[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Notices]
[Pages 41303-41305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16526]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-881]


Certain Windshield Wiper Devices and Components Thereof; Notice 
of Commission Decision To Review in Part a Final Initial Determination 
Finding a Violation of Section 337; Request for Written Submissions

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 part the presiding 
administrative law judge's (``ALJ'') final initial determination 
(``final ID'') issued on May 8, 2014, finding a violation of section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. Sec.  1337 
(``section 337'') in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2301. 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 June 11, 2013, based on a complaint filed by complainants Federal-
Mogul Corporation of Southfield, Michigan and Federal-Mogul S.A. of 
Aubange, Belgium (collectively ``Federal-Mogul''). 78 FR 35050-51 (June 
11, 2013). The complaint alleges violations of section 337 in the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain windshield 
wiper devices and components thereof by reason of infringement of 
claims 1-14 of U.S. Patent No. 8,347,449 (``the '449 patent''). The 
complaint further alleges the existence of a domestic industry. The 
Commission's Notice of Investigation named as respondents Trico 
Corporation of Rochester Hills, Michigan (``Trico Corp.''); Trico 
Products of Brownsville, Texas (``Trico Products''); and Trico 
Components, SA de CV of Matamoros, Mexico (collectively ``Trico''). 78 
FR at 35050. The Office of Unfair Import Investigations was also named 
as a party. Id. The Notice of Investigation was later amended to 
correct the names of Trico Corp. and Trico Products to Trico Products 
Corporation of New York. 79 FR 9922-923 (Feb. 21, 2014); see Order No. 
27 (Jan. 22, 2014).
    On May 8, 2014, the ALJ issued his final ID, finding a violation of 
section 337. In particular, the final ID finds that Trico's accused 
products infringe claims 1 and 5 of the '449 patent, but that Trico's 
accused products do not infringe claims 2-4 and 6-14. The ALJ also 
found that the asserted claims of the '449 patent are not invalid for 
obviousness under 35 U.S.C. 103 or for lack of written description 
under 35 U.S.C. 112. The ALJ further found that Federal-Mogul has 
satisfied the domestic industry requirement.
    The final ID also includes the ALJ's recommended determination 
(``RD'') on remedy and bonding. The ALJ recommended in his RD that the 
appropriate remedy is a limited exclusion order barring entry of 
Trico's infringing windshield wiper devices and components thereof. The 
ALJ did not recommend issuance of a cease and desist order against any 
respondent. The ALJ recommended the imposition of a bond of $0.75 per 
imported unit during the period of Presidential review.
    On May 21, 2014, Trico filed a petition for review concerning, 
inter alia, the final ID's finding of violation with respect to claims 
1 and 5 of the '449 patent. In particular, Trico requested review of 
the final ID's construction of the claim limitation ``detachable,'' the 
final ID's finding that claims 1 and 5 are infringed, and the final 
ID's finding that the asserted claims of the '449 patent are not 
invalid for obviousness. Also on May 21, 2014, Federal-Mogul and the 
Commission investigative attorney (``IA'') each filed a petition for 
review of certain aspects of the final ID concerning the ALJ's finding 
of no violation with respect to claims 2-4 and 6-14 of the '449 patent. 
In particular, Federal-Mogul and the IA requested that the Commission 
review the final ID's construction of the claim limitation ``clamping'' 
and the final ID's finding of non-infringement with respect to claims 
2-4 and 6-14 of the '449 patent.
    On May 29, 2014, Federal-Mogul filed a response to Trico's petition 
for review. Also on May 29, 2014, Trico filed a combined response to 
Federal-Mogul's and the IA's petitions for review. Further on May 29, 
2014, the IA filed a joint response to the private parties' petitions.
    None of the parties filed a post-RD statement on the public 
interest pursuant to Commission Rule 210.50(a)(4). Furthermore, no 
responses were filed by the public in response to the post-RD 
Commission Notice issued on May 9, 2014. See Notice of Request for 
Statements on the Public Interest, 79 FR 27934-35 (May 9, 2014).
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the final ID in part.
    Specifically, the Commission has determined to review the ALJ's 
omission of the caveat ``without

[[Page 41304]]

damage'' in the construction of the limitations ``detachable 
therefrom,'' ``detachably engage,'' ``detachably connected,'' and 
``releasably secure'' recited in claims 1, 2, 8, and 12 of the '449 
patent. The Commission has also determined to review the final ID's 
construction of the ``clamping'' limitation recited in claims 2, 3, 6, 
7, and 12 of the '449 patent.
    With respect to infringement, the Commission has determined to 
review the final ID's finding that the accused OE blade products 
satisfy the ``detachable'' limitation of claims 1 and 5 of the '449 
patent. The Commission has also determined to review the final ID's 
finding of no infringement with respect to claims 2-4 and 6-7 of the 
'449 patent. The Commission has further determined to review the final 
ID's finding of no infringement with respect to claims 8-14 of the '449 
patent.
    The Commission has also determined to review the final ID's finding 
that the asserted domestic industry products satisfy the technical 
prong of the domestic industry requirement with respect to claim 1 of 
the '449 patent. The Commission has further determined to review the 
final ID's finding that Trico failed to show by clear and convincing 
evidence that the asserted claims of the '449 patent are obvious in 
view of U.S. Patent No. 5,713,099 in combination with U.S. Patent No. 
6,799,348.
    The Commission has determined not to review the remaining issues 
decided in the final ID.
    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 questions:
    1. Address whether the claim limitations ``clamping features,'' 
``clamping members,'' and ``clamping edge portions'' recited in the 
asserted claims of the '449 patent should be construed independently of 
the generic term ``clamping'' and, if so, how should the Commission 
construe those claim limitations in light of the intrinsic evidence.
    2. Address whether the accused wiper blade products satisfy the 
``clamping features'' limitation recited in claim 2 and the ``clamping 
members'' limitation recited in claims 3, 6, and 7 of the '449 patent 
under the proper construction of those limitations. Please specifically 
discuss this issue in relation to your position concerning whether 
claim limitations ``clamping features'' and ``clamping members'' should 
be construed independently of the generic term ``clamping.''
    3. Address whether the accused wiper blade products infringe claims 
8-14 of the '449 patent in light of the fact that the Commission has 
determined to review the construction of the claim limitations 
``detachably connected'' (relevant to claims 8-11), ``releasably 
secure'' (relevant to claims 12-14), and ``clamping edge portions'' 
(relevant to claims 12-14). Regarding the latter claim limitation, 
please specifically discuss this issue in relation to your position 
concerning whether the claim limitation ``clamping edge portions'' 
should be construed independently of the generic term ``clamping.''
    The parties have been invited to brief only these discrete issues, 
as enumerated above, with reference to the applicable law and 
evidentiary record. The parties are not to brief other issues on 
review, which are adequately presented in the parties' existing 
filings.
    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 Fed. Reg. 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, including 
the Office of Unfair Import Investigations, are requested to file 
written submissions on the issues identified in this notice. Parties to 
the investigation, including the Office of Unfair Import 
Investigations, 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. Complainant is also requested to submit proposed remedial 
orders for the Commission's consideration. Complainant is 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 July 22, 2014. Initial submissions are limited to 
70 pages, not including any attachments or exhibits related to 
discussion of the public interest. Reply submissions must be filed no 
later than the close of business on July 30, 2014. Reply submissions 
are limited to 25 pages, not including any attachments or exhibits 
related to discussion of the public interest. No further submissions on 
these issues will be permitted unless otherwise ordered by the 
Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines stated above and submit 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to section 210.4(f) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-881'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/

[[Page 41305]]

secretary/fed--reg--notices/rules/handbook--on--electronic--
filing.pdf). Persons with questions regarding filing should contact the 
Secretary (202-205-2000).
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment. All such requests 
should be directed to the Secretary to 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 properly sought will be treated accordingly. A 
redacted non-confidential version of the document must also be filed 
simultaneously with the any confidential filing. All non-confidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
    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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.

    Issued: July 9, 2014.
Jennifer D. Rohrbach,
Supervisory Attorney.
[FR Doc. 2014-16526 Filed 7-14-14; 8:45 am]
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