[Federal Register Volume 72, Number 188 (Friday, September 28, 2007)]
[Notices]
[Pages 55249-55250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19168]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-604]


In the Matter of Certain Sucralose, Sweeteners Containing 
Sucralose, and Related Intermediate Compounds Thereof; Notice of 
Commission Determination To Review and Vacate an Initial Determination 
Denying a Motion To Terminate the Investigation With Regard to Three 
Patents

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 and vacate an initial determination 
(``ID'') (Order No. 11) of the presiding administrative law judge 
(``ALJ'') in the above-captioned investigation denying a motion to 
terminate the investigation as to United States Patent Nos. 4,980,463, 
5,470,969, and 5,034,551.

FOR FURTHER INFORMATION CONTACT: James Worth, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street, SW., 
Washington, DC 20436, telephone (202) 205-2065. 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 at 
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 May 10, 2007, based upon a complaint filed on behalf of Tate & Lyle 
Technology Ltd. of London, United Kingdom, and Tate & Lyle Sucralose, 
Inc. of Decatur, Illinois (collectively, ``Tate & Lyle''). The 
complaint alleged a violation of section 337(a)(1)(B) of the Tariff Act 
of 1930 (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 sucralose, sweeteners containing sucralose, and related 
intermediate compounds thereof by reason of infringement of various 
claims of United States Patent Nos. 4,980,463 (``the '463 patent''), 
5,470,969 (``the '969 patent''), 5,034,551 (``the '551 patent''), 
5,498,709, and 7,049,435. The notice of investigation named twenty-five 
respondents.
    On June 12, 2007, respondents Changzhou Niutang Chemical Plant Co., 
Ltd.; U.S. Niutang Chemical, Inc.; Garuda International Inc.; Guangdong 
Food Industry Institute; and L&P Food Ingredient Co., Ltd. 
(collectively, ``Changzhou'') filed a motion to terminate the 
investigation with respect to the '463 patent, the '969 patent, and the 
'551 patent. Several other respondents joined Changzhou's motion to 
terminate. Tate & Lyle opposed the motion. The Commission investigative 
attorney (``IA'') supported the motion with respect to the '551 patent, 
but not with respect to the '463 patent or the '969 patent.
    On August 8, 2007, the ALJ issued an ID (Order No. 11), denying 
Changzhou's motion to terminate the investigation with regard to the 
'463 patent, the '969 patent, and the '551 patent. The ALJ issued his 
order in the form of an ID under 19 CFR 210.42, pursuant to the notice 
of investigation. The complainants, certain respondents, and the 
Commission investigative attorney filed petitions for review of Order 
No. 11.
    Having examined the record of this investigation, including the 
ALJ's ID and the submissions of the parties, the Commission has 
determined to review and vacate the ALJ's ID. The issues raised by 
Changzhou's motion, including whether the importation of the finished 
product alone (sucralose) constitutes a violation of section 337 based 
on the '463, '969, and '551 patents, and the ID, including whether 
trace amounts of an intermediate product or catalyst in the imported 
product can constitute a violation of section 337, may be addressed in 
the final initial determination (or earlier, if appropriate).
    In addressing these issues, the parties and the ALJ should consider 
the following:
    1. The amount of any subject product which has been or is currently 
being imported.
    2. Whether there is a difference in effective scope between 35 
U.S.C. 271(g)

[[Page 55250]]

and 19 U.S.C. 1337(a)(1)(B)(ii). Whether this question has been decided 
by Kinik v. International Trade Commission, 362 F.3d 1359, 1361-63 
(Fed. Cir. 2004).
    3. The language and legislative history of 19 U.S.C. 
1337(a)(1)(B)(ii) and the language and legislative history of former 
section 337a (former 19 U.S.C. 1337a). The statements in Amgen v. ITC, 
902 F.2d 1532 (Fed. Cir. 1990), as to ``covered'' and that former 
section 337a was reenacted as section 337(a)(1)(B)(ii) without a change 
in scope. Any special rule of statutory interpretation that should be 
applied given that former section 337a was enacted in response to In re 
Amtorg Trading Corp., 75 F.2d 826 (CCPA 1935). The processes and 
patents in In re Amtorg Trading Corp. and in In re Northern Pigment 
Co., 71 F.2d 447 (CCPA 1934), and the underlying Commission 
proceedings. The processes and patents in all Commission and related 
court proceedings involving process patents and section 337 before and 
after the enactment of former section 337a.
    4. The Supreme Court's recent decision in Microsoft Corp. v. AT&T 
Corp., 550 U.S.--(2007).
    5. How the above cases may best be read in conjunction with each 
other.
    The Commission has also determined to grant the investigative 
attorney's motion for leave to file its petition for review out of time 
and to deny Tate & Lyle's motion for oral argument on review as moot.
    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 210.43-45 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.43-45).

    By order of the Commission.

    Issued: September 24, 2007.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E7-19168 Filed 9-27-07; 8:45 am]
BILLING CODE 7020-02-P