[Federal Register Volume 71, Number 193 (Thursday, October 5, 2006)]
[Notices]
[Pages 58875-58877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16514]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-546]


In the Matter of Certain Male Prophylactic Devices; Notice of 
Commission Determination To Review a Final Initial Determination in 
Part; Schedule for Filing Written Submissions on the Issues Under 
Review and on Remedy, the Public Interest, and Bonding; Extension of 
Target Date

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 determined to review in part the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on June 30, 2006, in the above-captioned investigation. The 
Commission has also determined to extend the target date for completion 
of the investigation until December 5, 2006.

FOR FURTHER INFORMATION CONTACT: Mark B. Rees, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3116. The public version 
of the ALJ's final 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-ON-LINE) at http://edis.usitc.gov. Hearing-impaired

[[Page 58876]]

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 investigation was instituted on August 
5, 2005, based on a complaint filed on behalf of Portfolio 
Technologies, Inc., of Chicago, Illinois. 70 FR 45422. The complaint, 
as amended and supplemented, alleged violations of section 337 of the 
Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into 
the United States, the sale for importation, and the sale within the 
United States after importation of certain male prophylactic devices by 
reason of infringement of claims 1-27, 31-33, and 36 of U.S. Patent No. 
5,082,004 (``the `004 patent''). The respondents named in the 
investigation are Church & Dwight Co., Inc., of Princeton, New Jersey; 
Reddy Medtech, Ltd., of Tamil Nadu, India; and Intellx, Inc., of 
Petoskey, Michigan.
    On June 30, 2006, the ALJ issued a final ID in which he ruled that 
there is no violation of section 337 of the Tariff Act of 1930, as 
amended. All parties have 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 issues of claim 
construction, invalidity due to anticipation, infringement, and 
domestic industry.
    On review, the Commission requests briefing on these issues based 
on the evidentiary record. The Commission is particularly interested in 
briefing on the following subissues: (1) The proper treatment of 
functional limitations in the asserted claims of the `004 patent, (2) 
whether the use of ``theoretical constructs'' to construe claim terms 
is appropriate, including whether the use of theoretical constructs to 
interpret claims would raise any issues under 35 U.S.C. 112, second 
paragraph; (3) the effect that the parties' proposed claim 
constructions may have on the resolution of issues concerning 
anticipation, infringement, and the technical prong of the domestic 
industry; (4) whether the ID properly applied Commission precedent to 
determine that complainant had not met the economic prong of the 
domestic industry requirement; and (5) whether the ID gave appropriate 
weight to the evidence complainant proffered to prove that a domestic 
industry exists under the economic prong. The Commission also requests 
that the parties include responses to the following question in their 
submissions:
    1. Whether the ID's construction of ``elongated tubular portion'' 
to consist of both a physical tube-like structure and a theoretical 
tube-like structure improperly reads out of the claims the limitation 
that the ``tubular portion'' be ``formed of thin membrane.''
    2. Whether a finding that the preferred embodiment depicted in 
Figure 10 of the `004 patent is not covered by any of the patent 
claims, as argued by Respondents, is permissible given the Federal 
Circuit's statement that a claim interpretation that altogether 
excludes a preferred embodiment from practicing any claims of the 
patent is ``rarely, if ever, correct.'' Pfizer, Inc. v. Teva 
Pharmaceuticals, USA, Inc., 429 F. 3d 1364, 1374 (Fed. Cir. 2005) 
(internal quotes omitted).
    3. Whether the ID, in finding no infringement of claims 22 or 25, 
took into consideration all the undisputed evidence in the record 
regarding the thickness of the Twisted Pleasure.
    4. Whether the undisputed evidence in the record (whether or not 
credited by the ALJ), in addition to the facts found by the ALJ that go 
to the existence of a domestic industry, are sufficient to support a 
finding that Complainant satisfied the economic prong of the domestic 
industry requirement.
    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 June 30, 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. Complainant is 
further requested to provide the expiration date of the `004 patent and 
state the HTSUS number under which the accused articles are imported. 
The written submissions and proposed remedial orders must be filed no 
later than close of business on October 16, 2006. Reply submissions 
must be filed no later than the close of business on October 23, 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

[[Page 58877]]

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 sections 210.42-.46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-210.46).

    By order of the Commission.

    Issued: September 29, 2006.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E6-16514 Filed 10-4-06; 8:45 am]
BILLING CODE 7020-02-P