[Federal Register Volume 67, Number 60 (Thursday, March 28, 2002)]
[Notices]
[Pages 14973-14974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7402]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-443]


In the Matter of Certain Flooring Products; Notice of Final 
Determination of No Violation of Section 337

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found no violation of section 337 of the Tariff Act of 
1930, 19 U.S.C. 1337, in the above-referenced investigation.

FOR FURTHER INFORMATION CONTACT: David I. Wilson, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, SW, 
Washington, DC 20436, telephone (202) 708-2310. 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 December 20, 2001, the 
Commission 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

[[Page 14974]]

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. 
112, para. 6; and (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 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 determined 
not to review the remainder of the ID. The Commission also determined 
to extend the target data for completion of the investigation to March 
7, 2002. The Commission subsequently determined to further extend the 
target date to March 21, 2002. In accordance with the Commission's 
directions, the parties filed main briefs on January 10, 2002, and 
reply briefs on January 17, 2002. Having examined the record in this 
investigation, including the briefs and the responses thereto, the 
Commission determined that there is no violation of section 337. More 
specifically, the Commission found that there is no infringement of any 
claims at issue of the `410, `267, and `907 patents; no domestic 
industry exists with respect to the `410, `267, and `907 patents; and 
that the `410, `267, and `907 patents are not invalid. The Commission 
also determined that the complainants waived the issue of whether the 
accused products infringe the asserted claims of the `410, `267, and 
`907 patents 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. Nonetheless, the Commission examined the issue 
and determined that, even if the argument had been timely raised, it 
would not have led to a different result. The Commission determined 
that complainants waived the issue of whether the accused products 
infringe the asserted claims of the `410, `267 and `907 patents under 
the doctrine of equivalents. This action is taken under the authority 
of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, and sections 
210.45-210.51 of the Commission's Rules of Practice and Procedure, 19 
CFR 210.45-210.51.

    By order of the Commission.

    Issued: March 22, 2002.
Marilyn R. Abbott,
Secretary.
[FR Doc. 02-7402 Filed 3-28-02; 8:45 am]
BILLING CODE 7020-02-P