[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Notices]
[Pages 40293-40294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17007]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-477]


In the Matter of Certain Ammonium Octamolybdate Isomers; Notice 
of Commission Determination To Review a Final Initial Determination 
Finding No Violation of Section 337; Schedule for Filing Written 
Submissions on the Issues Under Review and 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 to review in its entirety the final initial 
determination (ID) issued by the presiding administrative law judge 
(ALJ) on May 15, 2003, finding no violation of section 337 of the 
Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned 
investigation.

FOR FURTHER INFORMATION CONTACT: Wayne Herrington, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3090. Copies 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. 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) at http://edis.usitc.gov. Hearing-impaired persons are advised 
that information on this matter can be obtained by contacting the 
Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on August 20, 2002, based on a complaint filed by Climax Molybdenum 
Company (``Climax'') against one respondent, Molychem LLC (Molychem). 
67 FR 53966. In that complaint, as supplemented, Climax alleged 
violations of section 337 in the importation into the United States, 
sale for importation, and/or sale within the United States after 
importation of certain ammonium octamolybdate isomers by reason of 
infringement of claim 1 of Climax's U.S. Patent No. 5,985,236. 
Subsequently, the complaint and notice of investigation were amended to 
add four additional respondents to the investigation: Anhui Wonder 
Trade Co., Ltd.; Pudong Trans USA, Inc. (Pudong); John S. Conner, Inc. 
(Conner); and Chem-Met International, Inc. One of these respondents, 
Conner, was eventually terminated from the investigation as the result 
of a settlement agreement.
    On May 15, 2003, the ALJ issued his final ID on violation and his 
recommended determination on remedy and bonding. The ALJ found no 
violation of section 337 because he concluded that claim 1 of the `236

[[Page 40294]]

patent was invalid on the basis of an on-sale bar under 35 U.S.C. 
102(b). In his ID, the ALJ noted that the `236 patent is currently the 
subject of a reissue proceeding in the United States Patent and 
Trademark Office (PTO). Complainant Climax filed a petition for review 
on May 27, 2003. On May 30 and June 3, 2003, respectively, respondent 
Molychem and the Commission investigative attorney each filed a 
response to the petition for review. On June 10, 2003, Climax filed a 
motion for leave to file a reply to the response of the Commission 
investigative attorney, including its proposed reply. On June 11, 2003, 
Molychem filed a motion to strike Climax's motion for leave.
    Having examined the record in this investigation, including the 
ALJ's final ID, the petition for review, and the responses thereto, the 
Commission has determined to review the final ID in its entirety. The 
Commission has also determined to deny Climax's request for oral 
argument. In addition, the Commission has determined to deny Climax's 
motion for leave to file a reply and to deny Molychem's motion to 
strike without prejudice to renewing any pertinent arguments in their 
written submissions in the course of the Commission's review of the 
final ID.
    On review, the Commission requests briefing based on the 
evidentiary record. While the Commission has determined to review the 
final ID in its entirety, it is particularly interested in briefing on 
the issues of personal jurisdiction over respondent Pudong, claim 
construction, invalidity of claim 1 of the `236 patent for anticipation 
by the Tytko article, and unenforceability of the `236 patent for 
inequitable conduct, and especially in receiving answers to the 
following questions:
    1. What is the meaning of the term ``octamolybdate'' in claim 1 of 
the `236 patent? In particular, the Commission wishes the parties to 
address whether the term refers to a single polyanion containing eight 
molybdenum and twenty-six oxygen atoms.
    2. Whether (a) the Raman spectrum shown in Figure 1(f) of the Tytko 
article (second from the top) falls within the Raman spectrum set out 
in Claim 1 of the `236 patent, and (b) whether the Tytko article 
contains sufficient enabling disclosure with respect to the composition 
represented by that spectrum so as to be available as prior art.
    3. The legal foundation and record support for the existence or 
non-existence of the specific offer for sale or sale found by the ALJ 
in his final ID in connection with his finding of the existence of an 
on-sale bar.
    The Commission has also determined to order complainant Climax to 
file and serve with its main review brief a copy of the file for the 
reissue application for the `236 patent which is currently pending in 
the PTO, as well as the files of any other proceedings in the PTO 
relating to the `236 patent, the reissue application, or the original 
application for the `236 patent. Complainant Climax is also ordered to 
file and serve any additions to such files as they are made in the PTO.
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue one or more 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 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 likely to do so. For 
background, see In the Matter of Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 
(December 1994) (Commission Opinion).
    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 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. Parties to the investigation, interested government 
agencies, and any other interested parties are encouraged to file 
written submissions on the issues of remedy, the public interest, and 
bonding. Such submissions should address the May 15, 2003, recommended 
determination by the ALJ 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 
close of business on July 14, 2003. Reply submissions must be filed no 
later than the close of business on July 21, 2003. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission.
    Persons filing written submissions must file the original document 
and 14 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. 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 Sec.  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.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in Sec. Sec.  210.43-210.44 of the Commission's rules of practice and 
procedure (19 CFR 210.43-210.44).

    Issued: June 30, 2003.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 03-17007 Filed 7-3-03; 8:45 am]
BILLING CODE 7020-02-P