[Federal Register Volume 79, Number 186 (Thursday, September 25, 2014)]
[Notices]
[Pages 57566-57568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22775]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-887]


Certain Crawler Cranes and Components Thereof; Commission's 
Determination 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 final initial 
determination (``ID'') issued by the presiding

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administrative law judge (``ALJ'') on July 11, 2014, finding a 
violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in 
the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2737. 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: The Commission instituted this investigation 
on July 17, 2013, based on a complaint filed by Manitowoc Cranes, LLC 
(``Manitowoc'') of Manitowoc, Wisconsin. 78 FR 42800-01 (July 17, 
2013). The complaint alleges violations of section 337 of the Tariff 
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), by reason of 
infringement of U.S. Patent Nos. 7,546,928 (``the '928 patent'') and 
7,967,158 (``the '158 patent'') (collectively ``the asserted 
patents''), and that an industry in the United States exists or is in 
the process of being established as required by subsection (a)(2) of 
section 337. The complaint further alleges violations of section 337 by 
reason of trade secret misappropriation, the threat or effect of which 
is to destroy or substantially injure an industry in the United States 
or to prevent the establishment of such an industry under section 
337(a)(1)(A). The Commission's notice of investigation named Sany Heavy 
Industry Co., Ltd. of Changsha, China, and Sany America, Inc. of 
Peachtree City, Georgia (collectively ``Sany'') as respondents. The 
Office of Unfair Import Investigations (``OUII'') was also named as a 
party.
    On July 11, 2014, the ALJ issued his final ID finding a violation 
of section 337 with respect to claims 1, 2, 5, 8, and 23-26 of the '928 
patent and misappropriation of Trade Secret Nos. 1, 6, 14, and 15. The 
ALJ further found no violation of section 337 with respect to claims 6, 
10, and 11 of the '928 patent, claim 1 of the '158 patent, and Trade 
Secret Nos. 3 and 4.
    On July 28, 2014, OUII, Manitowoc, and Sany each filed petitions 
for review. On August 5, 2014, the parties replied to the respective 
petitions for review. The Commission has determined to review the ALJ's 
findings with respect to: (1) Importation of the accused products; (2) 
infringement of the asserted patents; (3) estoppel; (4) the technical 
prong of the domestic industry requirement; and (5) the asserted trade 
secrets.
    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. Please provide any legal support for the proposition that 
``sale for importation'' requires that the article be constructed 
and ready for use. In addressing this question, please discuss 
whether the ``original'' UltraLift package was ever constructed and 
whether the ``original'' UltraLift package was modified to create 
the ``redesigned'' UltraLift package.
    2. Are separate agreements or acts necessary to find that the 
original UltraLift package and redesigned UltraLift package were 
both sold for importation? Please discuss the facts surrounding the 
individual sales for importation of both the original and redesigned 
UltraLift packages, including the parties involved in the sale, when 
the sale occurred, where the sale occurred, and what the parties 
agreed was sold for importation.
    3. Can there be a violation of section 337 when there is a 
``sale for importation,'' with no later act of importation? Can 
there be a ``sale for importation'' of ``articles that infringe'' a 
patent claim, under section 337 (a)(1)(B)(i), without proof of 
direct infringement in the United States? See Certain Electronic 
Devices with Image Processing Systems, Components Thereof, and 
Associated Software, Inv. No. 337-TA-724, Comm'n Op. (Dec. 1, 2011). 
Please address this question in the context of both method and 
apparatus claims.
    4. Are the holdings, for example, in Certain Apparatus for the 
Continuous Production of Copper Rod, Inv. No. 337-TA-89, Comm'n Op. 
(April 1981), Enercon GmBH v. Int'l Trade Comm'n, 151 F. 3d 1376 
(Fed. Cir. 1998), and Lang v. Pacific Marine, 895 F.2d 761 (Fed. 
Cir. 1990), still viable after the Supreme Court's decision in 
Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S.Ct. 2111 
(2014), particularly with respect to direct infringement as a 
necessary predicate for indirect infringement?
    5. Discuss whether the accused SCC8500 crane with the original 
UltraLift package directly infringes asserted apparatus claims 23-26 
of the '928 patent, including whether crane operation is required 
for a finding of infringement. Please address each limitation of the 
asserted apparatus claims.
    6. What evidence in the record, if any, shows that the accused 
SCC8500 crane was used to perform each step of the asserted method 
claims? In what country, if any, was each step of the asserted 
method claims performed?
    7. What evidence in the record, if any, supports finding that 
there are no non-infringing uses of the accused products, for 
asserted claims 6, 10, and 11 of the '928 patent and claim 1 of the 
'158 patent, when the accused products are operated?
    8. Did Sany waive its argument that Trade Secret Nos. 1 and 6 
are not protectable as trade secrets based on email CX-0116C?
    9. Under what circumstances does a third party have a duty to 
refrain from disclosing a trade secret? What are the consequences of 
a trade secret being disseminated by a third party? How extensive 
must the disclosure of a trade secret by a 3rd party be in order to 
prevent or destroy trade secret protection? Please discuss the facts 
of this investigation and the relevant case law in answering these 
questions.
    10. Are any of the asserted trade secrets disclosed in U.S. 
Patent Application No. 2011/0031202 (``the '202 patent 
application'') published in February of 2011? If so, is Manitowoc 
precluded from obtaining relief on the trade secrets disclosed in 
the '202 patent application?
    11. Please discuss the relevant case law that identifies how 
much specificity is required to define the ``metes and bounds'' of 
an asserted trade secret, focusing in particular on asserted Trade 
Secret No. 3. Is Manitowoc required to prove trade secret protection 
for every possible combination of elements of asserted Trade Secret 
No. 3?
    12. Discuss whether asserted Trade Secret No. 4 can be found to 
be independently protectable as a trade secret if Trade Secret No. 3 
does not qualify for trade secret protection.
    13. Discuss whether Sany misappropriated Trade Secret No. 3 and 
Trade Secret No. 4.
    14. Discuss whether Sany can be held liable for misappropriation 
of the asserted trade secrets where Mr. Lanning, or other former 
Manitowoc employees, disclosed Manitowoc confidential information to 
Sany within the scope of their employment. Please address these 
issues within the context of the theories of respondeat superior and 
agency law.
    15. Did Sany improperly acquire the asserted trade secrets from 
former Manitowoc employees?
    16. What evidence is there that Sany ``used'' the elements of 
Trade Secret No. 15 to assist or accelerate Sany's research and 
development?
    17. Please discuss with respect to each trade secret allegation 
the appropriate length of the remedy the Commission may impose if 
the Commission finds a violation of section 337 for misappropriation 
of the asserted trade secrets.

    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

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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. When 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 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 Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 
(December 1994) (Commission Opinion).
    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 issues identified in this notice. 
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 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 date that the '928 and 
'158 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, 
October 1, 2014. Reply submissions must be filed no later than the 
close of business on Wednesday, October 8, 2014. No further submissions 
on these issues will be permitted unless otherwise ordered by the 
Commission. The page limit for the parties' initial submissions on the 
questions posed by the Commission is 125 pages. The parties reply 
submissions, if any, are limited to 75 pages.
    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-887'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/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: September 19, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-22775 Filed 9-24-14; 8:45 am]
BILLING CODE 7020-02-P