[Federal Register Volume 69, Number 241 (Thursday, December 16, 2004)]
[Notices]
[Pages 75342-75343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27558]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-498]


In the Matter of Certain Insect Traps; Notice of Commission 
Issuance of a Limited Exclusion Order and a Cease and Desist Order 
Against a Respondent Found in Default

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 issued a limited exclusion order and a cease and desist 
order against a respondent found in default in the above-captioned 
investigation.

FOR FURTHER INFORMATION CONTACT: Rodney Maze, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3065. Copies of non-
confidential 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: This patent-based section 337 investigation 
was instituted by the Commission based on a complaint filed by American 
Biophysics Corporation (``ABC'') of Greenwich, Rhode Island. 68 FR 
53752 (September 12, 2003). ABC alleged violations of section 337 of 
the Tariff Act of 1930 in the importation into the

[[Page 75343]]

United States, the sale for importation, and the sale within the United 
States after importation of certain insect traps by reason of 
infringement of various claims of U.S. Patent Nos. 6,145,243 
(hereinafter ``the `243 patent'') and 6,286,249 (hereinafter ``the `249 
patent''). The complaint named Ferrellgas, LP, of Liberty, Missouri as 
a respondent.\1\
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    \1\ On April 16, 2004, CPD Associates, Inc. merged with Blue 
Rhino Corp. On April 20, 2004, Blue Rhino Corp. converted into a 
Delaware limited liability company called Blue Rhino, LLC. 
Immediately thereafter, on April 21, 2004, Blue Rhino, LLC merged 
into Ferrellgas, LP.
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    On December 8, 2003, the administrative law judge (``ALJ'') issued 
an initial determination (``ID'') amending the complaint and notice of 
investigation to add Blue Rhino Global Sourcing, LLC, of Winston-Salem, 
North Carolina, Guangdon Dong Fang Imp. & Exp. Corp. of Shenzhen, 
China, and Lentek International, Inc. of Kissimmee, Florida 
(``Lentek'') as respondents. This ID was not reviewed by the Commission 
(Order No. 5).
    On April 19, 2004, the ALJ issued an ID, which was not reviewed by 
the Commission, finding respondent Lentek in default (Order No. 11). On 
April 27, 2004, ABC filed a declaration for immediate relief against 
Lentek based on both patents at issue. On May 24, 2004, ABC filed a 
motion to amend its request for immediate relief against Lentek by 
withdrawing its request for relief with respect to the `243 patent.
    On September 10, 2004, the ALJ issued his final ID finding no 
violation of section 337 based on a finding of no infringement of 
claims 1 and 32 of the `243 patent by the remaining respondents, 
Ferrellgas, LP, Blue Rhino Consumer Products, LLC, Blue Rhino Global 
Sourcing, LLC, and Guangdon Dong Fang Imp. & Exp. Corp. (collectively 
``Ferrellgas/BlueRhino/GDF''). (On April 9, 2004, the ALJ had issued an 
unreviewed ID effectively terminating the investigation as to the `249 
patent with respect to these respondents.)
    On September 30, 2004, ABC and respondents, Ferrellgas/Blue Rhino/
GDF, filed a joint motion to terminate the investigation as to all 
issues based upon a settlement agreement. On October 25, 2004, the 
Commission granted the joint motion to terminate the investigation 
against Ferrellgas/BlueRhino/GDF and further requested written 
submissions on the issues of remedy, the public interest and, bonding 
relating to the default finding of unlawful importation and sale of 
infringing products by Lentek. The Commission investigative attorney 
submitted his brief on remedy, the public interest and bonding on 
November 2, 2004. ABC submitted its briefing on remedy, the public 
interest and bonding on November 8, 2004. No reply submissions were 
filed.
    The Commission found that each of the statutory requirements of 
section 337(g)(1)(A)-(E), 19 U.S.C. 1337(g)(1)(A)-(E), has been met 
with respect to defaulting respondent Lentek. Accordingly, pursuant to 
section 337(g)(1), 19 U.S.C. 1337(g)(1), and Commission rule 210.16(c) 
19 CFR 210.16(c), the Commission presumed the facts alleged in the 
amended complaint to be true. The Commission determined that the 
appropriate form of relief in this investigation is a limited exclusion 
order prohibiting the unlicensed entry of insect traps covered by 
claims 1-6, 8, 13-15, 17, 18, 29, 31, 34, 36-41 and 44 of the `249 
patent. The order covers insect traps that are manufactured abroad by 
or on behalf of, or imported by or on behalf of, Lentek, or any of its 
affiliated companies, parents, subsidiaries, or other related business 
entities, or their successors or assigns. The Commission also 
determined to issue a cease and desist order prohibiting Lentek from 
importing, selling, marketing, advertising, distributing, offering for 
sale, transferring (except for exportation), and soliciting U.S. agents 
or distributors for insect traps covered by the above-mentioned claims 
of the `249 patent. The Commission further determined that the public 
interest factors enumerated in section 337(g)(1), 19 U.S.C. 1337(g)(1), 
do not preclude issuance of the limited exclusion order. Finally, the 
Commission determined that the bond under the limited exclusion order 
during the Presidential review period shall be in the amount of 100 
percent of the entered value of the imported articles. The Commission's 
orders were delivered to the President on the day of their issuance.
    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 section 210.16(c) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.16(c)).

    By order of the Commission.

    Issued: December 10, 2004.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 04-27558 Filed 12-15-04; 8:45 am]
BILLING CODE 7020-02-P