[Federal Register Volume 67, Number 65 (Thursday, April 4, 2002)]
[Notices]
[Pages 16116-16118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8106]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-449]


Certain Abrasive Products Made Using a Process for Powder 
Preforms, and Products Containing Same; Notice of Commission Decision 
to Affirm ALJ Order No. 40 and Not to Review a Final Initial 
Determination Finding a Violation of Section 337; Schedule for Filing 
Written Submissions on Remedy, the Public Interest, and Bonding

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined not to review the final initial determination 
(ID) issued by the presiding administrative law judge (ALJ) on February 
8, 2002, finding a violation of section 337 of the Tariff Act of 1930, 
19 U.S.C. 1337, in the above-captioned investigation, and determined to 
affirm ALJ Order No. 40 issued by the ALJ on October 12, 2001.

FOR FURTHER INFORMATION CONTACT: Michael K. Haldenstein, Esq., Office 
of the General Counsel, U.S. International Trade Commission, telephone 
202-205-3041. General information concerning the Commission may also be 
obtained by accessing its Internet server (http://www.usitc.gov). 
Hearing-impaired persons are advised that information on the matter can 
be obtained by contacting

[[Page 16117]]

the Commission's TDD terminal on 202-205-1810.
    Copies of the public version of ALJ Order No. 40, the Commission's 
opinion affirming that Order, 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, SW., Washington, DC 20436, telephone 202-205-
2000.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on February 5, 2001, based upon a complaint filed on January 5, 2001, 
by Minnesota Mining & Manufacturing Co. (``3M'') of St. Paul, Minnesota 
and Ultimate Abrasive Systems, LLC (``UAS'') of Atlanta, Georgia. 66 FR 
9720 (Feb. 9, 2001). Their complaint named Kinik Company (``Kinik'') of 
Taipei, Taiwan and Kinik Corporation (``Kinik Corp.'') of Anaheim, 
California as respondents.
    Complainants alleged that respondents had violated section 337 by 
importing into the United States, selling for importation, and selling 
within the United States after importation certain abrasive products 
that are made using a process for making powder preforms that is 
covered by claims 1, 4, 5, and 8 of U.S. Letters Patent 5,620,489 
(``the '489 patent''), owned by UAS and exclusively licensed to 3M. The 
complaint further alleged that an industry in the United States exists 
as required by subsection (a)(2) of section 337.
    Complainants moved to terminate the investigation with respect to 
Kinik Corp. after they concluded that Kinik Corp was not manufacturing 
or importing products that infringed the '489 patent. The ALJ granted 
this motion on June 19, 2001, in an ID (Order No. 15) and the 
Commission determined not to review that ID. On August 8, 2001, the ALJ 
issued an ID (Order No. 19) that the economic prong of the domestic 
industry requirement was satisfied with respect to the claims at issue 
of the 489 patent, and the Commission determined not to review that ID.
    An evidentiary hearing was held on October 10-17, 27, and 30, 2001. 
On February 8, 2002, the ALJ issued his final ID, in which he 
determined that Kinik's accused DiaGrid abrasive products infringed 
claims 1, 4, 5, and 8 of the '489 patent and that the '489 patent was 
valid and enforceable. Based upon these findings, he found a violation 
of section 337.
    The ALJ recommended issuance of a limited exclusion order barring 
importation of all Kinik abrasive products that infringe the '489 
patent, which includes products produced using Kinik's DiaGrid process. 
He also recommended issuance of a cease and desist order, and a bond 
during the Presidential review period in the amount of 5 percent of the 
entered value of the infringing Kinik products.
    On February 21, 2002, Kinik petitioned for review of the ALJ's 
final ID. Kinik also appealed Order No. 40, issued by the ALJ on 
October 12, 2001. That Order precluded Kinik from asserting 35 U.S.C. 
271(g) as a non-infringement defense. On February 28, 2002, 3M and the 
Commission investigative attorney (IA) filed oppositions to Kinik's 
petition for review and its appeal of Order No. 40.
    Having reviewed the record in this investigation, including the 
parties' written submissions, the Commission has determined to affirm 
Order No. 40 and not to review the ID in its entirety. The Commission 
will issue an opinion explaining its reasons for affirming Order No. 
40.
    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 Kinik 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 
information, see the Commission Opinion, Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Publication 
2843 (Dec. 1994).
    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, interested government agencies, 
and any other interested parties are encouraged to file written 
submissions on remedy, the public interest, and bonding. Such 
submissions should address the February 8, 2002 recommended 
determination by the ALJ on remedy and bonding. Complainant and the IA 
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 
April 11, 2002. Reply submissions must be filed no later than the close 
of business on April 18, 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, 19 U.S.C. 1337, and Secs. 210.42, 210.43, 210.45, 
210.46, and 210.50 of the Commission's rules of practice and procedure, 
19 CFR 210.42, 210.43, 210.45, 210.46, and 210.50.

    Issued: March 29, 2002.


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    By order of the Commission.

Marilyn R. Abbott,
Secretary.
[FR Doc. 02-8106 Filed 4-3-02; 8:45 am]
BILLING CODE 7020-02-P