[Federal Register Volume 67, Number 156 (Tuesday, August 13, 2002)]
[Notices]
[Pages 52741-52742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20430]


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

INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-406]


Certain Lens-Fitted Film Packages, Consolidated Enforcement and 
Advisory Opinion Proceedings; Notice of Review-in-Part, Nonreview-in-
Part, and Remand of Enforcement Initial Determination and Initial 
Advisory Opinion to the Presiding Administrative Law Judge

AGENCY: International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review-in-part and remand to the presiding 
administrative law judge (ALJ) the initial advisory opinion (IAO) and 
the enforcement initial determination (EID) issued by the ALJ on May 2, 
2002, in the above-captioned proceedings under section 337 of the 
Tariff Act as amended, 19 U.S.C. 1337. Specifically, the Commission 
determined to review and remand to the ALJ an issue of infringement 
under the doctrine of equivalents in view of the Supreme Court's 
decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 
122 S.Ct. 1831 (May 28, 2002). The Commission determined not to review 
the remainder of the IAO and EID.

FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., telephone 202-205-
3104, Office of the General Counsel, U.S. International Trade 
Commission, 500 E Street, SW., Washington, DC 20436. Copies of all 
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. General information concerning the Commission 
may also be obtained by accessing its Internet server (http://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS-ON-LINE) at http://dockets.usitc.gov/eol.public. Hearing-impaired persons are advised that 
information on the matter can be obtained by contacting the 
Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission's original investigation in 
this matter was terminated on June 2, 1999, with a finding of violation 
of section 337 by 26 respondents by reason of importation or sales 
after importation of certain lens-fitted film packages (LFFPs) (i.e., 
disposable cameras) that were found to infringe one or more claims of 
15 patents held by complainant Fuji Photo Film Co. (Fuji). 64 FR 30541 
(June 8, 1999). The Commission issued a general exclusion order, 
prohibiting the importation of LFFPs that infringe any of the claims at 
issue, and issued cease and desist orders to twenty domestic 
respondents. Id. Three respondents appealed the part of the 
Commission's determination that concerned refurbished LFFPs to the U.S. 
Court of Appeals for the Federal Circuit. No party appealed the 
Commission's determinations concerning newly-manufactured LFFPs.
    On June 27, 2001, Fuji filed a ``Complaint for Enforcement 
Proceedings Under Rule 210.75, Petition for Modification Under Rule 
210.76 and/or Request for Advisory Opinion Under Rule 210.79.'' Fuji's 
enforcement complaint asserted 22 claims contained in nine utility 
patents and named twenty entities as respondents. Fuji later withdrew 
its complaint as to three of the respondents. Fuji's complaint concerns 
only newly-manufactured cameras that were not the subject of the appeal 
to the Federal Circuit. On July 31, 2001, the Commission instituted 
advisory opinion and enforcement proceedings and referred them to the 
presiding ALJ for issuance of a separate initial advisory opinion (IAO) 
and enforcement initial determination (EID). 63 FR 40721 (August 3, 
2002).
    On May 2, 2002, the ALJ issued his IAO and EID in which he made 59 
separate infringement determinations involving seven patents and 13 
respondents and 28 different types of accused LFFP. Eight petitions for 
review of the IAO and/or EID were filed on May 16, 2002. Responses were 
filed on May 24, 2002. On June 7, 2002, Fuji filed a supplemental brief 
concerning the application of intervening Supreme Court precedent. 
Responses to Fuji's motion were filed on June 19 and June 24, 2002, by 
the Commission investigative attorneys (IAs) and respondent Vastfame 
Camera Ltd., respectively.
    The Commission, having examined the petitions for review and the 
responses thereto, determined to review the findings of the IAO and EID 
on the issue of infringement of claim 9 of U.S. Letters Patent 
4,972,649 in view of the Supreme Court decision, Festo Corp. v. 
Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 122 S.Ct. 1831, which was 
handed down after the IAO and EID were issued. The Commission has 
determined not to review any other part of the IAO or EID.
    In connection with final disposition of the enforcement 
proceedings, the Commission may issue 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 lens fitted film 
packages. If the Commission contemplates issuance of cease and desist 
orders, it must consider the effects of that remedy upon the public 
interest. The factors the Commission will consider include the effect 
that 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

[[Page 52742]]

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 issues cease and desist orders, the conduct 
prohibited by any cease and desist order may be continued during the 
sixty (60) day period in which the cease and desist orders are under 
review by the President pursuant to subsection (j) of section 337, 19 
U.S.C. 1337(j). During this period, the subject articles would be 
entitled to be sold 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.
    The Commission may also levy civil penalties for violations of 
cease and desist orders that it issued at the completion of the Lens-
Fitted Film Packages investigation.
    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 recommended remedy determinations 
made by the ALJ in the EID that issued on May 2, 2002, including the 
ALJ's recommendations with regard to civil penalties. Complainant and 
the Commission investigative attorneys are also requested to submit 
proposed cease and desist orders for the Commission's consideration. 
The written submissions and proposed cease and desist orders must be 
filed no later than close of business on August 28, 2002. Response 
submissions must be filed no later than the close of business on 
September 6, 2002. No further submissions on these issues 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 section 201.6 of the Commission's rules of practice and 
procedure, 19 CFR 201.6. Documents for which confidential treatment by 
the Commission is sought 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 210.75 
and 210.79 of the Commission's rules of practice and procedure (19 CFR 
210.75 and 210.79).

    By order of the Commission.

    Issued: August 7, 2002.
Marilyn R. Abbott,
Secretary.
[FR Doc. 02-20430 Filed 8-12-02; 8:45 am]
BILLING CODE 7020-02-P