[Federal Register Volume 68, Number 100 (Friday, May 23, 2003)]
[Notices]
[Pages 28254-28255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12937]


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UNITED STATES INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-406, Consolidated Enforcement and Advisory Opinion 
Proceedings]


In the Matter of Certain Lens-Fitted Film Packages; Notice of 
Commission Decision Not To Review the Administrative Law Judge's 
Supplemental Initial Determination; Decision To Issue Cease and Desist 
Orders and Civil Penalties; Termination of Consolidated Enforcement and 
Advisory Proceedings

AGENCY: U.S. 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 a supplemental initial advisory 
opinion (IAO) and enforcement initial determination (EID) issued by the 
presiding administrative law judge (ALJ) on October 24, 2002, in the 
above-captioned proceedings under section 337 of the Tariff Act, as 
amended, 19 U.S.C. 1337. Notice is also given of the Commission's 
decision to issue cease and desist orders to four respondents in the 
proceedings who were found to have violated the Commission's general 
exclusion order which was issued in the original investigation, and the 
Commission's decision to levy civil penalties against three respondents 
who were found to have violated cease and desist orders that were 
issued in the original investigation.

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://edis.usitc.gov. Hearing-impaired persons are advised that information 
on the matter can be obtained by contacting the Commission's TDD 
terminal on 202-205-1810.

[[Page 28255]]


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 cameras to the 
U.S. Court of Appeals for the Federal Circuit. No party appealed the 
Commission's determinations concerning newly-manufactured cameras.
    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 
ALJ for issuance of a separate initial advisory opinion (IAO) and 
enforcement initial determination (EID). 63 FR 40721 (August 3, 2001).
    On May 2, 2002, the ALJ issued his IAO and EID in which he made 59 
separate infringement determinations involving seven patents, 13 
respondents, and 28 different types of accused LFFP. He also 
recommended the penalties to be assessed against the respondents who 
were found to have violated the general exclusion order (GEO) or cease 
and desist orders that were issued in the original investigation. Eight 
petitions for review of the IAO and/or EID violation issues 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, Festo Corp. v. Shoketsu Kinzoku 
Kogyo Kabushiki Co., Ltd., 122 S.Ct. 1831 (May 28, 2002), to the issue 
of infringement under the doctrine of equivalents. The Commission 
determined not to review the remainder of the IAO and EID. The 
Commission also requested comments on the ALJ's penalty 
recommendations. Comments were filed by Fuji, the Commission 
investigative attorney (IA), and respondents Argus Industries, Inc. and 
Photo Works, Inc. Response comments were filed by Fuji, the IA, Argus, 
PhotoWorks, Achiever Industries, Ltd., Highway Holdings, Ltd., The 
Message Group, Inc., and VastFame Camera Ltd. Ad-Tek Specialities, Inc. 
filed an affidavit.
    On October 24, 2002, the ALJ issued a supplemental IAO and EID in 
which he determined that the application of the Festo decision did not 
change his earlier determination that VastFame camera models VN99 and 
VN991 did not infringe claim 9 of U.S. Patent No. 4,972,649 (the '649 
patent) under the doctrine of equivalents. Fuji filed a petition for 
review of the supplemental IAO and EID. VastFame opposed Fuji's 
petition. The Commission, having examined the petition for review, and 
the response thereto determined not to review the findings of the 
supplemental IAO and EID on the issue of infringement of claim 9 of the 
'649 patent in view of the Supreme Court decision, Festo Corp. v. 
Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 122 S.Ct. 183.
    The Commission also received written submissions from the parties 
that addressed the EID's recommendations on civil penalties, the effect 
of the cease and desist orders recommended in the EID on the public 
interest, and the amount of bond that should be imposed during the 60-
day Presidential review period concerning the cease and desist orders.
    Having reviewed the record in this investigation, including the 
written submissions of the parties, the Commission determined: (1) To 
issue cease and desist orders to defaulted respondents Americam, Inc.; 
Camera Custom Design a/k/a Title the Moment Inc.; CS Industries a/k/a 
PLF Inc.; and Penmax, Inc. to prevent them from engaging in unfair acts 
in the importation and sale of lens-fitted film packages from 
inventory; (2) that the public interest factors enumerated in 
subsection (f) of section 337 do not preclude the issuance of the 
aforementioned cease and desist orders, and that the bond during the 
Presidential review period shall be in the amount of 100 percent of the 
entered value of the articles in question; (3) to levy civil penalties 
against Argus Industries, Inc. in the amount of $480,000, Ad-Tek 
Specialities, Inc., in the amount of $200,000, and PhotoWorks, Inc. in 
the amount of $1.6 million for violations of cease and desist orders 
that the Commission issued at the completion of the Lens-Fitted Film 
Packages investigation.
    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).

    Issued: May 19, 2003

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 03-12937 Filed 5-22-03; 8:45 am]
BILLING CODE 7020-02-P