[Federal Register Volume 74, Number 24 (Friday, February 6, 2009)]
[Notices]
[Pages 6307-6308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2536]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-533 (Remand)]


In the Matter of Certain Rubber Antidegradants, Components 
Thereof, and Products Containing Same; 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.

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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'') in the above-captioned 
investigation 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 
with a finding of no violation of section 337.

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://

[[Page 6308]]

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 March 29, 2005, based on a complaint brought by Flexsys America L.P. 
(``Flexsys''), alleging a violation of section 337 in the importation, 
the sale for importation, or the sale after importation of certain 
rubber antidegradants, components thereof, or products containing same 
with respect to claims 30 or 61 of U.S. Patent No. 5,117,063 (``the 
`063 patent''), claims 7 or 11 of U.S. Patent No. 5,608,111 (``the `111 
patent''), or claims 1, 32, or 40 of U.S. Patent No. 6,140,538 (``the 
`538 patent''). 70 FR 15,855 (Mar. 29, 2005).
    The complaint named as respondents Sinorgchem Co. (``Sinorgchem'') 
of Shandong, China, as well as Sovereign Chemical Company 
(``Sovereign''), Korea Kumho Petrochemical Co., Ltd. (``KKPC''), Vilax 
Corporation (``Vilax''), and Stolt-Nielson Transportation Group Ltd. 
(``Stolt-Nielson''). The investigation was terminated with regard to 
the `538 patent, and with regard to Vilax and Stolt-Nielson.
    On February 16, 2006, the presiding administrative law judge issued 
his original final initial determination (``ID''), finding that 
Sinorgchem and Sovereign had violated section 337 with respect to the 
asserted claims of the `063 and `111 patents, but finding that KKPC had 
not. All parties petitioned for review of various parts of the final 
ID. The Commission reviewed the ALJ's final ID in its entirety. 71 FR 
20131 (April 19, 2006). On review, the Commission found a violation of 
section 337 with respect to the asserted claims, and issued a limited 
exclusion order. The limited exclusion order barred the unauthorized 
importation into the United States by Sinorgchem and Sovereign of 4-
ADPA made by a process covered by claim 30 of the `063 patent or claim 
7 of the `111 patent, and 6-PPD made by a process covered by claim 61 
of the `063 patent or claim 11 of the `111 patent.
    Sinorgchem appealed the Commission's final determination to the 
U.S. Court of Appeals for the Federal Circuit (``Federal Circuit''). On 
December 21, 2007, the Federal Circuit issued its judgment vacating and 
remanding the Commission's final determination for further proceedings 
consistent with the Court's opinion. Sinorgchem Co., Shandong v. 
International Trade Commission, 511 F.3d 1132 (Fed. Cir. 2007) 
(``Sinorgchem'').
    On June 3, 2008, the Commission issued notice of its determination 
to rescind the limited exclusion order relating to the importation of 
rubber antidegradant products. The Commission also determined to remand 
the investigation to the presiding ALJ for proceedings consistent with 
Sinorgchem, including issuance of a final initial determination on 
violation and a recommended determination on remedy and bonding.
    On August 29, 2008, the Commission issued notice of its 
determination not to review an ID terminating the investigation as to 
Sovereign on the basis of a settlement agreement and consent order.
    On December 3, 2008, the presiding administrative law judge issued 
his final initial determination on remand (``IDR'') finding no 
violation of section 337 in the above-identified investigation. In his 
IDR, the administrative law judge found no infringement of the asserted 
claims under the doctrine of equivalents. The administrative law judge 
further explained that under the remand instructions of the Federal 
Circuit, affirmative invalidity defenses need only be reached if the 
Commission finds infringement under the doctrine of equivalents. The 
administrative law judge nevertheless found that the asserted claims 
are not invalid by reason of alleged obviousness and that the 
complainant has satisfied the technical prong of the domestic industry 
requirement. All of the parties filed petitions for review.
    Having examined the relevant portions of the record in this 
investigation, including the IDR, the petitions for review, and the 
responses thereto, the Commission has determined to (1) review and take 
no position on (a) the administrative law judge's finding of no 
infringement under the doctrine of equivalents to the extent it is 
based on argument-based prosecution history estoppel and (b) the 
administrative law judge's findings with respect to obviousness; 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 of section 
210.42(h) of the Commission's Rules of Practice and Procedure (19 CFR 
210.42(h)).

    By order of the Commission.

    Issued: February 2, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-2536 Filed 2-5-09; 8:45 am]
BILLING CODE 7020-02-P