[Federal Register Volume 82, Number 233 (Wednesday, December 6, 2017)]
[Notices]
[Pages 57611-57613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26238]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1003]


Certain Composite Aerogel Insulation Materials and Methods for 
Manufacturing the Same; 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 
(``ID'') issued on September 29, 2017, finding a violation of section 
337 of the Tariff Act of 1930, as amended, in the above-captioned 
investigation.

FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2392. 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 https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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 8, 2016, based on a complaint filed by Aspen Aerogels, Inc. of 
Northborough, Massachusetts (``Aspen''). 81 FR 36955-956 (Jun. 8, 
2016). The complaint alleges violations

[[Page 57612]]

of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, 
in the importation into the United States, the sale for importation, 
and the sale within the United States after importation of certain 
composite aerogel insulation materials and methods for manufacturing 
the same by reason of infringement of certain claims of U.S. Patent No. 
7,399,439 (``the '439 patent''); U.S. Patent No. 9,181,486 (``the '486 
patent''); U.S. Patent No. 7,078,359 (``the '359 patent''); U.S. Patent 
No. 6,989,123 (``the '123 patent''); and U.S. Patent No. 7,780,890 
(``the '890 patent''). The complaint further alleges that an industry 
in the United States exists as required by 19 U.S.C. 1337(a)(2). The 
notice of investigation named Nano Tech Co., Ltd. of Zhejiang, China 
(``Nano''), and Guangdong Alison Hi-Tech Co., Ltd. of Guangzhou, China 
(``Alison''), as respondents. The Office of Unfair Import 
Investigations (``OUII'') is also a party in this investigation.
    All asserted claims of the '439 patent and the '486 patent and 
certain asserted claims of the '359 have been terminated from the 
investigation. See Comm'n Notice (Nov. 2, 2016); Comm'n Notice (Feb. 9, 
2017). Only claims 15-17, and 19 of the '123 patent; claims 1, 5, 7, 9, 
12, 15, and 16 of the '359 patent; and claims 11-13, 15, 17-19, and 21 
of the '890 patent (``the Asserted Claims'') remain in the 
investigation.
    On November 15, 2016, the ALJ issued Order No. 19, granting Aspen's 
motion for summary determination that the economic prong of the 
domestic industry requirement has been satisfied under section 
337(a)(3)(A) and (B). The Commission determined to review in part Order 
No. 19. See Comm'n Notice (Dec. 7, 2016). On review, the Commission 
affirmed with modification the summary determination that Aspen 
satisfies the economic prong of the domestic industry requirement. See 
id. at 1-2.
    On September 29, 2017, the ALJ issued the final ID in this 
investigation, finding a violation of section 337 by Respondents Alison 
and Nano in connection with claims 1, 5, 7, and 9 of the '359 patent; 
claims 15-17, and 19 of the '123 patent; and claims 11-13, 15, 17-19, 
and 21 of the '890 patent. The ID also finds a violation of section 337 
by Respondent Nano in connection with claims 12, 15, and 16 of the '359 
patent. In addition, the ID finds that Aspen has shown that its 
domestic industry products satisfy the technical prong of the domestic 
industry requirement for the Asserted Patents. The ID further finds 
that Respondents have not shown that the Asserted Claims are invalid.
    The ID also contains the ALJ's recommended determination on remedy 
and bonding. The ALJ recommended that the appropriate remedy is a 
limited exclusion order with a certification provision prohibiting the 
entry of certain composite aerogel insulation materials manufactured 
abroad by or on behalf of Respondents Alison and Nano that infringe 
certain claims of the '359 patent, and/or that are manufactured using 
certain claimed methods of the '123 patent and the '890 patent.
    On October 16, 2017, Respondents and OUII each filed a timely 
petition for review of the final ID. Respondents and OUII challenge 
certain of the ID's findings with respect to the validity of the 
Asserted Claims and the ID's findings with respect to claim 5 of the 
'359 patent. Respondent Alison separately challenges the ID's finding 
of infringement with respect to claim 9 of the '359 patent. That same 
day, Aspen filed a contingent petition for review of the final ID, 
challenging the ALJ's construction of two claim limitations in the '359 
patent. On October 24, 2017, the parties filed timely responses to the 
petitions for review. On October 31, 2017, the parties filed their 
public interest comments pursuant to Commission Rule 210.50(a)(4).
    Having examined the record of this investigation, including the ID, 
the petitions for review, and the responses thereto, the Commission has 
determined to review the ID in part. Specifically, with respect to the 
'359 patent, the Commission has determined to review the ALJ's 
construction of the ``lofty fibrous batting'' limitation in claim 1 of 
the '359 patent. The Commission's review of the ``lofty fibrous 
batting'' limitation does not include the ID's finding that Respondents 
have not proven that the term is invalid for indefiniteness. The 
Commission has also determined to review the ALJ's constructions of the 
additional limitations in claims 5 and 9, and the ``total surface area 
of that cross section'' limitation of claim 12 of the '359 patent, and 
the ID's associated findings on infringement and the technical prong of 
the domestic industry requirement with respect to those claims and 
claims 15 and 16 of the '359 patent. In addition, the Commission has 
determined to review the ID's findings that the asserted claims of the 
'359 patent are not invalid in view of Ramamurthi by itself or in 
combination with other prior art. With respect to the '123 and the '890 
patents, the Commission has determined to review the ID's finding that 
claim 15 of the '123 patent and claims 11-13, 15, 17, and 21-23 of the 
'890 patent are not obvious in view of Ramamurthi and either Uchida or 
Yada. The Commission has determined not to review the remaining issues 
decided in the 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. Please address the proper scope of claim 9 of the '359 patent 
and, in particular, the ``about 1 to 20%'' limitation. Your response 
should be limited to the evidence in the record, including a discussion 
of relevant statements, if any, made in the prosecution history.
    2. With reference to question one, please address whether 
Respondent Alison's accused products infringe claim 9 of the '359 
patent under the proper construction of the ``about 1 to 20%'' 
limitation.
    3. With reference to question one, please discuss whether 
Ramamurthi anticipates the limitation ``the dopant is present in an 
amount of about 1 to 20% by weight of the total weight of the 
composite'' in claim 9 of the '359 patent.
    4. Please address whether the Commission should adopt Dr. Gnade's 
interpretation or Dr. Leventis' interpretation of the ``total surface 
area of that cross section'' limitation in claim 12 of the '359 patent. 
Your response should be limited to the evidence in the record, 
including a discussion of relevant statements, if any, made in the 
prosecution history.
    5. With reference to question four, please address whether 
Respondents' accused products and Aspen's domestic industry products 
meet the limitation ``where the batting is sufficiently lofty that the 
cross-sectional area of the fibers of the batting visible in the cross-
section of the composite is less than 10% of the total surface area of 
that cross section'' under both Dr. Gnade's interpretation and Dr. 
Leventis' interpretation of the scope of claim 12 of the '359 patent.
    6. With reference to question four, please discuss whether 
Ramamurthi anticipates the limitation ``the cross-sectional area of the 
fibers of the batting visible in the cross-section of the composite is 
less than 10% of the total surface area of that cross section'' in 
claim 12 of the '359 patent.
    7. Please address Aspen's contention in its combined response (at 
82-84) that Respondents' petitions for review presents new arguments 
and new evidence concerning Uchida and Yada that they failed to raise 
in their post-hearing briefs.

[[Page 57613]]

    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 issue an order that could result in the exclusion of the 
subject articles from entry into the United States. 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 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 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 issues 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. Complainant and the Office of Unfair Import 
Investigations are also requested to submit proposed remedial orders 
for the Commission's consideration. Complainant is further requested to 
state the dates that the patents expire, the HTSUS numbers under which 
the accused products are imported, and any known importers of the 
accused products. The written submissions and proposed remedial orders 
must be filed no later than close of business on December 15, 2017. 
Initial submissions are limited to 40 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 
December 22, 2017. Reply submissions are limited to 20 pages, not 
including any attachments or exhibits related to discussion of remedy, 
the public interest, and bonding. 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-1003'') in a prominent place on 
the cover page and/or the first page. See Handbook on Filing 
Procedures, (https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.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. All 
information, including confidential business information and documents 
for which confidential treatment is properly sought, submitted to the 
Commission for purposes of this Investigation may be disclosed to and 
used: (i) By the Commission, its employees and Offices, and contract 
personnel (a) for developing or maintaining the records of this or a 
related proceeding, or (b) in internal investigations, audits, reviews, 
and evaluations relating to the programs, personnel, and operations of 
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. 
government employees and contract personnel,\1\ solely for 
cybersecurity purposes. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary and on 
EDIS.
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    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
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    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: November 30, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-26238 Filed 12-5-17; 8:45 am]
 BILLING CODE 7020-02-P