In the Matter of Certain Plastic Food Containers; Notice of Final Determination of Violation of Section 337 and Issuance of General Exclusion Order; Termination of the Investigation, 30481-30482 [05-10573]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 70, Number 101 (Thursday, May 26, 2005)]
[Notices]
[Pages 30481-30482]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10573]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-514]


In the Matter of Certain Plastic Food Containers; Notice of Final 
Determination of Violation of Section 337 and Issuance of General 
Exclusion Order; Termination of the Investigation

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 find a violation of section 337 of the 
Tariff Act of 1930, as amended, in the above-captioned investigation. 
Notice is also given that the Commission has issued a general exclusion 
order in the above-captioned investigation and has terminated the 
investigation.

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 202-205-3095. Copies of 
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://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 (the `` `138 patent''); of U.S. Patent No. 6,196,404 (the 
`` `404 patent''); and of U.S. Design Patent No. D 415,420 (the `` `420 
patent''). 69 FR 34691 (June 22, 2004). Plastic food containers such as 
those claimed by the patents in issue are used for packaging foods from 
restaurants, food processors, and educational and government 
institutions with food service programs.
    On August 19, 2004, complainant Newspring Industrial Corp. 
(``Newspring'') moved for an order directing that each of the two 
respondents, Jiangsu Sainty Corporation, Ltd. (``Jiangsu'') and Taizhou 
Huasen Household Necessities, Co., Ltd. (``Taizhou''), show cause as to 
why each should not be found in default for failure to respond to the 
complaint and notice of investigation. Newspring also requested an 
order finding the respondents in default if they failed to show cause. 
On August 27, 2004, the Investigative Attorney (``IA'') filed a 
response in support of the motion for an order to show cause, but 
opposed any finding that respondents are in default as premature. 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.
    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 IA filed a response supporting the 
motions with respect to most but not all issues. He supported a summary 
determination that the domestic industry requirement had been satisfied 
as to each of the patents in issue. He also supported a summary 
determination that Jiangsu had violated section 337 with respect to 
each of the patents at issue. As to Taizhou, the IA supported a summary 
determination of violation as to the `420 patent, but not as to the 
`138 and `404 patents.
    On October 12, 2004, the ALJ issued an ID (Order No. 7) with 
respect to Newspring's motion to find respondents in default. Noting 
that neither respondent responded to the notice to show cause, the ALJ 
found the respondents in default. The Commission determined not to 
review the ID.
    On February 10, 2005, the ALJ issued the subject ID (Order No. 8), 
granting Newspring's motions for summary determinations with respect to 
most but not all issues. Consistent with the position of the IA, the 
ALJ determined that a domestic industry had been established with 
respect to each of the asserted patents, and that Jiangsu had violated 
section 337 with respect to each asserted patent as well. He determined 
that Taizhou had violated section 337 with respect to the `420 design 
patent, but found that a genuine issue of fact remained as to whether 
the accused Taizhou products infringed the

[[Page 30482]]

`138 and `404 utility patents. Accordingly, he denied complainant's 
motion as to Taizhou in part. The ALJ also recommended the issuance of 
a general exclusion order and that the bond permitting temporary 
importation during the Presidential review period be set at 100 percent 
of the entered value of the infringing imported product. No party 
petitioned for review of the ID.
    On March 18, 2005, the Commission issued a notice of its decision 
to review the ID. The notice indicated that the review ``is for the 
limited purpose of examining possible formatting and typographical 
errors contained on one page of the ID.'' 70 FR 13206, 13206 (March 18, 
2005). The notice indicated that the Commission sought comments from 
the parties to the investigation with respect to the issues under 
review. It also indicated that the Commission sought comments from the 
parties to the investigation, interested government agencies, and any 
other interested parties on the issues of remedy, the public interest, 
and bonding.
    On March 28, 2005, the Commission received comments from Newspring 
and the IA. No reply submissions were received.
    Having examined the relevant portions of the record in this 
investigation, including the ALJ's Order No. 8, and the written 
submissions on remedy, the public interest, and bonding, the Commission 
determined to adopt Order No. 8 as its determination, subject to two 
formatting and typographical modifications to page 15 of the Order. 
Further details as to the modifications are provided in Commission's 
opinion issued in connection with this final determination.
    The Commission also determined to issue a general exclusion order 
prohibiting unlicensed entry for consumption of plastic food containers 
that infringe the claim of U.S. Design Patent No. D 415,420, claim 1 of 
U.S. Patent No. 6,056,138, or claim 1 of U.S. Patent No. 6,196,404. In 
so doing, the Commission determined that the public interest factors 
enumerated in section 337(g) do not preclude the issuance of the 
aforementioned remedial order and that the bond during the Presidential 
review period shall be 100 percent of the entered value of the articles 
in question. The Commission's order was delivered to the President on 
the day of its issuance.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930 (19 U.S.C. 1337(g)(2)), and sections 210.41 and 
210.50 of the Commission's Rules of Practice and Procedure, (19 CFR 
210.41 and 210.50).

    By order of the Commission.

    Issued: May 23, 2005.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-10573 Filed 5-25-05; 8:45 am]
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