-plus-function limitations in claim 39? If so, 
for each limitation identify the recited function and corresponding 
structure(s) disclosed in the specification that perform the function.
    Construing the limitation under 35 U.S.C. 112, para.6 using the 
function(s) and

[[Page 67304]]

the corresponding structure(s) that you identified, please answer the 
following questions: (In your response, please address the 35 U.S.C. 
112, para.6 equivalents to the corresponding structures)
    Do respondents' products infringe claim 39?
    Is claim 39 invalid?
    Please repeat the above analysis for dependent claims 41 and 48.
    Do complainants meet the technical prong of the domestic industry 
requirement as to claim 39?
    6. Assuming for purposes of this question that 35 U.S.C. 112, 
para.6 does not apply to the ``means for mechanically locking * * *'' 
limitation of claim 39 or to any other means-plus-function limitations 
that you identified for this claim in the previous question:
    How should claims 39, 41, and 48 be construed?
    So construed, do respondents' products infringe claims 39, 41, or 
48?
    So construed, are claims 39, 41, or 48 invalid?
    So construed, do complainants meet the technical prong of the 
domestic industry requirement as to claim 39?
    7. Have complainants established that respondents possessed 
specific intent to encourage another's infringement, i.e., have 
complainants shown (1) that each respondent's actions induced 
infringing acts and (2) that each respondent knew or should have known 
his actions would induce actual infringements?
    Each party is requested to provide citations to the record for 
evidentiary support. E.g., in particular a citation is requested for 
the following exhibits referenced in the parties' petitions for review 
and responses: the June 21, 2000, opinion letter from Akzenta and 
Tarkett's counsel (IA's petition at 29) and Roysol's patent and 
flooring panels (Roysol's response at 16).
    In connection with the 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, 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 that either are adversely 
affecting it or are likely to do so. For background information, 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.
    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 to be 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 submission 
should be concise and thoroughly referenced to the record in this 
investigation, including references to 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 ALJ's November 2, 2001, 
recommended determination 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 10, 2002. Reply submissions must be 
filed no later than the close of business on January 17, 2002. 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 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, as amended (19 U.S.C. Sec. 1337), and in sections 
210.42-.45 of the Commission's Rules of Practice and Procedure (19 CFR 
210.42-210.45).

    Issued: December 20, 2001.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 01-31978 Filed 12-27-01; 8:45 am]
BILLING CODE 7020-02-P