[Federal Register Volume 74, Number 198 (Thursday, October 15, 2009)]
[Notices]
[Pages 52975-52976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24787]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-641]


In the Matter of Certain Variable Speed Wind Turbines and 
Components 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 a 
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://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 March 
31, 2008, based upon a complaint filed on behalf of General Electric 
Company (``GE'') of Fairfield, Connecticut on February 7, 2008. 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 variable speed wind turbines and components 
thereof that infringe claims 121-125 of U.S. Patent No. 5,083,039 
(``the `039 patent'') and claims 1-12, 15-18, and 21-28 of U.S. Patent 
No. 6,921,985 (``the `985 patent'').
    The notice of investigation named as respondents Mitsubishi Heavy 
Industries, Ltd. (``MHI'') of Tokyo, Japan; Mitsubishi Heavy Industries 
America, Inc. (``MHIA'') of New York, New York; and Mitsubishi Power 
Systems, Inc. (``MPSA'') of Lake Mary, Florida.
    On October 8, 2008, the Commission issued notice of its 
determination not to review an ID (Order No. 10) granting GE's motion 
to amend its complaint and the notice of investigation to add claims 1-
19 of United States Patent No. 7,321,221 (``the `221 patent'') to this 
investigation.
    On April 21, 2009, the Commission issued notice of its 
determination not to review an ID (Order No. 30) granting GE's amended 
motion for summary determination that it had satisfied the economic 
prong of the domestic industry requirement with respect to all three 
asserted patents.
    The ALJ conducted an evidentiary hearing commencing on May 11, 
2009. At the hearing, GE narrowed the number of asserted claims to: 
claim 121 of the `039 patent; claims 5, 7, and 8 of the

[[Page 52976]]

`221 patent; and claim 15 of the `985 patent.
    On August 7, 2009, the ALJ issued a final ID finding a violation of 
section 337 in this investigation. The ALJ found that there was a 
violation in the sale for importation, importation, or sale after 
importation by respondents MHI and MPSA with respect to claim 121 of 
the `039 patent and claim 15 of the `985 patent. The ALJ found that 
there was no violation with respect to these claims by MHIA. The ALJ 
also found that there was no violation of section 337 by any party with 
respect to claims 5, 7, and 8 of the `221 patent.
    On August 24, 2009, the parties filed three petitions and/or 
contingent petitions for review: (1) MHI, MPSA, and MHIA; (2) GE; and 
(3) the Commission investigative attorney. On September 1, 2009, each 
of the parties filed responses thereto.
    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, 
except the issue of importation and the intent finding underlying the 
ALJ's inequitable conduct determination.
    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) If the Commission were to adopt the claim constructions 
presented to the administrative law judge by Mitsubishi or the 
Commission investigative attorney, would the Mitsubishi Wind Turbines 
or the GE Wind Turbines satisfy these claim constructions under the 
doctrine of equivalents?
    (2) Does the Commission need to address the issue of inventorship 
to determine whether GE has standing to assert infringement of the `985 
patent?
    (3) Does claim 15 of the `985 patent require that the device shunt 
current away from both the inverter and the generator rotor? Can the 
shunt circuit be located within the inverter?
    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 October 22, 2009. Reply submissions must be 
filed no later than the close of business on November 2, 2009. 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: October 8, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-24787 Filed 10-14-09; 8:45 am]
BILLING CODE 7020-02-P