Certain Road Construction Machines and Components Thereof; Commission Determination To Review-in-Part a Final Initial Determination Finding a Section 337 Violation; Schedule for Filing Written Submissions; Extension of the Target Date for Completion of the Investigation

Lisa Barton
International Trade Commission
18 April 2019

[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Notices]
[Pages 16282-16283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07740]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1088]


Certain Road Construction Machines and Components Thereof; 
Commission Determination To Review-in-Part a Final Initial 
Determination Finding a Section 337 Violation; Schedule for Filing 
Written Submissions; Extension of the Target Date for Completion of the 
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review-in-part a final initial 
determination (``FID'') of the presiding administrative law judge 
(``ALJ'') finding a violation of section 337 of the Tariff Act of 1930, 
as amended. The Commission also extends the target date for completion 
of this investigation by five business days to June 21, 2019.

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 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 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, ``Complainants''). 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), 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 (``the '871 patent''); and 
7,641,419 (``the '419 patent''). 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 (collectively, ``Respondents''). See id. The Office 
of Unfair Import Investigations is not a party to this investigation. 
See id.
    The ALJ terminated the '871 patent from the investigation after 
finding the asserted claims of that patent to be invalid under 35 
U.S.C. 101. See Order No. 18 (May 24, 2018), currently under review, 
Comm'n Notice (July 3, 2018). The Commission terminated the '419 patent 
from the investigation after Complainants withdrew their allegations 
with respect to that patent. See Order No. 26 (July 5, 2018), 
unreviewed, Comm'n Notice (July 25, 2018). The Commission also 
terminated claim 25 of the '693 patent from the investigation after 
Complainants withdrew their allegations as to that claim. See Order No. 
38 (Oct. 16, 2018), unreviewed, Comm'n Notice (Nov. 9, 2018).
    On February 14, 2019, the ALJ issued the FID finding a violation of 
section 337 by certain of Respondents' products by reason of 
infringement of claim 19 of the '693 patent. In addition, the FID finds 
all the asserted claims, except claim 19 of the '693 patent, to be 
invalid as anticipated and/or obvious over the prior art. Furthermore, 
the FID finds that Complainants have satisfied the domestic industry 
requirement with respect to the '693 patent. The ALJ also issued a 
recommended determination (``RD'') recommending that the Commission 
issue a limited exclusion order (``LEO'') against the infringing 
products and a cease and desist order (``CDO'') against each 
respondent. The ALJ further recommended against setting a bond during 
the period of Presidential review.
    On February 27, 2019, both Complainants and Respondents filed 
petitions for review of the FID. On March 7, 2019, the parties filed 
responses to each other's petition. On March 18, 2019, the parties also 
filed statements on the public interest pursuant to Commission Rule 
210.50, 19 CFR 210.50. The Commission issued a Federal Register notice 
requesting public interest comments. See 83 FR 10836-37 (Mar. 22, 
2019).
    The Commission has determined to review the FID in part. 
Specifically, the Commission has determined to review the FID's 
findings with respect to: (1) Claim construction of the term ``a 
retracted position relative to said frame'' and any related findings 
including with respect to infringement, invalidity, and technical prong 
of the domestic industry requirement; (2) infringement of the asserted 
method claims, i.e., claims 17-19, 24, 26-28, and 38 of the '693 
patent; (3) invalidity of certain asserted claims of the '693 patent 
over Volpe SF-100 T4 in view of U.S. Patent No. 3,633,292 (Ulrich); (4) 
no invalidity of certain asserted claims over U.S. Patent No. 3,843,274 
(Gutman) alone or in combination with other prior art; and (5) no 
invalidity of claim 19 over Volpe SF-100 T4 in view of Ulrich and WO 
97/42377 (Busley). The Commission has determined not to review the 
remainder of the FID. At this time, the Commission does not request 
briefing from the parties on the issues under review.
    The Commission has also determined to extend the target date by 
five business days to June 21, 2019.
    In addition, 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.

[[Page 16283]]

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 Op.).
    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 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: 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 also address the recommended 
determination by the ALJ on remedy and bonding. Complainants are also 
requested to submit proposed remedial orders for the Commission's 
consideration. Complainants are further requested to state the date 
that the asserted patent expires and the HTSUS numbers under which the 
accused products are imported, and to supply the names of known 
importers of the products at issue in this investigation.
    Written submissions and proposed remedial orders must be filed no 
later than close of business on April 30, 2019. Reply submissions must 
be filed no later than the close of business on May 10, 2019. No 
further submissions on any of 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 eight 
(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-1088'') 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. 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 non-confidential written submissions will 
be available for public inspection at the Office of the Secretary and 
on EDIS.
---------------------------------------------------------------------------

    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
---------------------------------------------------------------------------

    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: April 12, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-07740 Filed 4-17-19; 8:45 am]
BILLING CODE 7020-02-P