[Federal Register Volume 74, Number 242 (Friday, December 18, 2009)]
[Notices]
[Pages 67250-67251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30139]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-632]


Certain Refrigerators and Components Thereof; Notice of 
Commission Determination To Review in Its Entirety a Final 
Determination on Remand Finding No Violation of Section 337; Schedule 
for Briefing on the Issues on Review and on Remedy, the Public 
Interest, and Bonding

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 its entirety the presiding 
administrative law judge's (``ALJ'') final initial determination 
(``ID'') on remand issued on October 9, 2009, in the above-captioned 
investigation. The Commission is also requesting briefing on one issue 
on review and on remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-2301. Copies of the 
ALJ's IDs and all other 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: On February 21, 2008, the Commission 
instituted this investigation, based on a complaint filed by Whirlpool 
Patents Company of St. Joseph, Michigan; Whirlpool Manufacturing 
Corporation of St. Joseph, Michigan; Whirlpool Corporation of Benton 
Harbor, Michigan, and Maytag Corporation of Benton Harbor, Michigan 
(collectively, ``Whirlpool''). The complaint, as supplemented, alleged 
violations of section 337 of the Tariff Act of 1930, 19 U.S.C.* 1337, 
based upon the importation into the United States, the sale for 
importation, and the sale within the United States after importation of 
certain refrigerators and components thereof that infringe certain 
claims of U.S. Patent Nos. 6,082,130 (``the '130 patent); 6,810,680 
(``the '680 patent''); 6,915,644 (``the '644 patent''); 6,971,730 
(``the '730 patent''); and 7,240,980 (``the '980 patent''). Whirlpool 
named LG Electronics, Inc.; LG Electronics, USA, Inc.; and LG 
Electronics Monterrey Mexico, S.A., De, CV (collectively, ``LG'') as 
respondents. The complaint, as supplemented, further alleged that an 
industry in the United States exists as required by subsection (a)(2) 
of Section 337 and requested that the Commission issue an exclusion 
order and cease and desist orders.
    On May 1, 2008, Whirlpool filed a motion to partially terminate the 
investigation based on their withdrawal of the '730 patent and the '980 
patent. On June 9, 2009, the ALJ issued an ID, Order No. 8, terminating 
the investigation, in part, as to the '730 and '980 patents. LG 
supported the motion. On June 24, 2008, the Commission determined not 
to review Order No. 8.
    On September 11, 2008, Whirlpool and LG filed a joint motion 
seeking termination of this investigation with respect to the `680 
patent and the `644 patent on the basis of a settlement agreement. On 
September 25, 2008, the ALJ issued an ID, Order No. 10, terminating the 
investigation, in part, as to the `680 and `644 patents. No petitions 
for review were filed. On October 27, 2008, the Commission determined 
not to review Order No. 10.
    On October 17, 2008, Whirlpool filed a motion for summary 
determination that it had satisfied the importation requirement. On 
November 20, 2008, the ALJ issued an ID, Order No. 14, granting 
complainant's motion for summary determination of importation. No 
petitions for review were filed. On December 15, 2008, the Commission 
issued notice that it had determined not to review Order No. 14.
    On July 24, 2008, Whirlpool filed a motion seeking leave to amend 
the complaint and notice of investigation to (1) remove references to 
patents that had been withdrawn from this investigation; (2) add a 
reference to a non-exclusive license that relates to two patents at 
issue; and (3) update the current state of the domestic industry. On 
November 25, 2008, the ALJ issued Order No. 15, in which he granted 
Whirlpool's motion as to (1) and (3) above and denied it with respect 
to (2). No petitions for review were filed. The Commission determined 
not to review the subject ID on December 15, 2008.
    On February 26, 2009, the ALJ issued a final ID, in which he found 
no violation of Section 337. On March 11, 2009, Whirlpool filed a 
petition for review, and LG filed a contingent petition for review. 
Whirlpool, LG and the Commission investigative attorney (``IA'') filed 
responses. On April 27, 2009, the Commission determined to review the 
final ID in its entirety. 74 FR 20345-6 (May 1, 2009). In particular, 
the Commission was concerned with the ALJ's claim construction of the 
terms ``freezer compartment,'' ``disposed within the freezer 
compartment,'' and ``ice storage bin having a bottom opening.'' The 
Commission asked the parties to address several questions concerning 
claim construction.
    After receiving briefing from the parties, the Commission 
determined to modify the ALJ's claim constructions of the terms 
``freezer compartment,'' ``disposed within the freezer compartment,'' 
and ``ice storage bin having a bottom opening,'' determined to affirm 
the final ID's construction of the term ``ice maker,'' and determined 
to remand the investigation to the ALJ to make findings regarding 
infringement, validity, and domestic industry consistent with the 
Commission's claim constructions. The Commission further ordered the 
ALJ to issue a remand ID (``RID'') on violation and a recommended 
determination on remedy and bonding. The Commission also issued an 
Opinion detailing its reasons for modifying the claim constructions.
    On July 22, LG filed a petition for reconsideration of the 
Commission's decision to modify the ALJ's claim constructions of the 
phrases ``freezer compartment'' and ``disposed within the freezer 
compartment.'' On August 28, 2009, the Commission denied LG's petition.
    On October 9, 2009, the ALJ issued his RID, in which he found no 
violation of Section 337. Specifically, the ALJ found that the accused 
refrigerators and components thereof do not infringe claims 1, 2, 4, 6, 
8, and 9 of the `130 patent literally or under the doctrine of 
equivalents. The ALJ also found that claims 1, 2, 4, 6, and 9 of the 
`130 patent are invalid under 35 U.S.C. 103 for obviousness, but that 
claim 8 of the `130 patent is not invalid under 35 U.S.C. 103. The ALJ 
further found that a domestic industry exists.

[[Page 67251]]

    On October 26, 2009, Whirlpool filed a petition for review 
challenging the RID's conclusion of non-infringement and obviousness. 
LG also filed a contingent petition for review challenging the ALJ's 
findings concerning non-obviousness and his conclusion that a domestic 
industry exists. On November 3, 2009, LG filed a response to 
Whirlpool's petition. On November 4, 2009, Whirlpool filed a response 
to LG's petition. On November 6, 2009, the IA filed a combined response 
to both petitions.
    Having examined the record of this investigation, including the 
ALJ's final RID, the Commission has determined to review the RID in its 
entirety.
    The parties are requested to brief their positions on the issues 
under review with reference to the applicable law and the evidentiary 
record. In connection with its review, the Commission is particularly 
interested in responses to the following question:

    Does the prior art of record show an ice discharge chute, as 
recited in claim 2 of the `130 patent, that is separate from and 
below the bottom opening of the ice storage bin? Can this prior art 
be combined with the Hitachi reference, or any other prior art 
references that are currently in the record, to render claim 2 
obvious?

    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(s) 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 issue identified in this notice. 
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.
    Complainants and the IA 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 Wednesday, December 30, 2009. Reply submissions 
must be filed no later than the close of business on Thursday, January 
7, 2010. 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 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 *210.6. 
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 210.42-46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).

    By order of the Commission.

    Issued: December 14, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-30139 Filed 12-17-09; 8:45 am]
BILLING CODE 7020-02-P