Notice of Commission Determination to Review-in-Part a Final Determination on Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; In the Matter of Certain Nitrile Gloves; and In the Matter of Certain Nitrile Rubber Gloves, 64636-64638 [E8-25859]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 73, Number 211 (Thursday, October 30, 2008)]
[Notices]
[Pages 64636-64638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25859]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-608; Investigation No. 337-TA-612]


Notice of Commission Determination to Review-in-Part a Final 
Determination on Violation of Section 337; Schedule for Filing Written 
Submissions on the Issues Under Review and on Remedy, the Public 
Interest, and Bonding; In the Matter of Certain Nitrile Gloves; and In 
the Matter of Certain Nitrile Rubber Gloves

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 a portion of the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on August 25, 2008, regarding whether there is a violation of 
section 337 of the Tariff Act of 1930, 19 U.S.C. * 1337, in the above-
captioned consolidated investigation.

FOR FURTHER INFORMATION CONTACT: Michelle Walters, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-5468. 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 Inv. No. 337-TA-
608 on July 6, 2007, based on a complaint filed by Tillotson 
Corporation d.b.a. Best Manufacturing Company (``Tillotson''). The 
complaint alleged violations of section 337 of the Tariff Act of 1930 
(19 U.S.C. **1337) in the importation into the United States, the sale 
for importation, and the sale within the United States after 
importation of certain nitrile gloves by reason of infringement of 
various claims of United States Patent No. Re. 35,616 (``the '616 
patent''). The complaint named over thirty respondents. The Commission 
instituted a second investigation, Inv. No. 337-TA-612, on August 22, 
2007, based on a complaint filed by Tillotson. That complaint also 
alleged violations of section 337 in the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain nitrile gloves by reason of infringement 
of various claims of the '616 patent and named seven respondents. On 
September 19, 2007, the ALJ consolidated Inv. No. 337-TA-608 with Inv. 
No. 337-TA-612.
    On August 25, 2008, the ALJ issued a final ID and recommended 
determination on remedy and bonding in the above-referenced 
consolidated investigation, finding that the active respondents did not 
violate section 337. Specifically, he found that the vast majority of 
accused gloves infringe claims 17, 18, and 19 of the '616 patent, but 
that nine accused gloves do not infringe the asserted claims. He also 
concluded that when the patentees amended the claims through a reissue 
application filed more than two years after the grant of the original 
patent, they improperly enlarged the scope of the claims, rendering 
them invalid. The ALJ further concluded that the claims are invalid 
because the patentees filed a defective reissue declaration when 
applying for the reissue patent. He rejected other arguments of 
invalidity and unenforceability. Accordingly, the ALJ concluded that 
respondents had not violated section 337.
    On September 8, 2008, complainant Tillotson filed a petition for 
review, as did several respondents. On September 16, 2008, respondents 
filed a response to complainant's petition and complainant filed a 
response to respondents' petition.
    Having examined the record of this investigation, including the 
ALJ's ID and the submissions of the parties, the Commission has 
determined (1) to review the ALJ's claim construction of the term 
``predetermined pressure,'' (2) to review the ALJ's determination of 
invalidity for a broadening reissue, (3) to review the ALJ's 
determination of invalidity for a deficient reissue declaration, (4) to 
review the ALJ's determination that the claims are not invalid for 
failure to disclose a best mode, (5) to review the ALJ's determination 
that the claims are not invalid for lack of enablement, and (6) not to 
review the ALJ's determinations relating to any of the remaining issues 
on violation. Finally, the Commission has determined to deny 
complainant's request for oral argument.
    The parties should brief their positions on the issues on review 
with reference to the applicable law and the evidentiary record. In 
connection with its review, the Commission is particularly interested 
in responses to the following questions:
    1. Before the ALJ and in its petition for review, complainant 
asserted that the term ``predetermined pressure'' means ``the amount of 
pressure first exerted on the hand by the glove after the glove is 
donned.'' Nevertheless, complainant also states in its petition that 
the ``predetermined pressure'' must be determined in advance--a 
limitation that is omitted from its proposed claim construction. 
Assuming that the ``predetermined pressure'' must be determined in 
advance, what does it

[[Page 64637]]

mean to determine the pressure in advance?
    a. Please explain the meaning of the word ``determine.'' Please 
submit copies of any dictionary entries that you rely upon for the term 
``determine'' and any dictionary entries that you relied upon before 
the ALJ for the term ``predetermine.''
    b. Must a person select a particular pressure to be exerted on the 
hand, for example, 100 psi, and then make the glove and test it to 
ensure that it meets the 100 psi requirement? If so, is a mental step, 
such as this, appropriate in a product claim?
    c. Or is it enough to actually measure the pressure in psi, for 
example, before putting the glove on the hand? For purposes of this 
question, assume that the claims require that the predetermined 
pressure be determined in advance of initially exerting the pressure on 
the hand.
    d. Or is it enough that the pressure is fixed by ``basic physics'' 
when the glove is made? Can the pressure in fact be calculated from the 
physical characteristics of the glove and the hand?
    e. How do the intrinsic and extrinsic evidence support your 
responses?
    2. State precisely how your claim construction of the term 
``predetermined pressure'' differs from the ALJ's claim construction.
    3. Regarding the issue of broadening reissue, if the 
``predetermined pressure'' is determined in advance by selecting a 
specific pressure and then making the glove, were the claims broadened 
when the claims were amended during reissue?
    4. If the ``predetermined pressure'' is determined in advance by 
measuring the pressure in advance, were the claims broadened when the 
claims were amended during reissue?
    5. If the ``predetermined pressure'' is determined in advance by 
means of the properties of the glove, i.e., basic physics, were the 
claims broadened when the claims were amended during reissue?
    6. Please analyze these three scenarios (3, 4, and 5) under the 
hypothetical glove test.
    7. Has the United States Court of Appeals for the Federal Circuit 
ever applied the omitted limitation test in the broadening reissue 
context?
    8. Regarding the issue of the reissue declaration, assuming that 
Dethmers Manufacturing Co., Inc. v. Automatic Equipment Manufacturing 
Co., 272 F.3d 1365 (Fed. Cir. 2001), and 37 CFR 1.175(a) (1996) control 
and further assuming that the change from ``predetermined pressure'' to 
``initial pressure'' (regardless of their meanings) was a broadening 
amendment, were the declarations deficient?
    9. Was the amendment a small change in language that did not affect 
the scope of claim 1? If so, did the change need to be explained in the 
reissue declaration?
    10. Regarding the issue of enablement, what must respondents 
establish in order to prove that the claims are not enabled?
    11. Were any articles or references submitted into evidence that 
discuss the use of non-carboxylated nitrile butadiene rubber in thin 
films?
    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 a 
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 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).
    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 United States 
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 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 and the Commission investigative 
attorney are also requested to submit proposed remedial orders for the 
Commission's consideration. Complainant is also requested to state the 
dates that the patent expires and the HTSUS numbers under which the 
accused products are imported. The written submissions and proposed 
remedial orders must be filed no later than close of business on 
November 10, 2008. Reply submissions must be filed no later than the 
close of business on November 17, 2008. The written submissions must be 
no longer than 60 pages and the reply submissions must be no longer 
than 30 pages. No further submissions on these issues will be permitted 
unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
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 why 
the Commission should grant such treatment. See 19 CFR 210.6. 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.
    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 sections 210.42-46 and 210.50 of the Commission's Rules of Practice 
and Procedure (19 CFR 210.42-46 and 210.50).


[[Page 64638]]


    Issued: October 24, 2008.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8-25859 Filed 10-29-08; 8:45 am]
BILLING CODE 7020-02-P