[Federal Register Volume 74, Number 107 (Friday, June 5, 2009)]
[Notices]
[Pages 27048-27049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13110]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-623]


In the Matter of Certain R-134a Coolant (Otherwise Known As 
1,1,1,2-Tetrafluoroethane); Notice of Commission Determination To 
Review the Remand Determination of the Presiding Administrative Law 
Judge and To Extend the Target Date

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 Remand Determination (``RID'') 
issued by the presiding administrative law judge (``ALJ'') in the 
above-captioned investigation on April 1, 2009. The Commission has also 
determined to extend the target date for completion of the 
investigation to August 3, 2009.

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: The Commission instituted this investigation 
on December 31, 2007, based on a complaint filed by INEOS Fluor 
Holdings Ltd., INEOS Fluor Ltd., and INEOS Fluor Americas LLC 
(collectively, ``Ineos''). The complaint 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 R-134a coolant (otherwise 
known as 1,1,1,2-tetrafluoroethane) by reason of infringement of 
various claims of United States Patent No. 5,744,658. Complainants 
subsequently added allegations of infringement with regard to United 
States Patent Nos. 5,382,722 and 5,559,276 (``the `276 patent''), but 
only claim 1 of the `276 patent remains at issue in this investigation. 
The complaint named two respondents, Sinochem Modern Environmental 
Protection Chemicals (Xi'an) Co., Ltd. and Sinochem Ningbo Ltd. Two 
additional respondents were subsequently added: Sinochem Environmental 
Protection Chemicals (Taicang) Co., Ltd. and Sinochem (U.S.A.) Inc. The 
four respondents are collectively referred to as ``Sinochem.''
    On December 1, 2008, the ALJ issued his final ID, finding that 
Sinochem had violated section 337. He concluded that respondents' 
accused process infringed claim 1 of the `276 patent and that the 
domestic industry requirement had been met. He also found that claim 1 
was not invalid and that it was not unenforceable. The Commission 
determined to review the ALJ's final ID with regard to the effective 
filing date of the asserted claim, anticipation, and obviousness, to 
supplement the ALJ's reasoning regarding the effective filing date, and 
to remand the investigation to the ALJ to conduct further proceedings 
related to anticipation and obviousness. To accommodate the remand, the 
Commission extended the target date to June 1, 2009 and instructed the 
ALJ to issue the RID by April 1, 2009.
    The ALJ issued the RID on April 1, 2009. The RID concluded that 
Sinochem's arguments concerning anticipation and obviousness were 
waived under the ALJ's ground rules and, alternatively, that the 
arguments were without merit. Sinochem filed a petition for review of 
the RID. The Commission investigative attorney (``IA'') and Ineos 
opposed Sinochem's petition. Subsequently, Sinochem filed a motion to 
strike and for leave to file a reply to Ineos's and the IA's 
oppositions.
    Having examined the record of this investigation, including the 
ALJ's RID and the submissions of the parties, the Commission has 
determined to review the RID in its entirety.
    To assist in its review, and in order to more fully analyze 
Sinochem's ``admission''-based arguments, the Commission is interested 
in receiving further briefing on the following questions:
    (1) Based upon the undisputed scope and content of the prior art as 
set forth in the `276 patent specification and as presented by the 
expert witnesses at trial, what differences exist between the prior art 
and claim 1 of the `276 patent?
    (2) Based on your answer to question (1), would claim 1 have been 
obvious in light of the remand references to a person of ordinary skill 
in the art under KSR International, Co. v. Teleflex Co., 550 U.S. 398 
(2007)?
    (3) Are the ALJ's conclusions regarding waiver consistent with 
Commission Rule 210.14(c)? If not, what is the effect on the ALJ's 
conclusions in the remand determination?
    (4) Does the exception to the ALJ's ground rule reciting that 
``contentions of which a party is not aware and could not be aware in 
the exercise of reasonable diligence at the time of filing the pre-
hearing statements'' apply to Respondents' contentions regarding 
admissions elicited during the hearing? If so, what is the effect on 
the ALJ's conclusions in the remand determination?
    The Commission has determined to extend the target date for 
completion of this investigation to August 3, 2009, in order to provide 
adequate time for review of the RID. The Commission has determined to 
deny as moot Sinochem's motion to strike and for leave to file a reply.
    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. The 
written submissions must be filed no later than close of business on 
June 15, 2009. Reply submissions must be filed no later than the close 
of business on June 25, 2009. 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

[[Page 27049]]

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 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 the Commission's Rules of Practice and Procedure (19 CFR Part 210).

    By order of the Commission.

    Issued: June 1, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-13110 Filed 6-4-09; 8:45 am]
BILLING CODE 7020-03-P