[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Notices]
[Pages 57653-57654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23377]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-571]


In the Matter of Certain L-Lysine Feed Products, Their Methods of 
Production and Genetic Constructs for Production; Notice of Commission 
Determination (1) To Review and Not Take a Position on Certain Issues 
in the Final Initial Determination of the Administrative Law Judge and 
(2) Not To Review the Remainder of the Final Initial Determination; 
Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined (1) to review and not take a position on 
certain issues in the final initial determination (``ID'') of the 
presiding administrative law judge (``ALJ'') and (2) not to review the 
remainder of the ID finding no violation of section 337 of the Tariff 
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''). This action 
terminates the investigation.

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) 205-3065. 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 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: On May 31, 2006, the Commission instituted 
this investigation based upon a complaint filed on behalf of Ajinomoto 
Heartland LLC (Chicago, Illinois) (``Ajinomoto Heartland''). 71 FR 
30958 (May 31, 2006). The complaint, as amended, alleged violations of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337''), in the importation into the United States, the

[[Page 57654]]

sale for importation, and the sale within the United States after 
importation of certain L-lysine feed products and genetic constructs 
for production thereof by reason of infringement of claims 13, 15-19, 
and 21-22 of U.S. Patent No. 5,827,698 (``the `698 patent'') and claims 
1, 2, 15, and 22 of U.S. Patent No. 6,040, 160 (``the '160 patent'').
    The complaint named as respondents Global Bio-Chem Technology, 
Group Company Ltd. (Admiralty, Hong Kong), Changchun Dacheng Bio-Chem 
Engineering Development Co., Ltd., (Jilin Province, China), Changchun 
Baocheng Bio Development Co., Ltd. (Jilin Province, China), Changchun 
Dahe Bio Technology Development Co., Ltd. (Jilin Province, China), Bio-
Chem Technology (HK) Ltd. (Admiralty, Hong Kong) (collectively, 
``GBT''). 71 FR 30958. On June 29, 2006, Ajinomoto Heartland further 
amended the complaint and notice of institution by adding its parent 
company, Ajinomoto, Inc. (Tokyo, Japan) as a complainant. 71 FR 43209 
(July 31, 2006).
    On October 15, 2007, the Commission determined not to review an 
order of the ALJ, granting Ajinomoto's motion to withdraw claims 1, 2, 
and 22 of the `160 patent and claims 13, 16-19, and 21-22 of the `698 
patent.
    On July 31, 2008, the ALJ issued his final ID, in which he found no 
violation of section 337 with regard to either the `160 or the `698 
patents because he found that the asserted claims of both patents were 
invalid for failure to satisfy the best mode requirement of 35 U.S.C. 
112 ] 1 on two separate grounds and that both patents were 
unenforceable because of inequitable conduct. He found infringement of 
the asserted claims through importation of lysine made using the 
``old'' strain of E. coli by GBT, but not the ``new'' strain, based 
upon the stipulation of the parties. The ALJ also found the existence 
of a domestic industry for the asserted claims, and found that the 
asserted claims were not invalid for obviousness or obviousness-type 
double patenting, and that the asserted patents were not unenforceable 
by reason of unclean hands.
    On August 19, 2008, Ajinomoto petitioned for review of the ALJ's 
final ID regarding invalidity of the asserted claims for failure to 
meet the best mode requirement and unenforceability of the patents 
because of inequitable conduct. Neither GBT nor the Commission 
investigative attorney petitioned for review of any part of the ID.
    Having examined the relevant portions of the record in this 
investigation, including the final ID, the petition for review, and the 
responses thereto, the Commission has determined (1) to review and take 
no position on (a) the ALJ's finding that claim 15 of the `160 patent 
is invalid for failure to meet the best mode requirement to the extent 
that finding is based on alleged fictitious data and (b) the ALJ's 
finding that the `160 patent is unenforceable for inequitable conduct 
and (2) not to review the remainder of the ID. Thus, the investigation 
is terminated with a finding of no violation of section 337.
    This action is taken under the authority of 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).

    By order of the Commission.

    Issued: September 29, 2008.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8-23377 Filed 10-2-08; 8:45 am]
BILLING CODE 7020-02-P