[Federal Register Volume 86, Number 220 (Thursday, November 18, 2021)]
[Notices]
[Pages 64525-64527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25134]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1218]


Certain Variable Speed Wind Turbine Generators and Components 
Thereof; Commission Determination To Review in Part a Final Initial 
Determination Finding a Violation of Section 337 as to One Patent and 
No Violation as to Another Patent; Schedule for Filing Written 
Submissions on Remedy, the Public Interest, and Bonding

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 a final initial 
determination (``Final ID'') issued by the presiding administrative law 
judge (``ALJ'') finding a violation of section 337 of the Tariff Act of 
1930. The Commission requests briefing from the parties, interested 
government agencies, and interested persons on the issues of remedy, 
the public interest, and bonding based on the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at http://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 (http://www.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: On September 8, 2020, the Commission 
instituted this investigation based on a complaint filed on behalf of 
General Electric Company of Boston, Massachusetts (``GE''). 85 FR 
55492-93 (Sept. 8, 2020). The complaint alleged violations of section 
337 of the Tariff Act of 1930, as supplemented and amended, 19 U.S.C. 
1337, based upon the importation into the United States, the sale for 
importation, and the sale within the United States after importation of 
certain variable speed wind turbine generators and components thereof 
by reason of infringement of one or more of claims 1, 3, 6, 7, 12, 15-
16, 21-24, 29, 30, and 33-38 of U.S. Patent No. 6,921,985 (``the '985 
patent'') and claims 1 and 2 of the U.S. Patent No. 7,629,705 (``the 
'705 patent''). Id. at 55493; Order No. 10 (Dec. 2, 2020), unreviewed 
by Comm'n Notice (Dec. 22, 2020). Id. The Commission's notice of 
investigation named as respondents Siemens Gamesa Renewable Energy Inc. 
of Orlando, Florida; Siemens Gamesa Renewable Energy A/S of Brande, 
Denmark; and Gamesa Electric, S.A.U. of Zamudio, Spain (collectively, 
``SGRE''). Id. at 26493; 85 FR 55493. The Office of Unfair Import 
Investigations is not a party to the investigation. Id.
    The Commission subsequently terminated the investigation with 
respect to claims 3, 7, 15, 16, 21-24, 36, and 38 of the '985 patent 
and claim 2 of the '705 patent based on GE's partial withdrawal of the 
complaint. Order No. 20 (Mar. 30, 2021), unreviewed by Comm'n Notice 
(Apr. 15, 2021) (terminating the investigation with

[[Page 64526]]

respect to claims 3, 7, 36, and 38 of the '985 patent and claim 2 of 
the '705 patent); Order No. 24 (Apr. 26, 2021), unreviewed by Comm'n 
Notice (May 17, 2021) (terminating the investigation with respect to 
claims 15, 16, and 21-24 of the '985 patent). Accordingly, at the time 
of the Final ID, the remaining asserted claims were claims 1, 6, 12, 
29, 30, 33-35, and 37 of the '985 patent and claim 1 of the '705 
patent.
    The Commission also issued a summary determination that GE 
satisfied the economic prong of the domestic industry requirement with 
respect to both asserted patents. Order No. 23 (Apr. 26, 2021), 
unreviewed by Comm'n Notice (May 26, 2021).
    On September 10, 2021, the ALJ issued the Final ID finding a 
violation of section 337 with respect to claims 1, 6, 12, 29, 30, 33-
35, and 37 of the '985 patent and finding no violation with respect to 
claim 1 of the '705 patent. Final ID at 147. The Final ID found that GE 
showed that SGRE induced infringement of claims 1, 6, 12, 29, 30, 33-
35, and 37 of the '985 patent and claim 1 of the '705 patent, and that 
GE showed that it satisfied the technical prong of the domestic 
industry requirement with respect to both patents. The Final ID also 
found that SGRE showed that claim 1 of the '705 patent is directed to 
ineligible subject matter but failed to show that any asserted claim of 
the '985 patent is invalid or ineligible.
    On September 22, 2021, GE filed a petition for review of several 
issues, including the Final ID's finding that claim 1 of the '705 
patent is directed to ineligible subject matter and is not infringed by 
SGRE's full-converter turbines, as well as the Final ID's finding that 
GE failed to demonstrate contributory infringement. On September 24, 
2021, SGRE filed a petition for review of several issues, including the 
Final ID's findings that SGRE's products satisfied several limitations 
of claims 1, 6, and 12 of the '985 patent, its findings that all of 
SGRE's accused products satisfied claims 29, 30, 33-35, and 37 of the 
'985 patent, its reliance on licensed activity, and its refusal to 
adjudicate infringement by products named in the complaint but for 
which no infringement evidence was presented. SGRE also contingently 
petitioned for review of the Final ID's finding that SGRE's products 
practice a limitation of claim 1 of the '705 patent and that claim 1 is 
not invalid as anticipated. SGRE did not petition for review any issue 
regarding the Final ID's finding that SGRE violated section 337 via its 
full-converter turbines with earlier software with respect to claims 
29, 30, 33-35, and 37 of the '985 patent. GE and SGRE opposed each 
other's petitions on September 30, 2021, and October 4, 2021, 
respectively.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petition 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 following issues: (1) The 
Final ID's finding that the accused products satisfy the limitation ``a 
second mode of operation comprising the low voltage event'' of claims 
1, 6, and 12 of the '985 patent; (2) the Final ID's finding that the 
accused turbines having a doubly-fed induction generator (``DFIG'') 
satisfy the limitation ``turbine controller causes the blade pitch 
control system to vary the pitch of the one or more blades'' of claims 
1, 6, and 12 of the '985 patent; (3) the Final ID's finding that 
certain full-converter turbines with later software and DFIG Products 
infringe claims 29, 30, 33-35, and 37 of the '985 patent; and (4) the 
Final ID's finding that the accused products satisfy the limitation 
``during the entire duration of and subsequent to a zero voltage fault 
that lasts for an undetermined period of time'' of claim 1 of the '705 
patent. The Commission declines to review the remainder of the ID, 
including the Final ID's finding that SGRE violated section 337 via its 
full-converter turbines with earlier software with respect to claims 
29, 30, 33-35, and 37 of the '985 patent, its findings that GE 
satisfied the technical prong of the domestic industry requirement with 
respect to both asserted patents, and its finding that claim 1 of the 
'705 patent is directed to ineligible matter under 35 U.S.C. 101. The 
Commission has determined to take no position on whether GE showed that 
the accused products satisfy the limitation ``during the entire 
duration of and subsequent to a zero voltage fault that lasts for an 
undetermined period of time,'' and therefore affirms the Final ID's 
finding of no violation as to claim 1 of the '705 patent based on 35 
U.S.C. 101.
    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 a cease and desist order that could result in the respondent 
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 Certain Devices for Connecting Computers via Telephone Lines, Inv. 
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December 
1994).
    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 a cease and desist 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.
    The Commission requests full briefing on remedy and the public 
interest, including in particular briefing on the following remedy and 
public interest issues:

    1. If the Commission were to issue a remedy only with respect to 
articles that infringe claims 29, 30, 33-35, and 37 of the '985 
patent, please provide the identity and volume of the products that 
would be impacted. Please address the extent to which the software 
version and licensed activity affect which products are covered by 
the remedy. Please discuss whether and to what extent remedial 
order(s) directed to the affected products you have identified in 
response to this question would affect each of the four public 
interest considerations. Please also address whether and to what 
extent SGRE's requested remedy exemptions would be necessary or 
appropriate in order to mitigate the identified adverse impacts on 
each public interest consideration.
    2. Please explain the feasibility, including in terms of costs 
and time commitments or delays, of developing alternative contracts 
for the supply of wind turbine generators in the United States if 
SGRE is unable to fulfill its existing contract volumes due to 
remedial orders issued in this investigation.
    3. Please describe whether and to what extent it is possible to 
switch providers for components and service. Please elaborate on the 
extent to which non-accused or non-infringing components can be used 
to build or service existing SGRE wind towers.
    4. Please describe what, if any, additional costs a wind turbine 
operator would incur if the proposed remedy requires switching 
providers for wind turbine components and

[[Page 64527]]

service. Please address the extent to which wind turbine operators 
have already paid for components potentially covered by a remedy, 
and related service, through warranty and other contractual 
provisions. Please also address whether switching providers would 
cause delays or compatibility issues. Please explain how such 
additional costs, if any, would affect one or more of the four 
public interest considerations.
    5. Please explain what products, if any, are still subject to 
the license agreement between the parties or whether SGRE otherwise 
retains the right under patent exhaustion principles to import 
components for the purpose of repairing products sold under the 
license. Please explain how the Commission or Customs and Border 
Protection could ascertain whether imported products are covered by 
the license or are otherwise authorized.
    6. Please address whether SGRE's proven domestic inventories of 
products and components that are accused of infringing (a) claims 1, 
6, and 12 of the '985 patent and (b) claims 29, 30, 33-35, and 37 of 
the '985 patent are commercially significant within an appropriate 
context and whether SGRE has other significant business operations 
in the United States. Please address the various product categories 
separately: Full-converter turbines using the earlier software, 
full-converter turbines using the later software, and DFIG turbines.

    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve, 
disapprove, or take no position on 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 Commission requests that the parties to 
the investigation file written submissions on the remedy and public 
interest issues identified in this notice. The Commission encourages 
parties to the investigation, interested government agencies, and any 
other interested parties 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, 
which issued on September 10, 2021. The Commission further requests 
that GE submit proposed remedial orders, state the date when the '985 
patent expires, provide the HTSUS subheadings under which the subject 
articles are imported, and supply a list of known importers of the 
subject article. The written submissions, exclusive of any exhibits, 
must not exceed 40 pages, and must be filed no later than close of 
business on December 7, 2021. Reply submissions must not exceed 20 
pages, and must be filed no later than the close of business on 
December 14, 2021. 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. The 
Commission's paper filing requirements in 19 CFR 210.4(f) are currently 
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1218) in a prominent place on the 
cover page and/or the first page. (See Handbook for Electronic Filing 
Procedures, https://www.usitc.gov/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 by marking each document 
with a header indicating that the document contains confidential 
information. This marking will be deemed to satisfy the request 
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) 
& 210.5(e)(2)). 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 any confidential filing. 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, solely for cybersecurity purposes. 
All contract personnel will sign appropriate nondisclosure agreements. 
All nonconfidential written submissions will be available for public 
inspection on EDIS.
    The Commission vote for this determination took place on November 
12, 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: November 12, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-25134 Filed 11-17-21; 8:45 am]
BILLING CODE 7020-02-P