Certain Thermoplastic-Encapsulated Electric Motors, Components Thereof, and Products and Vehicles Containing Same II; Notice of Commission Determination To Review a Final Initial Determination in Its Entirety; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target Date

Katherine Hiner
International Trade Commission
25 February 2019

[Federal Register Volume 84, Number 37 (Monday, February 25, 2019)]
[Notices]
[Pages 6019-6021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03182]



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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1073]


Certain Thermoplastic-Encapsulated Electric Motors, Components 
Thereof, and Products and Vehicles Containing Same II; Notice of 
Commission Determination To Review a Final Initial Determination in Its 
Entirety; Schedule for Filing Written Submissions on the Issues Under 
Review and on Remedy, the Public Interest, and Bonding; Extension of 
the Target Date

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 its entirety the presiding 
administrative law judge's final initial determination, finding no 
violation of section 337 of the Tariff Act of 1930, as amended, with 
respect to U.S. Patent Nos. 7,683,509 and 7,928,348. The Commission has 
also determined to extend the target date for completion of the above-
captioned investigation until April 29, 2019. The Commission requests 
certain briefing from the parties on certain issues under review, as 
indicated in this notice. The Commission also requests briefing from 
the parties and interested persons on the issues of remedy, the public 
interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Lucy Grace D. Noyola, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone 202-205-3438. 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 (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 
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 
1337, on October 11, 2017, based on a complaint filed on September 5, 
2017, by Intellectual Ventures II LLC of Bellevue, Washington (``IV''). 
82 FR 47250 (Oct. 11, 2017). The complaint alleges a violation of 
section 337 by reason of infringement of certain claims of U.S. Patent 
Nos. 7,683,509 (``the '509 patent''); 7,928,348 (``the '348 patent''); 
7,154,200 (``the '200 patent''); 7,067,944 (``the '944 patent''); and 
7,067,952 (``the '952 patent''). The notice of investigation names as 
respondents Aisin Seiki Co., Ltd. of Aichi, Japan, Aisin Holdings of 
America, Inc. of Seymour, Indiana, Aisin Technical Center of America, 
Inc. of Northville, Michigan, and Aisin World Corporation of America of 
Northville, Michigan (collectively, ``Aisin'' or ``Aisin Seiki''); 
Bayerische Motoren Werke AG of Munich, Germany, BMW of North America, 
LLC of Woodcliff Lake, New Jersey, and BMW Manufacturing Co., LLC of 
Greer, South Carolina (collectively, ``BMW''); Denso Corporation of 
Aichi, Japan and Denso International America, Inc. of Southfield, 
Michigan (``collectively, DENSO''); Honda Motor Co., Ltd. of Tokyo, 
Japan, Honda North America, Inc., of Torrance, California, American 
Honda Motor Co., Inc. of Torrance, California, Honda of America Mfg., 
Inc. of Marysville, Ohio, Honda Manufacturing of Alabama, LLC of 
Lincoln, Alabama, and Honda R&D Americas, Inc. of Torrance, California 
(collectively, ``Honda''); Mitsuba Corporation of Gunma, Japan and 
American Mitsuba Corporation of Mount Pleasant, Michigan (collectively, 
``Mitsuba''); Nidec Corporation of Kyoto, Japan and Nidec Automotive 
Motor Americas, LLC of Auburn Hills, Michigan (collectively, 
``Nidec''); and Toyota Motor Corporation of Aichi Prefecture, Japan, 
Toyota Motor North America, Inc. of New York, New York, Toyota Motor 
Sales, U.S.A., Inc. of Torrance, California, Toyota Motor Engineering & 
Manufacturing North America, Inc. of Erlanger, Kentucky, Toyota Motor 
Manufacturing, Indiana, Inc. of Princeton, Indiana, and Toyota Motor 
Manufacturing, Kentucky, Inc. of Georgetown, Kentucky (collectively, 
``Toyota''). The Office of Unfair Import Investigations (``OUII'') was 
also named a party in this investigation.
    The Commission previously terminated the investigation in part with 
respect to respondents BMW, DENSO, Mitsuba, and Nidec, as well as the 
'200, '944, and '952 patents. Notice (Apr. 18, 2018) (determining not 
to review Order No. 22 (Mar. 16, 2018)); Notice (May 4, 2018) 
(determining not to review Order No. 29 (Apr. 10, 2018)); Notice (May 
4, 2018) (determining not to review Order No. 31 (Apr. 16, 2018)); 
Notice (May 11, 2018) (determining not to review Order No. 33 (Apr. 23, 
2018)); Notice (June 19, 2018) (determining not to review Order No. 39 
(May 21, 2018)); Notice (Aug. 15, 2018) (determining not to review 
Order No. 46 (July 19, 2018)); Notice (Aug. 15, 2018) (determining not 
to review Order No. 47 (July 24, 2018)); Notice (Aug. 27, 2018) 
(determining not to review Order No. 48 (Aug. 13, 2018)). Thus, the 
remaining respondents in this investigation are Aisen, Honda, and 
Toyota (collectively, ``Respondents''), and the remaining asserted 
patents are the '509 and '348 patents (collectively, the ``asserted 
patents'').
    On November 13, 2018, the presiding administrative law judge 
(``ALJ'') issued a final initial determination (``ID''), finding no 
violation of section 337 with respect to the '509 and '348 patents. 
Specifically, the ID found that the accused products infringe claims 14 
and 15 of the '509 patent and do not infringe claims 24-27 of the '348 
patent. With respect to both patents, the ID found that IV has not 
satisfied the technical and economic prongs of the domestic industry 
requirement nor have Respondents established that any asserted claim is 
invalid for obviousness.
    On November 27, 2018, the ALJ issued a Recommended Determination 
(``RD'') on remedy, the public interest, and bonding, recommending, 
should the Commission find a violation: (1) The issuance of a limited 
exclusion order directed to certain infringing thermoplastic-
encapsulated electric motors, components thereof, and products and 
vehicles containing same; (2) the issuance of cease and desist orders 
against Aisin and Toyota; and (3) imposition of a bond of zero percent 
for infringing products that are imported during the period of 
Presidential review.
    Also, on November 27, 2018, IV filed a petition for review, and 
Respondents filed a contingent petition for review, each challenging 
various findings in the final ID. On December 6, 2018, IV, Respondents, 
and OUII filed responses to the petitions for review.
    On December 14, 2018, Respondents filed a notice that, on December 
12, 2018, the Patent Trial and Appeal Board of the U.S. Patent and 
Trademark Office issued four final written decisions finding that every 
claim asserted against Respondents in this investigation is 
unpatentable on invalidity grounds.
    On January 30, 2019, the Commission received comments from the 
public in response to the Commission notice issued on December 4, 2018. 
83 FR

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62603 (Dec. 4, 2018). On February 1, 2019, the Commission received 
post-RD public interest comments from IV and Respondents pursuant to 
Commission Rule 210.50(a)(4).
    Having examined the record of this investigation, including the 
final ID and the parties' submissions, the Commission has determined to 
review the final ID in its entirety.
    The Commission has also determined to extend the target date for 
completion of the investigation until April 29, 2019.
    In connection with its review, the Commission requests responses to 
the following questions. The parties are requested to brief their 
positions with reference to the applicable law and the existing 
evidentiary record.
    1. With respect to the ``non-linear heat transfer fluid pathway'' 
limitation required by the asserted claims of the '509 patent, discuss 
whether the specification of the '509 patent defines the term ``non-
linear'' and whether the term should be construed accordingly. If so, 
explain the record evidence cited by the parties in briefing to the 
Commission regarding the process by which the accused element is formed 
and discuss whether the accused element satisfies the ``non-linear'' 
term.
    2. With respect to the ``monolithic body of injection molded 
thermoplastic material substantially encapsulating the at least one 
conductor'' limitation required by the asserted claims of the '348 
patent, describe the process by which the accused element encapsulates 
the conductor and discuss whether that process results in the accused 
element substantially encapsulating the at least one conductor.
    3. With respect to the alleged ``significant and unusual'' 
circumstances, discuss whether the record indicates that the KickStart 
pump is finalized, whether the record supports Encap's projected 
``explosive growth,'' and whether there are any other ``significant and 
unusual'' circumstances in the record.
    4. In the event the Commission determines to issue a form of 
remedy, discuss an appropriate exemption period for the repair and 
replacement of infringing products that are imported before the 
issuance of a remedial order.
    5. In the event the Commission determines to issue a form of 
remedy, discuss an appropriate transition period for the continued 
importation of infringing products after the issuance date of a 
remedial order to allow Respondents to implement and introduce non-
infringing alternatives.
    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 (Dec. 1994), Comm'n 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 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 all of 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 is also requested to submit 
proposed remedial orders for the Commission's consideration. 
Complainant is also requested to state the date that the asserted 
patents expire and the HTSUS numbers under which the accused products 
are imported, and provide identification information for all known 
importers of the subject articles. Initial written submissions and 
proposed remedial orders must be filed no later than close of business 
on March 1, 2019. Reply submissions must be filed no later than the 
close of business on March 8, 2019. 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-1073) in a prominent place on the 
cover page and/or the first page. (See Handbook for Electronic Filing 
Procedures, https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding 
filing should contact the Secretary at (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

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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: February 19, 2019.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2019-03182 Filed 2-22-19; 8:45 am]
BILLING CODE 7020-02-P