Certain Road Milling Machines and Components Thereof Commission Determination To Review in Part a Final Initial Determination; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding

Lisa Barton
International Trade Commission
23 April 2019

[Federal Register Volume 84, Number 78 (Tuesday, April 23, 2019)]
[Notices]
[Pages 16882-16884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08104]


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

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1067]


Certain Road Milling Machines and Components Thereof Commission 
Determination To Review in Part a Final Initial Determination; Schedule 
for Filing Written Submissions on Remedy, the Public Interest, and 
Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``the Commission'') has determined to review in part the 
final initial determination (``ID'') issued by the presiding 
administrative law judge (``ALJ'') finding a violation of section 337 
of the Tariff Act of 1930, as

[[Page 16883]]

amended (``section 337''), in the above-referenced investigation on 
October 1, 2018.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3115. 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 
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337''), on August 25, 2017, based on a complaint filed by 
Wirtgen America, Inc. of Antioch, Tennessee (``Wirtgen'' or 
``Complainant''). 82 FR 40596-97 (Aug. 25, 2017). The complaint alleges 
a violation of section 337 by reason of infringement of certain claims 
of U.S. Patent Nos. 9,644,340 (``the '340 patent''); 9,624,628 (``the 
'628 patent''); 9,656,530 (``the '530 patent''); 7,530,641 (``the '641 
patent''); and 7,828,309 (``the '309 patent''). The complaint named as 
respondents Caterpillar Bitelli SpA of Minerbio, Italy (``Caterpillar 
Bitelli''); Caterpillar Prodotti Stradali S.r.L. of Minerbio, Italy; 
Caterpillar Americas CV of Geneva, Switzerland; Caterpillar Paving 
Products, Inc. of Minneapolis, MN; and Caterpillar Inc. of Peoria, IL 
(``Caterpillar'' or ``Respondents''). Id. at 40596. The Office of 
Unfair Import Investigations is named as a party in this investigation. 
Id. Subsequently, the investigation was terminated as to respondent 
Caterpillar Bitelli. The investigation was also terminated with respect 
to the '628 patent.
    The evidentiary hearing on the question of violation of section 337 
was held April 20-24, 2018. The ALJ issued a final ID on violation on 
October 1, 2018. The ID found that a violation of section 337 has 
occurred in this investigation with respect to the '530 and '309 
patents, and no violation of section 337 has occurred with respect to 
the '641 and '340 patent. The Commission determined to extend the 
deadlines for determining whether to review the final ID and/or the 
target date of the investigation by notices dated February 21, 2019; 
February 4, 2019; and November 9, 2018. We note that these notices 
inadvertently misstated that the ALJ found no violation of section 337 
in this investigation, and we hereby correct those misstatements. The 
ALJ issued his recommended determination (``RD'') on remedy, the public 
interest and bonding on October 18, 2018. The RD recommended that if 
the Commission finds a violation of section 337 in the present 
investigation, the Commission should: (1) Issue a limited exclusion 
order (``LEO'') covering products that infringe the patent claims as to 
which a violation of section 337 has been found; (2) issue a cease and 
desist order (``CDO''); and (3) require no bond during the Presidential 
review period.
    Both parties to the investigation filed timely petitions for review 
of various portions of the final ID, as well as timely responses to the 
petitions. The parties also timely filed their respective Public 
Interest Statements pursuant to 19 CFR 210.50(a)(4). Responses from the 
public were likewise received by the Commission pursuant to notice. See 
Notice of Request for Statements on the Public Interest (Oct. 16, 
2018).
    Having examined the record in this investigation, including the 
final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the final ID in part. In 
particular, the Commission has determined to review the ALJ's findings 
and analysis pertaining to the obviousness determinations with regard 
to claims 26, 35, and 36 of the '309 patent, see ID at 107-111, 120-
123, 124-128, 128-130, 130-136, and, on review, to state that these 
findings and analysis lead to the conclusion that claims 26, 35, and 36 
are invalid as obvious. As a result, the Commission modifies the 
conclusion of law No. 18 on page 436 of the ID to read as follows: 
``18) Caterpillar has shown through clear and convincing evidence that 
asserted claim 36 of the '309 Patent is invalid as obvious under 35 
U.S.C. 103. Caterpillar has not shown through clear and convincing 
evidence that asserted claims 10 and 29 of the '309 Patent are invalid 
under 35 U.S.C. 103.''
    The Commission has determined not to review the remainder of the 
ID.
    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 
respondents 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 are 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 
(Dec. 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 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.
    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 address the recommended 
determination on remedy, the public interest and bonding issued on 
October 18, 2018, by the ALJ. Complainants are also requested to submit 
proposed remedial orders for the Commission's consideration.
    Complainants are further requested to provide the expiration date 
of the '530 and '309 patents, the HTSUS numbers

[[Page 16884]]

under which the accused articles are imported, and any known importers 
of the accused products. The written submissions and proposed remedial 
orders must be filed no later than the close of business on May 1, 
2019. Reply submissions must be filed no later than the close of 
business on May 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-1067'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronicfiling.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, solely for cybersecurity 
purposes. All contract personnel will sign appropriate nondisclosure 
agreements. 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: April 17, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-08104 Filed 4-22-19; 8:45 am]
 BILLING CODE 7020-02-P