[Federal Register Volume 75, Number 189 (Thursday, September 30, 2010)]
[Notices]
[Page 60480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24566]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-686]


In the Matter of Certain Bulk Welding Wire Containers and 
Components Thereof and Welding Wire; Notice of Commission Determination 
To Review-In-Part a Final Initial Determination and To Affirm the 
Finding of No Violation of Section 337; Termination of the 
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review a portion of the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on July 29, 2010 finding no violation of section 337 in the 
above-captioned investigation, but to affirm his finding of no 
violation.

FOR FURTHER INFORMATION CONTACT: Jia Chen, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street, SW., 
Washington, DC 20436, telephone (202) 708-4737. 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 September 8, 2009, based on a complaint filed by the Lincoln 
Electric Company of Cleveland, Ohio and Lincoln Global, Inc. of City of 
Industry, California (collectively, ``Lincoln''). 74 FR 46223 (Sept. 8, 
2009). The complaint alleged violations of Section 337 in the 
importation into the United States, the sale for importation, or the 
sale within the United States after importation of certain bulk welding 
wire containers, components thereof, and welding wire by reason of 
infringement of certain claims of United States Patent Nos. 6,260,781; 
6,648,141; 6,708,864 (``the `864 patent''); 6,913,145; 7,309,038; 
7,398,881; and 7,410,111. ld. The amended complaint named the following 
respondents: Atlantic China Welding Consumables, Inc. of Sichuan, China 
(``Atlantic''); The ESAB Group, Inc. of Florence, South Carolina 
(``ESAB''); Hyundai Welding Co., Ltd. of Seoul, Korea (``Hyundai''); 
Kiswel Co., Ltd. of Seoul, Korea (``Kiswel''); and Sidergas SpA of 
Ambrogio (Verona), Italy (``Sidergas''). 74 FR 61706 (Nov. 25, 2009). 
Respondents Hyundai, Kiswel, and Atlantic were subsequently terminated 
from the investigation, leaving ESAB and Sidergas as the only 
respondents remaining. In addition, all but the `864 patent were 
terminated from this investigation.
    On July 29, 2010, the ALJ issued a final ID finding no violation of 
Section 337 by respondents ESAB or Sidergas. The ALJ concluded that 
none of the accused ESAB and Sidergas products infringe asserted claims 
3, 4, 6, 12, or 13 of the `864 patent. The ALJ further concluded that 
claim 3 of the `864 patent is invalid under 35 U.S.C. 102(b) and that 
claims 4, 6, 12, and 13 of the `864 patent are valid and enforceable. 
The ALJ did find that complainant satisfied both the technical and the 
economic prong of the domestic industry requirement with respect to the 
`864 patent. On August 11, 2010, Lincoln filed a petition for review. 
On the same day, respondents ESAB and Sidergas filed a consolidated 
petition for review. The IA did not file a petition for review.
    Having examined the record of this investigation, including the 
ALJ's final ID and the submissions of the parties, the Commission has 
determined to affirm the ALJ's determination that there is no violation 
of Section 337. Specifically, the Commission has determined to affirm 
the ALJ's determination that there is no literal infringement of the 
asserted claims. The Commission has also determined to affirm the ALJ's 
determination that there is no infringement of the asserted claims 
under the doctrine of equivalents based on (1) the ALJ's finding that 
substantial differences exist between the accused products and the 
asserted claims, and (2) the ALJ's application of Johnson & Johnston 
Assoc. Inc. v.  R.E. Services Co., 285 F.3d 1036 (Fed. Cir. 2002) (en 
banc). The Commission has determined to review the following four 
issues and to take no position on them: (1) The claim construction of 
the terms ``substantially lying in a single plane'' recited in 
independent claim 3 and ``substantially in one plane'' recited in 
independent claims 6 and 12; (2) the priority date of the asserted 
claims; (3) invalidity of claim 3 under 35 U.S.C. 102(b); and (4) 
validity of claims 4, 6, 12, and 13 under 35 U.S.C. 102(b). No other 
issues are being reviewed.
    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 sections 210.42-46 and 210.50 of the Commission's Rules of Practice 
and Procedure (19 C.F.R. 210.42-46 and 210.50).

    By order of the Commission.

    Issued: September 24, 2010.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-24566 Filed 9-29-10; 8:45 am]
BILLING CODE 7020-02-P