[Federal Register Volume 67, Number 178 (Friday, September 13, 2002)]
[Notices]
[Pages 58074-58076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23348]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-456]


In the Matter of Certain Gel-Filled Wrist Rests and Products 
Containing Same; Notice of Commission Decision to Review Portions of an 
Initial Determination Finding No Violation of Section 337 of the Tariff 
Act of 1930

AGENCY: 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 certain 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: Mary Elizabeth Jones, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E St. 
SW., Washington, DC 20436, telephone (202) 205-3106. Hearing-impaired 
persons are advised that information on this matter can be obtained by 
contacting the Commission's TDD terminal at (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 
St. SW., Washington, DC 20436, telephone (202) 205-2000.

SUPPLEMENTARY INFORMATION: The Commission ordered the institution of 
this investigation on May 17, 2001, based on a complaint filed on 
behalf of 3M Innovative Properties Company and Minnesota Mining & 
Manufacturing Company (now called 3M Company), both of St. Paul, 
Minnesota (collectively ``complainants''). 66 FR 27535 (May 17, 2001). 
The complaint alleged violations of section 337 in the importation, 
sale for importation, and sale within the United States after 
importation of certain gel-filled wrist rests by reason of infringement 
of claims 1, 3, 6, 7, or 8 of U.S. Letters Patent 5,713,544 (``the 
``544 patent''). The complaint named eight respondents: Velo Enterprise 
Co., Taiwan; Aidma Enterprise Co. Ltd., Taiwan; Good Raise Chemical 
Industry Co., Ltd., Taiwan; ACCO Brands, Inc., Lincolnshire, Illinois; 
Curtis Computer Products Inc., Provo, Utah; Alsop, Inc., Bellingham, 
Washington; American Covers Inc., Draper, Utah; and Gemini Industries, 
Inc., Clifton, New Jersey. Id. The complaint and notice of 
investigation were later amended to add Crown Vast Development Ltd., 
Taiwan, and Hornleon Company, Ltd., Taiwan, as respondents.
    On January 7, 2002, complainants and respondents filed their 
``Stipulation Concerning Domestic Industry,'' stipulating and agreeing 
to certain facts relating to the establishment of the economic prong of 
the domestic industry. An evidentiary hearing was held from January 14, 
2002, through January 18, 2002. On October 22, 2001, the ALJ issued an 
ID (ALJ Order No. 6) granting complainants' unopposed motion to 
terminate the investigation with respect to Gemini Industries, Inc., on 
the basis of a consent order. On January 9, 2002, the ALJ issued an ID 
(ALJ Order No. 12) finding respondents Good Raise and Aidma in default. 
On May 15, 2002, the ALJ issued an ID (ALJ Order No. 15) granting 
complainants' unopposed motion to terminate the investigation with 
respect to Curtis Computer Products Inc., on the basis of a consent 
order. On May 21, 2002, the ALJ issued an ID (ALJ Order No. 16) 
granting complainants' unopposed motion to terminate the investigation 
with respect to Allsop, Inc., on the basis of a consent order. None of 
these IDs were reviewed by the Commission.
    On July 24, 2002, the ALJ issued his final ID, concluding that 
there was no violation of section 337, based on the

[[Page 58075]]

following findings: (a) complainants have not established that any 
accused product infringes any asserted claim of the ``544 patent; (b) 
invalidity of the ``544 patent due to obviousness has been established 
by clear and convincing evidence; (c) invalidity of the ``544 patent 
due to a failure to disclose the best mode has been established by 
clear and convincing evidence; and (d) it has been established that 
complainants do not practice the ``544 patent and that therefore the 
domestic industry requirement of section 337 is not met. The ALJ also 
found that: (a) Respondents have failed to establish by clear and 
convincing evidence that the ``544 patent is invalid due to 
anticipation; (b) invalidity of the ``544 patent due to the lack of a 
written description or the lack of enablement has not been established 
by clear and convincing evidence; (c) invalidity of the ``544 patent 
due to indefiniteness has not been established by clear and convincing 
evidence; (d) invalidity of the ``544 patent due to improper joinder or 
non-joinder of inventors has not been established by clear and 
convincing evidence; (e) unenforceability of the ``544 patent due to 
inequitable conduct before the U.S. Patent and Trademark Office has not 
been established by clear and convincing evidence; and (f) it has not 
been established by clear and convincing evidence that complainants are 
barred from asserting the ``544 patent due to equitable estoppel. ID at 
217-18.
    On August 5, 2002, respondents ACCO, American Covers, Inc., Crown 
Vast Development, Ltd., and Velo Enterprise Co., Ltd. (hereinafter 
``respondents'') filed a petition for review. On August 7, 2002, the 
Commission investigative attorney (``IA'') filed a petition for review. 
On August 8, 2002, complainants filed a petition for review. On August 
12, 2002, complainants filed a response to petitions for review. On 
August 15, 2002, respondents and the IA filed responses to petitions 
for review.
    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 '544 
patent;
    (2) The ID's infringement conclusions;
    (3) The ID's validity conclusions with regard to obviousness and 
failure to disclose best mode of practice; and
    (4) The ID's conclusion with respect to the technical prong of the 
domestic industry requirement.
    The Commission has determined not to review the remainder of the 
ID.
    The Commission determined to deny complainants' request for oral 
argument.
    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:
    1. Assuming that the ALJ correctly construed the claim 1 term 
``pad,'' is it an error to conclude that infringement of the '544 
patent can only be proven by testing the pads as they are intended to 
be used, i.e., with any outer coverings still on the gel? If 
infringement can be proven by testing the pads without any coverings, 
please identify the relevant record evidence supporting a finding of 
infringement or non-infringement.
    2. Assuming that the ALJ correctly construed the claim 1 term 
``stable elastomeric block polymer gel,'' is it an error to find that 
col. 1:55-col. 2:9 are not limitations on claim 1, but col. 2:10-65 do 
represent limitations on claim 1?
    3. Assuming that the ALJ correctly construed the claim 1 term 
``stable elastomeric block polymer gel'' is it an error to require 
that, in order to satisfy the technical prong of the domestic industry 
requirement, domestically-made products be made without naphthenic 
oils?
    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 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 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 order 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 submissions 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 July 31, 2002, 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 September 23, 2002, Reply submissions must be filed no 
later than the close of business on September 30, 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

[[Page 58076]]

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 in sections 
210.42-45 of the Commission's Rules of Practice and Procedure (19 CFR 
210.42-.45)

    Issued: September 9, 2002.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 02-23348 Filed 9-12-02; 8:45 am]
BILLING CODE 7020-02-P