[Federal Register Volume 73, Number 230 (Friday, November 28, 2008)]
[Notices]
[Pages 72526-72527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28223]


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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 a Final Initial Determination of the 
Administrative Law Judge

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 the final initial determination 
(``ID'') of the presiding administrative law judge (``ALJ'') in the 
above-captioned investigation under section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337''). The ALJ found no 
violation of section 337 except with respect to certain non-
participating and defaulted respondents.

FOR FURTHER INFORMATION CONTACT: James A. 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 
(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 violations 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 August 15, 2007, the Commission issued notice of its 
determination not to review an ID allowing JK Sucralose, Inc. to 
intervene as a respondent to the investigation. On August 30, 2007, the 
Commission issued notice of its determination not to review an ID 
terminating the investigation with respect to ProFood International 
Inc. on the basis of a consent order. On October 3, 2007, the 
Commission issued notice of its determination not to review an ID 
adding Heartland Sweeteners, LLC as a respondent to the investigation.
    On September 22, 2008, the presiding administrative law judge 
issued a final initial determination (``final ID'') finding no 
violation of section 337 in the above-identified investigation (with 
the exception of certain non-participating and defaulted respondents).
    On October 6, 2008, Tate & Lyle, four sets of respondents, and the 
Commission investigative each filed a petition for review. On October 
14, 2008, each filed a response.
    Having examined the final ID, the petitions for review, the 
responses thereto, and the relevant portions of the record in this 
investigation, the Commission has determined to review the final ID in 
its entirety.
    The Commission requests briefing based on the evidentiary record on 
the issues on review. The Commission is particularly interested in 
responses to the following questions:
    (1) Regarding the issue of whether 19 U.S.C. 1337(a)(1)(B)(ii) 
extends to the `551, `969, and `463 patents: Is this issue a matter of 
jurisdiction or does it go to the merits of whether there is a 
violation of section 337? Does the exclusion order in the investigation 
which was the subject of In re Northern Pigment Co., 71 F.2d 447, 22 
CCPA 166 (1934) suggest that Sec.  1337(a)(1)(B)(ii) has the same scope 
as 35 U.S.C. 271(g)?
    (2) Would a sucralose product containing the tin catalyst that is 
addressed by the process claimed in the `551 patent be safe for human 
consumption and otherwise salable as a

[[Page 72527]]

commercial product? In your response, please include a discussion of 
the testimony of Dr. Fraser-Reid at page 1874 of the transcript.
    (3) Is there infringement of the asserted claims of the `463 patent 
under the doctrine of equivalents?
    (4) Was the presence of 1',6'-dichlorosucrose-6-ester necessary to 
distinguish the asserted claims of the `463 patent from the prior art? 
Is it necessary to interpret the phrase ``in situ'' in the Mufti 
reference in order to determine the validity of the `463 patent?
    (5) What proof would be necessary for Tate & Lyle to show 
infringement of the asserted claims of the `551 and `969 patents?
    (6) Are the asserted claims of the `551 and `969 patents invalid 
for obviousness in light of the use of organic tin catalysts in the 
prior art?
    In connection with the final disposition of this investigation, the 
Commission may issue (1) an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
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 are likely to do so. For background 
information, see the Commission Opinion, In the Matter of Certain 
Devices for Connecting Computers via Telephone Lines, Inv. No. 337-TA-
360.
    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 a bond, in an amount to be 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, including references to exhibits and testimony. 
Additionally, the parties to the investigation, interested government 
agencies, and any other interested persons are encouraged to file 
written submissions on the issues of remedy, the public interest, and 
bonding. Such submissions should address the ALJ's recommended 
determination 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 requested to 
supply the expiration dates of the patents at issue and the HTSUS 
numbers under which the accused products are imported. The written 
submissions and proposed remedial orders must be filed no later than 
the close of business on December 5, 2008. Reply submissions must be 
filed no later than the close of business on December 12, 2008. No 
further submissions will be permitted unless otherwise ordered by the 
Commission.
    Persons filing written submissions must file with the Office of the 
Secretary the original and 12 true copies thereof on or before the 
deadlines stated above. 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 19 CFR 201.6. Documents for which confidential treatment 
is granted by the Commission will be treated accordingly. All 
nonconfidential written submissions will be available for public 
inspection at the Office of the Secretary.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and under sections 
210.42-.46 of the Commission's Rules of Practice and Procedure (19 CFR 
210.42-.46).

    Issued: November 21, 2008

    By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E8-28223 Filed 11-26-08; 8:45 am]
BILLING CODE 7020-02-P