[Federal Register Volume 69, Number 164 (Wednesday, August 25, 2004)]
[Notices]
[Pages 52309-52310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19407]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-493]


Certain Zero-Mercury-Added Alkaline Batteries, Parts Thereof, and 
Products Containing Same; Notice of Commission Determination To Review 
a Final Initial Determination Finding a 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 June 2, 2004, finding a 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 June 2, 2003, based on a complaint filed by Energizer Holdings, Inc. 
and Eveready Battery Company, Inc., both of St. Louis, Missouri. 68 FR 
32771 (June 2, 2003). The complaint, as supplemented, alleged 
violations of section 337 of the Tariff Act of 1930 in the importation 
into the United States, the sale for importation, and the sale within 
the United States after importation of certain zero-mercury-added 
alkaline batteries, parts thereof, and products containing same by 
reason of infringement of claims 1-12 of U.S. Patent No. 5,464,709 
(``the `709 patent''). The complaint and notice of investigation named 
twenty-six respondents and were later amended to include an additional 
firm as a respondent. The investigation has been terminated as to 
claims 8-12 of the `709 patent. Several respondents have been 
terminated from the investigation for various reasons.
    On June 2, 2004, the ALJ issued his final ID finding a violation of 
section 337. He also recommended the issuance of remedial orders. A 
number of the remaining respondents have petitioned for review of the 
ID. Complainants and the Commission investigative attorney have filed 
oppositions to those petitions.
    Having examined the record in this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the final ID in its entirety.
    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 claim construction and indefiniteness, especially with 
respect to the following terms of claim 1 of the `709 patent: ``said 
zinc anode''; ``has a gel expansion of less than 25%''; and ``after 
being discharged for 161 minutes to 15% depth of discharge at 2.88A''. 
In addressing the question of claim construction, each party should (1) 
Specifically identify those portions of the claim language, 
specification, and prosecution history (and other evidence, if 
appropriate) which support the construction it advocates, (2) state how 
the construction it advocates is supported by an adequate written 
description and enabling disclosure, and (3) demonstrate that the 
construction it advocates falls within the ambit of permissible claim 
construction, as opposed to impermissible redrafting of claim language. 
The Commission is also interested in receiving answers to the following 
questions:
    1. With respect to the term ``after being discharged'' in claim 1, 
what is being discharged?
    2. Whether and to what extent disclaimed claims 8-12 may be used in 
construing the remaining claims.
    3. Whether and to what extent the prosecution history of the 
corresponding European patent (RX-4) may be used to construe the claims 
of the `709 patent.
    4. What is meant by the term ``depth of discharge'' in claim 1?
    5. Whether and how the asserted claims may be construed to cover 
rechargeable batteries.
    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

[[Page 52310]]

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 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 June 2, 2004, recommended 
determination by the ALJ on remedy and bonding. Complainants 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 September 3, 2004. Reply submissions must be filed 
no later than the close of business on September 13, 2004. 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 12 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 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.
    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 sections 210.42-.46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-.46).

    Issued: August 19, 2004.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 04-19407 Filed 8-24-04; 8:45 am]
BILLING CODE 7020-02-P