[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Notices]
[Page 13661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5841]



[[Page 13661]]

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 INTERNATIONAL TRADE COMMISSION

 [Investigation No. 337-TA-587]


 In the Matter of Certain Connecting Devices (``Quick Clamps'') 
for Use With Modular Compressed Air Conditioning Units, Including 
Filters, Regulators, and Lubricators (``FRL's'') That Are Part of 
Larger Pneumatic Systems and the FRL Units They Connect; Notice of 
Commission Decision To Reverse an Initial Determination on Remando the 
Administrative Law Judge; Termination of the Investigation With a 
Determination of no Violation of Section 337 Because the Asserted 
Claims of the Asserted Patent Are Invalid for Obviousness

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 reverse the initial determination on 
remand (``RID'') of the presiding administrative law judge (``ALJ'') 
and has terminated the investigation with a finding of no violation of 
section 337 of the Tariff Act of 1930 because the asserted claims of 
U.S. Patent No. 5,372,392 (``the `392 patent'') are invalid for 
obviousness.

FOR FURTHER INFORMATION CONTACT: Mark B. Rees, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street, SW., 
Washington, DC 20436, telephone (202) 205-3116. 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 November 13, 2006, based on a complaint filed by Norgren, Inc. 
(``Norgren'') of Littleton, Colorado. 71 FR 66193 (Nov. 13, 2006). An 
amended complaint was filed on October 25, 2006. A supplement to the 
complaint was filed on November 1, 2006. The amended 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, or 
the sale within the United States after importation of certain devices 
for modular compressed air conditioning units and the FRL units they 
connect by reason of infringement of certain claims of the `392 patent. 
The amended complaint also alleged that a domestic industry exists with 
regard to the `392 patent under subsection (a)(2) of section 337. The 
amended complaint named SMC Corp. of Japan; SMC Corporation of America 
of Indianapolis, Indiana (collectively, ``SMC''); AIRTAC of China; and 
MFD Pneumatics (``MFD'') of Chicago, Illinois as the respondents and 
requested a limited exclusion order and a cease and desist order. On 
July 13, 2007, the Commission determined not to review an ID 
terminating the investigation with respect to MFD and AIRTAC on the 
basis of a consent order stipulation and consent order.
    On February 13, 2008, the ALJ issued his final ID finding no 
violation of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337). 
Specifically, the ALJ found that there had been an importation of SMC's 
accused products and that none of the accused products infringe the 
asserted claims of the `392 patent. He also found that the asserted 
claims are not invalid due to obviousness. He further found that 
Norgren satisfies the domestic industry requirement with respect to the 
`392 patent. On February 25, 2008, the ALJ issued a recommended 
determination on remedy and bonding in the event the Commission 
reversed his finding of no violation of section 337.
    On April 18, 2008, the Commission determined not to review the ID 
and terminated the investigation based on the finding of no violation 
of section 337. 73 FR 21157 (Apr. 18, 2008). Norgren appealed to the 
U.S. Court of Appeals for the Federal Circuit (``the Court'').
    On May 26, 2009, in an unpublished, non-precedential decision, the 
Court reversed in part the Commission's claim construction, reversed 
the Commission's determination of noninfringement based upon the new 
claim construction, and vacated the Commission's determination of 
nonobviousness. Norgren Inc. v. Int'l Trade Comm'n, No. 2008-1415 (Fed. 
Cir. May 26, 2009), 2009 U.S. App. LEXIS 10984. The Court remanded the 
investigation with instructions for the Commission to evaluate 
obviousness in the first instance based upon the Court's construction 
of the claim term ``generally rectangular ported flange.''
    Following receipt of the Court's September 9, 2009, mandate, the 
Commission ordered the investigation remanded to the Chief ALJ for 
designation of a presiding ALJ to conduct proceedings in accordance 
with the Court's judgment. The Chief Judge reassigned the investigation 
to the ALJ who presided over the original investigation. The ALJ held 
an evidentiary hearing on April 21, 2010, at which all parties were 
represented. The parties also fully briefed the merits.
    On August 5, 2010, the ALJ issued the RID in which he determined 
that the asserted claims are not invalid as obvious. SMC and the 
Commission investigative attorney (``IA'') petitioned for review of the 
ID. Norgren filed a response in opposition to the petitions. On October 
7, 2010, the Commission determined to review the RID on the issue of 
obviousness. The Commission also requested further briefing. 75 FR 
63198 (Oct. 14, 2010). The parties have responded to the notice of 
review, fully briefing obviousness as well as the issues of remedy, the 
public interest, and bonding.
    Upon its review of the issue of obviousness, and based upon the 
administrative record in this investigation, including the RID, 
original ID, exhibits, transcripts, and party arguments, the Commission 
has determined to reverse the ALJ's finding that the asserted claims of 
the `392 patent are nonobvious, find no violation of section 337 
because the claims are invalid as obvious, and terminate the 
investigation with a finding of no violation.
    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 210.45(c) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.45(c)).

    By order of the Commission.

     Issued: March 8, 2011.
James R. Holbein,
Acting Secretary to the Commission.
[FR Doc. 2011-5841 Filed 3-11-11; 8:45 am]
BILLING CODE 7020-02-P