[Federal Register Volume 88, Number 42 (Friday, March 3, 2023)]
[Notices]
[Pages 13466-13467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04369]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1271]


Certain Silicon Photovoltaic Cells and Modules With 
Nanostructures, and Products Containing the Same; Notice of Commission 
Determination To Review in Part and, on Review, To Affirm a Final 
Initial Determination Finding No Violation; Termination of the 
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that, on September 1, 2022, the 
presiding chief administrative law judge (``CALJ'') issued a combined 
final initial determination (``ID'') on violation and recommended 
determination (``RD'') on remedy and bonding. The final ID finds no 
violation of section 337 in the above-captioned investigation. The 
Commission has determined to review the final ID in part and, on 
review, affirm the final ID's finding of no violation. The 
investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3179. 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. Hearing-impaired persons are advised that information on 
this matter can be obtained by contacting the Commission's TDD 
terminal, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on July 20, 2021, based on a complaint filed by Advanced Silicon Group 
Technologies, LLC (``ASGT'') of Lowell, Massachusetts. 86 FR 38356 
(July 20, 2021). The complaint, as supplemented, alleges violations of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, 
based on the importation into the United States, the sale for 
importation, and the sale within the United States after importation of 
certain silicon photovoltaic cells and modules with nanostructures, and 
products containing the same by reason of infringement of certain 
claims of U.S. Patent Nos. 10,269,995 (``the '995 patent''); 8,450,599 
(``the '599 patent''); 8,852,981 (``the '981 patent''); 9,601,640 
(``the '640 patent''); 9,768,331 (``the '331 patent''); and 10,692,971 
(``the '971 patent''). Id. at 38357. The complaint further alleges that 
a domestic industry exists or is in the process of being established. 
Id. The notice of investigation named 28 respondents, including: 
Canadian Solar International Limited of Hong Kong, China; Canadian 
Solar Manufacturing (Thailand) Co. Ltd. of Chon Buri, Thailand; 
Canadian Solar Manufacturing Vietnam Co. Ltd. of Hai Phong City, 
Vietnam; Canadian Solar (USA) Inc. of Walnut Creek, California; and 
Recurrent Energy SH Proco LLC of Walnut Creek, California (``Canadian 
Solar Respondents''); Hanwha Solutions Corporation of Seoul, Republic 
of Korea; Hanwha Q Cell EPC USA LLC of Irvine, California; Hanwha Q 
Cells America Inc. of Irvine, California; Hanwha Q Cells USA Inc. of 
Dalton, Georgia; and Hanwha Q Cells Malaysia Sdn. Bhd of Selangor, 
Malaysia (``Hanwha Respondents''); Ningbo Boway Alloy Material Co., 
Ltd. of Zhejiang Province, China; Boviet Solar Technology Co., Ltd. of 
Bac Giang Province, Vietnam; Boviet Renewable Power, LLC of San Jose, 
California; and Boviet Solar USA Ltd. of San Jose, California (``Boviet 
Respondents''); and Canadian Solar Inc. of Ontario, Canada; Canadian 
Solar Manufacturing (Changshu) Co. Inc. of Jiangsu, China; Canadian 
Solar Manufacturing (Luoyang) Inc. of Henan, China; Canadian Solar 
Solutions, Inc. of Ontario, Canada; Canadian Solar Construction (USA) 
LLC of Walnut Creek, California; Recurrent Energy Group Inc. of San 
Francisco, California; Recurrent Energy, LLC of Walnut Creek, 
California; Hanwha Q Cells GmbH of Bitterfeld-Wolfen, Germany; Hanwha Q 
Cells (Qidong) Co., Ltd. of Jiangsu, China; Hanwha Energy USA Holdings 
Corp. (d/b/a 174 Power Global Corporation) of Irvine, California; 
Hanwha Q Cells USA Corp. of Irvine, California; HQC Rock River Solar 
Holdings LLC of Irvine, California; HQC Rock River Solar Power 
Generation Station, LLC of Beloit, Wisconsin; and Hanwha Q CELLS & 
Advanced

[[Page 13467]]

Materials Corp. of Seoul, Republic of Korea (``Terminated 
Respondents''). Id. The Office of Unfair Import Investigations 
(``OUII'') is also named as a party. Id.
    On February 22, 2022, the Commission determined to terminate the 
investigation as to the '971 patent (Order No. 7) and the Terminated 
Respondents (Order No. 8) based on ASGT's withdrawal of the allegations 
in the complaint as to that patent and those respondents. Order Nos. 7 
and 8 (Feb. 1, 2022), unreviewed by Comm'n Notice (Feb. 22, 2022). On 
June 21, 2022, the Commission determined to terminate the investigation 
as to the '995 patent, asserted claims 17 and 25 of the '599 patent, 
asserted claims 1, 2, and 26 of the '981 patent, asserted claims 14 and 
16-18 of the '640 patent, and asserted claims 2 and 10 of the '331 
patent based on ASGT's withdrawal of the allegations in the complaint 
as to that patent and those claims. Order No. 12 (May 31, 2022), 
unreviewed by Comm'n Notice (June 21, 2022).
    On September 1, 2022, the CALJ issued the subject final ID on 
violation and RD on remedy and bond. The ID finds that no violation of 
section 337 has occurred as to the Canadian Solar Respondents, Hanwha 
Respondents, and Boviet Respondents with respect to the claims of the 
four remaining asserted patents--i.e., the '599, '981, '640, and '331 
patents. Specifically, the ID finds: (1) no infringement as to any of 
the remaining asserted patents; (2) that claim 27 of the '981 patent is 
invalid as anticipated by U.S. Patent Application Publication No. 
US2011/0140085 (``Homyk 2011''); (3) that claim 1 of the '331 patent is 
invalid as obvious over (i) the combination of the printed publications 
titled ``Silicon Nanowire-Array-Textured Solar Cells for Photovoltaic 
Application'' (``Chen 2010'') and ``Crystalline Silicon Solar Cells and 
Modules'' (``Tobias 2003''), as well as (ii) the combination of U.S. 
Patent Application Publication No. US2013/0340824 (``Oh 2013'') and 
Tobias 2003; (4) that ASGT has not satisfied the technical prong of the 
domestic industry requirement as to any of the remaining asserted 
patents; (5) that ASGT has satisfied the economic prong of the domestic 
industry requirement as to the remaining asserted patents; and (6) that 
ASGT's assertion of violation as to the '331 patent is not barred by 
inequitable conduct.
    The RD recommends that, should the Commission determine that 
violations of section 337 occurred, the Commission should: (i) issue a 
limited exclusion order against the remaining respondents' infringing 
products; (ii) issue a cease and desist order against the Canadian 
Solar Respondents, but not against the Hanwha Respondents or Boviet 
Respondents; and (iii) enter no bond for any importations of infringing 
products during the period of Presidential review.
    On September 19, 2022, ASGT filed a petition for review of certain 
findings in the final ID concerning infringement by only the Canadian 
Solar Respondents as to the '981 and '640 patents, the finding that 
claim 27 of the '981 patent is invalid as anticipated by Homyk 2011, 
satisfaction of the technical prong of the domestic industry 
requirement as to the '981 and '640 patents; and contingently, whether 
ASGT has satisfied the economic prong of the domestic industry 
requirement based on an industry in the process of being established. 
On September 27, 2022, the Canadian Solar Respondents and OUII each 
filed a response to ASGT's petition.
    On October 5, 2022, ASGT filed a submission on the public interest 
pursuant to Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)). The 
Commission did not receive any public interest submissions from the 
remaining respondents. The Commission also did not receive any 
submissions on the public interest from members of the public in 
response to the Commission's Federal Register notice. 87 FR 55852-53 
(Sept. 12, 2022).
    Having reviewed the record in this investigation, including the 
final ID, ASGT's petition, and the responses thereto, the Commission 
has determined to review the final ID in part. Specifically, the 
Commission has determined to review the ID's finding that ASGT has 
satisfied the economic prong of the domestic industry requirement as to 
the remaining asserted patents. On review, the Commission has 
determined to take no position on that issue.
    Further, the Commission has determined to review, and on review, to 
correct the following typographical/clerical errors in the final ID: 
(1) in the twenty-first line of page 123, ``does not remove (or 
break)'' is replaced with ``removes (or breaks)''; (2) in the fifth 
line of page 161 and the twelfth line of page 174, ``Tobias 2013'' is 
replaced with ``Tobias 2003''; (3) the last sentence of the first full 
paragraph on page 174 is replaced with ``In addition, Dr. Lebby 
testified that Oh 2013 disclosed screen printing on nanowires and, 
moreover, that it would not have been difficult for a person of 
ordinary skill in the art to screen print a comb-like pattern onto 
silicon nanostructures. See RX-0001C (Lebby) at Q/A 318-25.''; (4) in 
the eighth line of page 175, ``Chen 2010 and Tobias'' is replaced with 
``Oh 2013 and Tobias 2003''; and (5) the following paragraph is added 
between the first and second full paragraphs on page 8: ``Boviet 
Renewable Power, LLC (`Boviet Renewable') is a corporation existing 
under the laws of the State of Delaware and a subsidiary of Ningbo 
Boway having a principal place of business in San Jose, California. See 
Complaint, ] 34; Boviet Response to Complaint, ] 34.''
    In addition, the Commission has determined to review, and on 
review, to strike the discussion and finding at Section II.A on page 15 
of the final ID that the Commission has ``subject matter jurisdiction'' 
over this investigation. The concept of ``subject matter jurisdiction'' 
does not apply to administrative agencies. City of Arlington, Tex. v. 
FCC, 569 U.S. 290, 297-98 (2013).
    Lastly, the Commission has determined to review, and on review, to 
affirm with supplemental reasoning the final ID's finding that Homyk 
2011 anticipates claim 27 of the '981 patent. Specifically, ASGT's 
argument in its post-hearing brief (and petition for review) that Homyk 
2011 does not teach the ``a portion of the surface'' limitation of 
claim 27 is waived because ASGT failed to raise the argument in its 
pre-hearing brief. See Order No. 2 at 11-12 (July 16, 2021) (Ground 
Rule 7c (deeming a contention abandoned or withdrawn if it is not set 
forth in detail in a party's pre-hearing brief)); Complainant's Post-
Hearing Brief (Apr. 26, 2022) at 154-55; Complainant's Petition for 
Commission Review of Initial Determination (Sept. 19, 2022) at 35-36.
    The Commission has determined not to review the remaining findings 
in the final ID. Accordingly, the Commission has determined to affirm 
the final ID's finding of no violation of section 337. The 
investigation is terminated.
    The Commission vote for this determination took place on February 
27, 2023.
    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: February 27, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-04369 Filed 3-2-23; 8:45 am]
BILLING CODE 7020-02-P