[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Notices]
[Pages 20131-20132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-5884]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-533]


In the Matter of Certain Rubber Antidegradants, Components 
Thereof, and Products Containing Same; Notice of Commission 
Determination To Review a Final Initial Determination; 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 February 17, 2006, 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 section 337 
investigation on March 29, 2005, based on a complaint filed by Flexsys 
America LP. 70 FR 15885 (March 29, 2005). 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 rubber antidegradants, components thereof, and products 
containing same that infringe claims 30 and 61 of U.S. Patent No. 
5,117,063 (``the '063 patent''), claims 7 and 11 of U.S. Patent No. 
5,608,111 (``the '111 patent''), and claims 1, 32, and 40 of U.S. 
Patent No. 6,140,538 (``the '538 patent''). The complaint and notice of 
investigation named five respondents. The investigation was 
subsequently terminated as to two respondents and as to the '538 
patent.
    On February 17, 2006, the ALJ issued his final ID finding a 
violation of section 337 of the Tariff Act of 1930, as amended (19 
U.S.C. 1337), by respondents Sinorgchem Co., Shandong, and Sovereign 
Chemical Company, but finding no violation of section 337 by respondent 
Korea Kumho Petrochemical Co., Ltd. The ALJ recommended that the 
Commission issue limited exclusion orders, but did not recommend that 
any bond be imposed for importations during the Presidential review 
period. All parties petitioned for review of various parts of the final 
ID.
    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. 
The Commission's review includes the issue of whether the ALJ properly 
determined that the issue of infringement by the P1 and P2 processes of 
Korea Kumho Petrochemical Co., Ltd. was not before him, but that review 
is only for the purpose of making a correction to the final ID, i.e., 
to substitute ``Motion No. 533-61'' for ``Motion No. 533-57'' on page 
96 of the final ID. The Commission has otherwise concluded that the ALJ 
was correct in his determination on this issue.
    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 term ``controlled amount of protic material,'' which 
appears in all the asserted claims. In addressing the question of claim 
construction, each party should specifically identify those portions of 
the claim language, specification, and prosecution history (and other 
evidence, if appropriate) which support the construction it advocates. 
The Commission is also interested in receiving answers to the following 
questions:
    1. With respect to the ID's construction of the term ``controlled 
amount of protic material,'' what is the basis for including ``the 
desired selectivity,'' given that col. 4, ll. 48-50 ('063 patent) 
states: ``A `controlled amount' of protic material is an amount up to 
that which inhibits the reaction of aniline with nitrobenzene * * *,'' 
a statement which does not contain the term ``selectivity''?
    2. Given that the '111 patent is based on a continuation-in-part 
application, what is the legal basis for using matter in the claims and 
specification of that patent not common to the disclosure of the '063 
patent to construe the claims of the '063 patent? What is the legal 
basis for using the prosecution history of the '111 patent to construe 
the claims of the '063 patent?
    3. Referring to the ALJ's definition of ``controlled amount of 
protic material'' in the ID at 78-79, what is the meaning of the terms 
``inhibited'' and ``desired selectivity''? How are these terms applied 
to determine infringement by the accused processes? With respect to the 
claim construction of ``controlled amount of protic material'' adopted 
in the ID, what is the evidence that the claims, specification, and 
prosecution history would provide a person of ordinary skill in the art 
with knowledge of what constitutes ``inhibition'' and the ``desired 
selectivity''?
    4. With respect to the licensing issues raised by Korea Kumho 
Petrochemical Co., Ltd., which are stated to be subject to Korean law, 
state the applicable Korean law and discuss how it applies.
    5. With respect to the estoppel issue raised by Korea Kumho 
Petrochemical Co., Ltd., state what law (Korean, U.S., or other) 
applies and how it applies.

[[Page 20132]]

    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 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 February 17, 2006, 
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 April 24, 2006. Reply submissions must be 
filed no later than the close of business on May 1, 2006. 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 Sec.  210.42-.46 of the Commission's Rules of Practice and Procedure 
(19 CFR 210.42-.46).

    By order of the Commission.

    Issued: April 13, 2006.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E6-5884 Filed 4-18-06; 8:45 am]
BILLING CODE 7020-02-P