Certain Windshield Wiper Devices and Components Thereof; Notice of Commission Decision To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions |
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Jennifer D. Rohrbach
International Trade Commission
July 15, 2014
[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Notices]
[Pages 41303-41305]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-16526]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-881]
Certain Windshield Wiper Devices and Components Thereof; Notice
of 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
(``final ID'') issued on May 8, 2014, finding a violation of section
337 of the Tariff Act of 1930, as amended, 19 U.S.C. Sec. 1337
(``section 337'') in the above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-2301. 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 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 June 11, 2013, based on a complaint filed by complainants Federal-
Mogul Corporation of Southfield, Michigan and Federal-Mogul S.A. of
Aubange, Belgium (collectively ``Federal-Mogul''). 78 FR 35050-51 (June
11, 2013). The complaint alleges violations of section 337 in the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain windshield
wiper devices and components thereof by reason of infringement of
claims 1-14 of U.S. Patent No. 8,347,449 (``the '449 patent''). The
complaint further alleges the existence of a domestic industry. The
Commission's Notice of Investigation named as respondents Trico
Corporation of Rochester Hills, Michigan (``Trico Corp.''); Trico
Products of Brownsville, Texas (``Trico Products''); and Trico
Components, SA de CV of Matamoros, Mexico (collectively ``Trico''). 78
FR at 35050. The Office of Unfair Import Investigations was also named
as a party. Id. The Notice of Investigation was later amended to
correct the names of Trico Corp. and Trico Products to Trico Products
Corporation of New York. 79 FR 9922-923 (Feb. 21, 2014); see Order No.
27 (Jan. 22, 2014).
On May 8, 2014, the ALJ issued his final ID, finding a violation of
section 337. In particular, the final ID finds that Trico's accused
products infringe claims 1 and 5 of the '449 patent, but that Trico's
accused products do not infringe claims 2-4 and 6-14. The ALJ also
found that the asserted claims of the '449 patent are not invalid for
obviousness under 35 U.S.C. 103 or for lack of written description
under 35 U.S.C. 112. The ALJ further found that Federal-Mogul has
satisfied the domestic industry requirement.
The final ID also includes the ALJ's recommended determination
(``RD'') on remedy and bonding. The ALJ recommended in his RD that the
appropriate remedy is a limited exclusion order barring entry of
Trico's infringing windshield wiper devices and components thereof. The
ALJ did not recommend issuance of a cease and desist order against any
respondent. The ALJ recommended the imposition of a bond of $0.75 per
imported unit during the period of Presidential review.
On May 21, 2014, Trico filed a petition for review concerning,
inter alia, the final ID's finding of violation with respect to claims
1 and 5 of the '449 patent. In particular, Trico requested review of
the final ID's construction of the claim limitation ``detachable,'' the
final ID's finding that claims 1 and 5 are infringed, and the final
ID's finding that the asserted claims of the '449 patent are not
invalid for obviousness. Also on May 21, 2014, Federal-Mogul and the
Commission investigative attorney (``IA'') each filed a petition for
review of certain aspects of the final ID concerning the ALJ's finding
of no violation with respect to claims 2-4 and 6-14 of the '449 patent.
In particular, Federal-Mogul and the IA requested that the Commission
review the final ID's construction of the claim limitation ``clamping''
and the final ID's finding of non-infringement with respect to claims
2-4 and 6-14 of the '449 patent.
On May 29, 2014, Federal-Mogul filed a response to Trico's petition
for review. Also on May 29, 2014, Trico filed a combined response to
Federal-Mogul's and the IA's petitions for review. Further on May 29,
2014, the IA filed a joint response to the private parties' petitions.
None of the parties filed a post-RD statement on the public
interest pursuant to Commission Rule 210.50(a)(4). Furthermore, no
responses were filed by the public in response to the post-RD
Commission Notice issued on May 9, 2014. See Notice of Request for
Statements on the Public Interest, 79 FR 27934-35 (May 9, 2014).
Having examined the record of this investigation, including the
ALJ's final ID, the petitions 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 ALJ's
omission of the caveat ``without
[[Page 41304]]
damage'' in the construction of the limitations ``detachable
therefrom,'' ``detachably engage,'' ``detachably connected,'' and
``releasably secure'' recited in claims 1, 2, 8, and 12 of the '449
patent. The Commission has also determined to review the final ID's
construction of the ``clamping'' limitation recited in claims 2, 3, 6,
7, and 12 of the '449 patent.
With respect to infringement, the Commission has determined to
review the final ID's finding that the accused OE blade products
satisfy the ``detachable'' limitation of claims 1 and 5 of the '449
patent. The Commission has also determined to review the final ID's
finding of no infringement with respect to claims 2-4 and 6-7 of the
'449 patent. The Commission has further determined to review the final
ID's finding of no infringement with respect to claims 8-14 of the '449
patent.
The Commission has also determined to review the final ID's finding
that the asserted domestic industry products satisfy the technical
prong of the domestic industry requirement with respect to claim 1 of
the '449 patent. The Commission has further determined to review the
final ID's finding that Trico failed to show by clear and convincing
evidence that the asserted claims of the '449 patent are obvious in
view of U.S. Patent No. 5,713,099 in combination with U.S. Patent No.
6,799,348.
The Commission has determined not to review the remaining issues
decided in the final 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. Address whether the claim limitations ``clamping features,''
``clamping members,'' and ``clamping edge portions'' recited in the
asserted claims of the '449 patent should be construed independently of
the generic term ``clamping'' and, if so, how should the Commission
construe those claim limitations in light of the intrinsic evidence.
2. Address whether the accused wiper blade products satisfy the
``clamping features'' limitation recited in claim 2 and the ``clamping
members'' limitation recited in claims 3, 6, and 7 of the '449 patent
under the proper construction of those limitations. Please specifically
discuss this issue in relation to your position concerning whether
claim limitations ``clamping features'' and ``clamping members'' should
be construed independently of the generic term ``clamping.''
3. Address whether the accused wiper blade products infringe claims
8-14 of the '449 patent in light of the fact that the Commission has
determined to review the construction of the claim limitations
``detachably connected'' (relevant to claims 8-11), ``releasably
secure'' (relevant to claims 12-14), and ``clamping edge portions''
(relevant to claims 12-14). Regarding the latter claim limitation,
please specifically discuss this issue in relation to your position
concerning whether the claim limitation ``clamping edge portions''
should be construed independently of the generic term ``clamping.''
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 (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 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. 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 In the Matter of 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 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 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 Fed. Reg. 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, including
the Office of Unfair Import Investigations, are requested to file
written submissions on the issues identified in this notice. Parties to
the investigation, including the Office of Unfair Import
Investigations, 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 is also requested to submit proposed remedial
orders for the Commission's consideration. Complainant is also
requested to state the dates that the 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 July 22, 2014. Initial submissions are limited to
70 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 July 30, 2014. Reply submissions
are limited to 25 pages, not including any attachments or exhibits
related to discussion of the public interest. 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-881'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, http://www.usitc.gov/
[[Page 41305]]
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: July 9, 2014.
Jennifer D. Rohrbach,
Supervisory Attorney.
[FR Doc. 2014-16526 Filed 7-14-14; 8:45 am]
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