[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Notices]
[Pages 75768-75770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29454]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-615]


In the Matter of Certain Ground Fault Circuit Interrupters and 
Products Containing Same; Notice of Commission Determination To Review 
in Part a Final Determination on Violation of Section 337; Schedule for 
Briefing on the Issues on Review and on Remedy, Public Interest, and 
Bonding; Denial of Motion for Leave To File a Reply

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'') in the above-captioned investigation finding a violation of 
19 U.S.C. 1337 (``section 337'') in the importation into the United 
States, the sale for importation, or the sale within the United States 
after importation of certain ground fault circuit interrupters and 
products containing same by reason of infringement of one or more of 
claims 1, 7, and 8 of U.S. Patent No. 5,594,398 (``the `398 patent''); 
claims 14, 18, and 30 of U.S. Patent No. 7,283,340 (``the `340 
patent''); claim 1 of U.S. Patent No. 7,212,386 (``the `386 patent''); 
claims 1 and 15 of U.S. Patent No. 7,164,564 (``the `564 patent''); 
claim 1 of U.S. Patent No. 7,256,973 (``the `973 patent''); and claim 
52 of U.S. Patent No. 7,154,718 (``the `718 patent'').

FOR FURTHER INFORMATION CONTACT: Paul M. Bartkowski, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-5432. 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: This investigation was instituted on 
September 18, 2007, based on a complaint filed by Pass & Seymour, Inc. 
(``P&S'') of Syracuse, New York. The complaint, as supplemented, 
alleged violations of section 337 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 
certain ground fault circuit interrupters and products containing the 
same by reason of infringement of certain claims of certain United 
States patents. The complaint named 15 respondents: General Protecht 
Group, Inc. (``GPG'') of Zhejiang, China; General Protecht Group U.S., 
Inc. of Atlanta, Georgia; Shanghai ELE Manufacturing Corporation 
(``ELE'') of Shanghai, China; Shanghai Meihao Electric, Inc. 
(``Meihao'') of Shanghai, China; Wenzhou Trimone Company (``Trimone'') 
of Zhejiang, China; Cheetah USA Corp. (``Cheetah'') of Sandy, Utah; GX 
Electric (``GX'') of Pompano Beach, Florida; Nicor Inc. (``Nicor'') of 
Albuquerque, New Mexico; Orbit Industries, Inc. (``Orbit'') of Los 
Angeles, California; The Designer's Edge (``TDE'') of Bellevue, 
Washington; Universal Security Instruments, Inc. (``USI'') of Owings 
Mills, Maryland; Colacino Electric Supply, Inc. (``Colacino'') of 
Newark, New York; Ingram Products, Inc. (``Ingram'') of Jacksonville, 
Florida; Lunar Industrial & Electrical, Inc. (``Lunar'') of Miami, 
Florida; and Quality Distributing, LLC. (``Quality'') of Hillsboro, 
Oregon.
    After institution of the investigation, by separate initial 
determinations, each of which the Commission determined not to review, 
respondents Lunar, GX, Ingram, Quality, General Protecht Group U.S., 
Inc., and USI were terminated from the investigation; the `340 patent 
was added to the investigation; P&S's motion for summary determination 
that it satisfied the economic prong of the domestic industry 
requirement was granted with respect to all asserted patents; and the 
investigation was terminated with respect to all claims except claims 
1, 7, and 8 of the `398 patent, claim 1 of the `386 patent, claims 14, 
18, and 30 of the `340 patent, claims 1 and 15 of the `564 patent; 
claims 1, 2, 5, and 6 of the `973 patent; and claim 52 of the `718 
patent.
    On September 24, 2008, the ALJ issued his final ID, finding a 
violation with respect to each patent by each remaining respondent. 
Respondents ELE (in a joint brief with its respondent customers 
Cheetah, Colacino, Orbit, and Nicor), Meihao (in a joint brief with its 
respondent customer TDE), GPG, and Trimone each filed a petition for 
review of the ID. P&S and the Commission investigative attorney 
(``IA'') each filed a response to the respondents' petitions for 
review. Meihao filed a motion for leave to file a reply to P&S's 
response, along with a proposed reply submission.
    Having examined the record of this investigation, including the 
ALJ's final ID and the submissions of the parties, the Commission has 
determined to deny Meihao's motion for leave to file a reply, and has 
determined to review the final ID in part. Specifically, the Commission 
has determined to review (1) The ALJ's construction of ``unitary, 
electrically conducting member carrying a pair of spaced electrical 
contacts'' in the asserted claims of the `398 patent and related issues 
of infringement, domestic industry, and validity; (2) the ALJ's 
construction of ``mounting means'' in the asserted claims of the `398 
patent and related issues of infringement, domestic industry, and 
validity; (3) the ALJ's construction of ``latching means'' in the `398 
patent and related issues of infringement, domestic industry, and 
validity; (4) the ALJ's conclusion that the asserted claims of the `340 
patent are not invalid; (5) the ALJ's construction of ``an actuator 
assembly configured to provide an actuator signal in response to the 
fault detection or the wiring state detection signal'' in claim 1 of 
the `386 patent and related issues of infringement, domestic industry, 
and validity; (6) the ALJ's construction of ``the circuit interrupter 
being configured to disconnect the first conductive path from the 
second conductive path in response to the actuator signal in the reset 
state'' in claim 1 of the `386 patent and related issues of 
infringement,

[[Page 75769]]

domestic industry, and validity; (7) the ALJ's determination that claim 
1 of the `386 patent is not invalid; (8) the ALJ's determination of 
infringement of claim 1 of the `973 patent regarding ELE's 2006 GFCIs; 
and (9) the ALJ's construction of ``cantilever'' in claim 52 of the 
`718 patent and related issues of infringement, domestic industry, and 
validity. The Commission requests briefing based on the evidentiary 
record on these topics. The Commission is particularly interested in 
responses to the following questions:
    Regarding the `398 patent:
    (1) How would modifying the construction to more clearly provide 
meaning to the terms ``unitary'' and ``carrying'' affect the 
determinations of infringement, validity, and domestic industry, if at 
all?
    (2) Please specifically address the statement made in reference to 
the Doyle and Van Haaren patents in CX-9, PS-ITC 336699, referenced in 
P&S's response to the petitions for review, in your response to 
question (1).
    (3) Is ``mounting'' a required function of the claimed ``mounting 
means''? If so, what structure from the `398 patent performs the 
function of ``mounting''?
    (4) How would modifying the structure identified as corresponding 
to the ``latching means'' to include the ``latch member'' disclosed in 
the `398 patent affect the determinations of infringement, validity, 
and domestic industry?
    (5) Does the structure in Trimone's 2006 GFCIs accused of meeting 
the ``mounting means'' limitation permit movement to a ``second 
position, wherein both of said pair of contacts are in spaced, circuit-
breaking relation to said pair of terminals''?
    Regarding the `340 patent:
    (1) Does the DiSalvo patent's statement that ``[c]losing the reset 
contacts activates the operation of the circuit by, for example 
simulating a ground fault * * *'' constitute a disclosure of ``a 
predetermined signal not simulating a fault condition''? If so, are the 
asserted claims of the `340 patent obvious over the DiSalvo patent?
    (2) Does the Neiger patent's disclosure of a circuit that detects a 
miswire condition constitute a disclosure of ``at least one detection 
circuit * * * configured to generate a predetermined signal in response 
to detecting a proper wiring condition,'' under the ALJ's construction 
of ``detection''? If so, are the asserted claims of the `340 patent 
obvious over the Neiger patent?
    (3) Please address any remaining arguments, that were previously 
raised, in favor of obviousness/nonobviousness of the asserted claims 
of the `340 patent that were not discussed in response to questions (1) 
and (2).
    Regarding the `386 Patent:
    (1) What effect would a construction that recognizes that the 
``configured to disconnect'' limitation requires the device to trip in 
response to an actuator signal--whether that actuator signal is 
generated in response to either a fault detection signal or a wiring 
state detection signal--in the reset state have on infringement, 
domestic industry, and validity? Please provide record evidence 
supporting your conclusions under such a construction.
    (2) Please provide specific limitations of claim 1 of the `386 
patent that are not disclosed in the DiSalvo patent, and supporting 
evidentiary citations.
    Regarding the `973 patent:
    In what way is the ``user-accessible housing feature'' in ELE's 
device, that is, the hole, in communication with the switch element?
    Regarding the `718 patent:
    What effect would modifying the ALJ's construction of 
``cantilever'' to adopt Meihao's proposed construction have on the 
determinations of infringement, validity, and domestic industry 
regarding the `718 patent?
    Furthermore, 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 the respondent 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 U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). 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 if a remedy is ordered.
    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, 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 recommended determination 
by the ALJ on remedy and bonding. Further, regarding the potential 
issuance of a general exclusion order, the Commission requests briefing 
specific to whether the statutory criteria set forth in section 
337(d)(2) are met in this investigation. Complainants and the 
Commission investigative attorney are also requested to submit proposed 
remedial orders for the Commission's consideration. Complainants are 
also requested to state the dates that the patents expire and the HTSUS 
numbers under which the accused products are imported. The written 
submissions and proposed remedial orders must be filed no later than 
close of business on December 22, 2008. Reply submissions must be filed 
no later than the close of business on December 31, 2008. 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 
to the Commission in confidence must request confidential treatment 
unless the information has

[[Page 75770]]

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 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 section 210.42 of the Commission's Rules of Practice and Procedure 
(19 CFR 210.42).

    By order of the Commission.

    Issued: December 8, 2008.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8-29454 Filed 12-11-08; 8:45 am]
BILLING CODE 7020-02-P