In the Matter of Certain Plastic Food Containers; Notice of Commission Decision To Review an Initial Determination Finding a Violation of Section 337 and That the Domestic Industry Requirement is Met; Schedule for Written Submissions, 13206-13208 [05-5389]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 70, Number 52 (Friday, March 18, 2005)]
[Notices]
[Pages 13206-13208]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5389]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-514]


In the Matter of Certain Plastic Food Containers; Notice of 
Commission Decision To Review an Initial Determination Finding a 
Violation of Section 337 and That the Domestic Industry Requirement is 
Met; Schedule 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 an initial determination (``ID'') 
(Order No. 8) issued by the presiding administrative law judge 
(``ALJ'') finding a violation of section 337 and that the domestic 
industry requirement has been met in the above-captioned investigation. 
The review is for the limited purpose of examining possible formatting 
and typographical errors contained on one page of the ID.

FOR FURTHER INFORMATION CONTACT: Michael Diehl, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 205-3095. Copies of all 
nonconfidential 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 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://

[[Page 13207]]

edis.usitc.gov. Hearing-impaired persons are advised that information 
on the matter can be obtained by contacting the Commission's TDD 
terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION: By a notice published on June 22, 2004, the 
Commission instituted an investigation into alleged violations of 
section 337 in the importation and sale of certain plastic food 
containers by reason of infringement of certain claims of U.S. Patent 
No. 6,056,138; of U.S. Patent No. 6,196,404; and of U.S. Design Patent 
No. D 415,420. 69 FR 34691 (June 22, 2004).
    On August 19, 2004, complainant Newspring Industrial Corp. 
(Newspring) moved for an order directing that respondents Taizhou 
Huasen Household Necessities, Co., Ltd. (``Taizhou'') and Jiangsu 
Sainty Corporation, Ltd. (``Jiangsu'') show cause as to why they should 
not be found in default for failure to respond to the complaint and 
notice of investigation. Complainant also asked for an order finding 
respondents in default if they failed to show cause. On August 30, 
2004, the ALJ issued Order No. 5, directing respondents to show cause 
no later than September 17, 2004, why they should not be held in 
default. Neither respondent responded to the order.
    On September 9, 2004, before the ALJ ruled on the motions for 
default, Newspring filed motions for summary determinations that there 
has been a violation of section 337 and that a domestic industry has 
been established with respect to each of the asserted patents. 
Newspring sought a recommendation for the issuance of a general 
exclusion order. On September 23, 2004, the Investigative Attorney 
(``IA'') filed a response in support of the motions, although he 
contended that a genuine issue of material fact exists as to whether 
certain accused products infringe two of the patents in issue.
    On October 12, 2004, the ALJ issued an Initial Determination (ID) 
(Order No. 7), finding the respondents in default. No party petitioned 
for review of the ID. The Commission subsequently issued a notice of 
determination not to review the ID.
    On February 10, 2005, the ALJ issued an ID (Order No. 8), granting 
Newspring's motions for summary determinations in part. He determined 
that a domestic industry had been established with respect to each of 
the asserted patents, and that respondent Jiangsu had violated section 
337 with respect to each asserted patent as well. He determined that 
respondent Taizhou had violated section 337 with respect to the '420 
patent, but denied the motion as to Taizhou with respect to the '138 
and '404 patents. No party petitioned for review of the ID. The ALJ 
also recommended the issuance of a general exclusion order. He also 
recommended that the bond permitting temporary importation during the 
Presidential review period be set at 100 percent of the value of the 
infringing imported product.
    The Commission has determined to review the subject ID (Order No. 
8). The scope of the review is limited to possible formatting and 
typographic errors on page 15 of the ID. The Commission notes that the 
Complainant, on September 28, 2004, filed a corrected version of what 
is apparently the figure that appears on page 15 of the ID. The 
Commission requests comments from the parties regarding whether the 
widths labeled ``A'' and ``B'' in the figure in the ID correspond to 
the widths described in the text of the ID, and whether the indicated 
widths are incorrectly placed in the figure. Comments should also 
address what action, if any, the Commission should take if it finds the 
labeling incorrect and whether all references to ``Figure 1'' on page 
15 of the ID should be changed to ``Figure 5.''
    In connection with the final disposition of this investigation, the 
Commission may issue an order that could result in the exclusion of the 
subject articles from entry into the United States. 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, it 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).
    When 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 in this investigation include the 
effect that an exclusion 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 President has 60 
days to approve or disapprove the Commission's action. During this 
period, the subject articles would be entitled to enter the United 
States under a 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.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review. The 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 February 10, 2005, recommended determination by the 
ALJ on remedy and bonding. Complainant and the Commission's 
investigative attorney are also requested to submit proposed orders for 
the Commission's consideration. Complainant is further requested to 
state the expiration dates of the patents at issue. Main written 
submissions and proposed orders must be filed no later than close of 
business on March 29, 2005. Reply submissions, if any, must be filed no 
later than the close of business on April 5, 2005. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission.
    Persons filing written submissions must file with the Office of the 
Secretary the original document and 14 true copies thereof on or before 
the deadlines stated above. Any person desiring to submit a document 
(or portion thereof) to the Commission in confidence must request 
confidential treatment unless the information has already been granted 
such treatment during the proceedings. All such requests should be 
directed to the Secretary of the Commission and must include a full 
statement of the reasons that the Commission should grant such 
treatment. See section 201.6 of the Commission's Rules of Practice and 
Procedure, 19 CFR 201.6. Documents for which confidential treatment by 
the Commission is sought will be treated accordingly. All 
nonconfidential written submissions will be available for public 
inspection at the Office of the Secretary.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, 19 U.S.C. 1337, and sections 210.16, 210.42, 210.44 
of the

[[Page 13208]]

Commission's Rules of Practice and Procedure, 19 CFR 210.16, 210.42, 
210.44.

    Issued: March 14, 2005.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-5389 Filed 3-17-05; 8:45 am]
BILLING CODE 7020-02-P