[Federal Register Volume 86, Number 96 (Thursday, May 20, 2021)]
[Notices]
[Page 27478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10585]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1088 (Rescission)]
Certain Road Construction Machines and Components Thereof;
Commission Decision To Institute a Rescission Proceeding; Permanent
Rescission of a Limited Exclusion Order and Cease and Desist Order;
Termination of the Rescission Proceeding
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 institute a proceeding to determine
whether to permanently rescind the Commission's limited exclusion order
(``LEO'') and cease and desist order (``CDO'') issued in the above-
captioned investigation. The LEO and the CDO are permanently rescinded.
The rescission proceeding is terminated.
FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-4716. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. 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 November 29, 2017, based on a complaint, as supplemented, filed by
Caterpillar Inc. of Peoria, Illinois and Caterpillar Paving Products,
Inc. of Minneapolis, Minnesota (collectively, ``Caterpillar''). See 82
FR 56625-26 (Nov. 29, 2017). The complaint, as supplemented, alleges
violations of section 337 of the Tariff Act of 1930, as amended (19
U.S.C. 1337) (``section 337''), based upon the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain road construction machines and
components thereof by reason of infringement of certain claims of U.S.
Patent Nos. 7,140,693 (``the '693 patent''); 9,045,871; and 7,641,419.
See id. The notice of investigation identifies the following
respondents: Wirtgen GmbH of Windhagen, Germany; Joseph V[ouml]gele AG
of Ludwigshafen, Germany; Wirtgen Group Holding GmbH of Windhagen,
Germany; and Wirtgen America, Inc. of Antioch, Tennessee (``Wirtgen
America'') (collectively, ``Wirtgen''). See id. The Office of Unfair
Import Investigations is not a party to this investigation. See id.
On June 27, 2019, the Commission found a violation of section 337
based on the infringement of claim 19 of the '693 patent and issued an
LEO against the infringing articles and a CDO against Wirtgen America
(collectively, ``the remedial orders''). See 84 FR 31910-11 (July 3,
2019).
On January 16, 2020, the Commission instituted a modification
proceeding to determine whether Wirtgen's redesigned series 1810
machines infringe claim 19 of the '693 patent. On August 31, 2020, the
Commission determined that Wirtgen's redesigned machines do not
infringe and issued modified remedial orders exempting the redesigned
machines from the scope of the orders. See 85 FR 55320-21 (Sept. 4,
2020).
On April 29, 2021, Caterpillar and Wirtgen filed a joint petition
to rescind the remedial orders. Commission Rule 210.76(a)(1), 19 CFR
210.76(a)(1), permits rescission of Commission remedial orders on the
basis of ``changed conditions of fact or law.'' The petition asserts
that such changed conditions exist here. In particular, the parties
explain that the Patent Trial and Appeal Board (``PTAB'') of the U.S.
Patent and Trademark Office found claim 19 of the '693 patent to be
unpatentable in a Final Written Decision, that Caterpillar took an
appeal from the PTAB to the U.S. Court of Appeals for the Federal
Circuit, that Caterpillar moved the Federal Circuit to dismiss its
appeal, and that the Federal Circuit granted that motion. Pet. at 1-2.
In view of the Federal Circuit's dismissal of Caterpillar's appeal
from the PTAB's Final Written Decision, the fact that the patent claim
upon which the remedial orders are based is unpatentable, and the fact
that Caterpillar and Wirtgen both agree that rescission is appropriate
now, the Commission has determined to institute a rescission proceeding
and to grant the joint petition for rescission. The Commission
permanently rescinds the LEO and the CDO. The rescission proceeding is
hereby terminated.
The Commission's vote for this determination took place on May 14,
2021.
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: May 14, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-10585 Filed 5-19-21; 8:45 am]
BILLING CODE 7020-02-P