[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Notices]
[Pages 35675-35676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14507]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-449]


In the Matter of Certain Abrasive Products Made Using a Process 
for Powder Preforms, and Products Containing Same; Notice of Commission 
Decision to Vacate Limited Exclusion Order and Cease and Desist Order

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 vacated the limited exclusion order and cease and desist 
order issued at the conclusion of the above-captioned investigation.

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 the Commission's TDD terminal on 202-205-
1810.
    Copies of the public 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 3M Company of St. Paul, Minnesota and Ultimate Abrasive Systems, LLC 
(``UAS'') of Atlanta, Georgia. 66 FR 9720 (Feb. 9, 2001). The complaint 
named Kinik Company (``Kinik'') of Taipei, Taiwan and Kinik Corporation 
of Anaheim, California as respondents. Kinik Corporation was 
subsequently terminated from the investigation.
    Complainants alleged that respondents had violated section 337 of 
the Tariff Act of 1930 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. Patent 
No. 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. 
On February 8, 2002, the ALJ issued his final initial determination 
(``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 is valid and enforceable. Based upon these findings, he 
found a violation of section 337.
    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 filed oppositions

[[Page 35676]]

to Kinik's petition for review and its appeal of Order No. 40.
    On March 29, 2002, the Commission determined not to review the 
ALJ's final ID, which therefore became the determination of the 
Commission. The Commission also issued an opinion affirming the ALJ's 
Order No. 40.
    On August 16, 2002, Kinik appealed the Commission's determination 
to the U.S. Court of Appeals for the Federal Circuit. 3M intervened in 
the appeal and the parties filed briefs with the Court. The Federal 
Circuit issued an opinion on March 25, 2004. The Court construed claim 
1 more narrowly than had the Commission and reversed the Commission's 
finding of infringement. 3M filed a petition for a panel rehearing and 
hearing en banc with the Court on April 20, 2004. However, the Federal 
Circuit denied the petitions and issued the mandate on May 20, 2004. As 
the Federal Circuit has reversed the Commission's finding of 
infringement with respect to Kinik's process, the Commission determined 
that there was no longer a basis for the limited exclusion order or the 
cease and desist order issued in this investigation, and therefore 
vacated the orders.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, 19 U.S.C. 1337.

    By order of the Commission.
    Issued: June 21, 2004.

Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 04-14507 Filed 6-24-04; 8:45 am]
BILLING CODE 7020-02-P