In the Matter of Certain Refrigerators and Components Thereof; Notice of Commission Decision To Review in Its Entirety; A Final Initial Determination Finding No Violation of Section 337, 20345-20346 [E9-9997]

Download as PDF Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Notices definitions of the Domestic Like Product and Domestic Industry; if you disagree with either or both of these definitions, please explain why and provide alternative definitions. Authority: This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission’s rules. By order of the Commission. Marilyn R. Abbott, Secretary to the Commission. Issued: April 24, 2009. William R. Bishop, Acting Secretary to the Commission. [FR Doc. E9–9770 Filed 4–30–09; 8:45 am] BILLING CODE: P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–632] In the Matter of Certain Refrigerators and Components Thereof; Notice of Commission Decision To Review in Its Entirety; A Final Initial Determination Finding No Violation of Section 337 AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined to review the presiding administrative law judge’s (‘‘ALJ’’) final initial determination (‘‘ID’’) finding no violation of Section 337 of the Tariff Act of 1930 in the above-captioned investigation. FOR FURTHER INFORMATION CONTACT: Jean Jackson Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–3104. Copies of the ALJ’s IDs and all other 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. VerDate Nov<24>2008 15:15 Apr 30, 2009 Jkt 217001 On February 21, 2008, the Commission voted to institute this investigation, based on a complaint filed by Whirlpool Patents Company of St. Joseph, Michigan; Whirlpool Manufacturing Corporation of St. Joseph, Michigan; Whirlpool Corporation of Benton Harbor, Michigan, and Maytag Corporation of Benton Harbor, Michigan (collectively, ‘‘Whirlpool’’). The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain refrigerators and components thereof that infringe certain claims of U.S. Patent Nos. 6,082,130 (‘‘the ‘130 patent); 6,810,680 (‘‘the ‘680 patent’’); 6,915,644 (‘‘the ‘644 patent’’); 6,971,730; and 7,240,980. Whirlpool named LG Electronics, Inc.; LG Electronics, USA, Inc.; and LG Electronics Monterrey Mexico, S.A., De, CV (collectively, ‘‘LG’’) as respondents. The complaint, as supplemented, further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337 and requested that the Commission issue an exclusion order and cease and desist orders. On September 11, 2008, Whirlpool and LG filed a joint motion seeking termination of this investigation with respect to the ‘680 patent and the ‘644 patent on the basis of a settlement agreement. On September 25, 2008, the ALJ issued an ID, Order No. 10, terminating the investigation, in part, as to the ‘680 and ‘644 patents. No petitions for review were filed. On October 27, 2008, the Commission determined not to review Order No. 10. On October 17, 2008, Whirlpool filed a motion for summary determination that it had satisfied the importation requirement. On November 20, 2008, the ALJ issued the subject ID, Order No. 14, granting complainant’s motion for summary determination of importation. No petitions for review were filed. On December 15, 2008, the Commission issued notice that it had determined not to review Order No. 14. On July 24, 2008, Whirlpool filed a motion seeking leave to amend the complaint and notice of investigation to (1) remove references to patents that had been withdrawn from this investigation; (2) add a reference to a non-exclusive license that relates to two patents at issue; and (3) update the current state of the domestic industry. On November 25, 2008, the ALJ issued Order No. 15, in which he granted Whirlpool’s motion as to (1) and (3) above and denied it with respect to (2). No petitions for review were filed. The Commission determined SUPPLEMENTARY INFORMATION: PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 20345 not to review the subject ID on December 15, 2008. On February 26, 2009, the ALJ issued a final ID, in which he found no violation of Section 337. On March 11, 2009, Whirlpool filed a petition for review, and LG filed a contingent petition for review. Whirlpool, LG and OUII filed responses. The Commission has determined to review the final ID and requests briefing by the parties to the investigation on the issue of claim construction. In particular, the Commission would like the parties to address: 1. Do the ordinary and customary meanings of the following terms differ from the meanings ascribed to them by the inventors’ testimony: ‘‘freezer compartment,’’ ‘‘disposed within,’’ ‘‘mounted on,’’ ‘‘having an access opening and a closure member for closing the access opening,’’ and ‘‘ice storage bin having a bottom opening.’’ Please discuss with reference to dictionary definitions and expert testimony. 2. Are the phrases ‘‘mounted on’’ and ‘‘disposed within’’ mutually exclusive in the context of claim 1 of the ‘130 patent? Are either or both of these terms synonymous with ‘‘installed’’? 3. How does the prosecution history inform the claim construction, in terms of disclaimer and interpretation? 4. Would one of ordinary skill in the art understand a space defined by a cabinet having an access opening but not having a closure member to mean a ‘‘freezer compartment,’’ given that temperatures within such a compartment cannot be reduced to freezing? 5. In construing claim 1, the parties dispute whether the ‘‘closure member’’ is part of the freezer compartment. What conclusions can be drawn from the term ‘‘freezer compartment closure member’’ appearing in dependent claim 9? What conclusions, if any, can be drawn from a comparison of claim 1 and independent claim 10, the latter clearly identifying the closure member as part of the refrigerator. 6. To what extent should the Commission consider inventor testimony when construing the claims? See Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1580 (‘‘Markman requires us to give no deference to the testimony of the inventor about the meaning of the claims.’’). 7. For parties proposing additional or different meanings on claim construction, do these point to a different result for infringement, validity, or domestic industry? Please explain with regard to each relevant E:\FR\FM\01MYN1.SGM 01MYN1 20346 Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Notices refrigerator model. Responses should rely on evidence of record. 8. Specifically, with respect to infringement, respond to the following: Does the closure member have to be the closure member to the access to the freezer compartment? If so, can a selfcontained ice maker within a fresh-food compartment qualify as a freezer for which there is a closure member within the meaning of claim 1? Does it matter if both the ice maker and the storage unit are in the closure member? Opening submissions must be filed no later than close of business on May 8, 2009. Reply submissions must be filed no later than the close of business on May 15, 2009. 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 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 non-confidential 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 section 210.42–46 of the Commission’s Rules of Practice and Procedure (19 CFR 210.42–46). By order of the Commission. Marilyn R. Abbott, Secretary to the Commission. Issued: April 27, 2009. William R. Bishop, Acting Secretary to the Commission. [FR Doc. E9–9997 Filed 4–30–09; 8:45 am] BILLING CODE 7020–02–P VerDate Nov<24>2008 15:15 Apr 30, 2009 Jkt 217001 DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 09–15] Roy Chi Lung, M.D.; Revocation of Registration On October 22, 2008, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Roy C. Lung, M.D. (Respondent), of Fountain Valley, California. The Show Cause Order proposed the revocation of Respondent’s DEA Certificate of Registration, BL4971051, as a practitioner, and the denial of any pending applications to renew or modify his registration, on the grounds that Respondent is ‘‘not authorized to handle controlled substances in the state of California,’’ and that he falsified his most recent application for renewal of his DEA registration. Show Cause Order at 1. More specifically, the Show Cause Order alleged that effective January 30, 2008, the Medical Board of California suspended Respondent’s license to practice medicine. Id. The Show Cause Order thus alleged that Respondent is ‘‘currently without authority to handle controlled substances in the State of California, the State in which’’ Respondent is registered with DEA. Id. The Show Cause Order also alleged that on April 1, 2008, Respondent falsified his application for renewal of his DEA registration when he answered ‘‘no’’ to the question of whether he had ever had a state license suspended. Id. at 2. Respondent requested a hearing on the allegations, and the matter was assigned to an Administrative Law Judge (ALJ), who proceeded to conduct pre-hearing procedures. Thereafter, the Government moved for summary disposition on the ground that under the terms of an order of the Medical Board of California, Respondent’s state medical license was suspended. Gov. Mot. at 1. The motion noted that the Medical Board’s Order of Interim Suspension not only suspended Respondent’s license, it expressly ‘‘prohibited Respondent from handling controlled substances and ordered Respondent to deliver to the Board his DEA registration.’’ Id. at 3. The Government argued that there was no dispute that Respondent’s license had been suspended in California, the State in which he maintains his DEA registration, and that under Federal Law, DEA ‘‘cannot register a practitioner to handle controlled substances who is without authority to handle controlled PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 substances in the State in which he practices.’’ Id. at 2 (citing 21 U.S.C. 823(f)). Id. at 2. In support of its motion, the Government attached a copy of the Order of Interim Suspension. The Order specifically stated that Respondent ‘‘shall not * * * [p]ractice or attempt to practice any aspect of medicine in the State of California * * * [nor] [p]ossess, order, purchase, receive, prescribe, furnish, administer, or otherwise distribute controlled substances or dangerous drugs as defined by federal or state law.’’ Johnston, Ex. Dir., v. Chi Wing Lung, M.D., OAH No. L2008010755, Order on Ex Parte Petition for Order of Interim Suspension, January 30, 2008, at 7. The Order also required that Respondent ‘‘immediately deliver to the Division of Medical Quality * * * all Drug Enforcement Administration forms, and all Drug Enforcement Administration permits.’’ Id. The ALJ ordered the Respondent to respond to the Government’s motion by December 9, 2008; Respondent filed his response on December 5, 2008. Respondent requested that the ALJ ‘‘delay ruling on the Government’s motion until April 1, 2009,’’ as Respondent anticipated that the State Board would issue a final decision regarding his medical license by then. R. Resp. at 1–2. On December 12, 2008, the ALJ issued her Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision. The ALJ noted that ‘‘Respondent himself states that his ‘Medical license was suspended on an interim basis pending the recommendation of a California Administrative Law Judge.’ ’’ ALJ at 3. The ALJ thus concluded that ‘‘[t]hrough the Respondent’s own admission, * * * Respondent lacks the authority to practice medicine in the State of California,’’ and ‘‘[c]onsequently, * * * lacks the ability to prescribe controlled substances in that State.’’ Id. Because no material fact was in dispute, the ALJ determined that there was no need for a ‘‘plenary, administrative hearing.’’ Id. at 5. Applying the Agency’s settled rule that it lacks authority under the Controlled Substances Act to maintain a registration if the registrant is without state authority to handle controlled substances in the State in which he practices medicine, the ALJ concluded that ‘‘the DEA lacks authority to continue the Respondent’s DEA registration.’’ Id. at 5; see 21 U.S.C. 823(f), 824(a)(3). The ALJ thus granted the Government’s motion for summary disposition and recommended that the E:\FR\FM\01MYN1.SGM 01MYN1

Agencies

[Federal Register Volume 74, Number 83 (Friday, May 1, 2009)]
[Notices]
[Pages 20345-20346]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9997]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-632]


 In the Matter of Certain Refrigerators and Components Thereof; 
Notice of Commission Decision To Review in Its Entirety; A Final 
Initial Determination Finding No Violation of Section 337

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review the presiding administrative law 
judge's (``ALJ'') final initial determination (``ID'') finding no 
violation of Section 337 of the Tariff Act of 1930 in the above-
captioned investigation.

FOR FURTHER INFORMATION CONTACT: Jean Jackson Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3104. Copies of the 
ALJ's IDs and all other 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: On February 21, 2008, the Commission voted 
to institute this investigation, based on a complaint filed by 
Whirlpool Patents Company of St. Joseph, Michigan; Whirlpool 
Manufacturing Corporation of St. Joseph, Michigan; Whirlpool 
Corporation of Benton Harbor, Michigan, and Maytag Corporation of 
Benton Harbor, Michigan (collectively, ``Whirlpool''). The complaint, 
as supplemented, alleges violations of section 337 based upon the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain 
refrigerators and components thereof that infringe certain claims of 
U.S. Patent Nos. 6,082,130 (``the `130 patent); 6,810,680 (``the `680 
patent''); 6,915,644 (``the `644 patent''); 6,971,730; and 7,240,980. 
Whirlpool named LG Electronics, Inc.; LG Electronics, USA, Inc.; and LG 
Electronics Monterrey Mexico, S.A., De, CV (collectively, ``LG'') as 
respondents. The complaint, as supplemented, further alleges that an 
industry in the United States exists as required by subsection (a)(2) 
of section 337 and requested that the Commission issue an exclusion 
order and cease and desist orders.
    On September 11, 2008, Whirlpool and LG filed a joint motion 
seeking termination of this investigation with respect to the `680 
patent and the `644 patent on the basis of a settlement agreement. On 
September 25, 2008, the ALJ issued an ID, Order No. 10, terminating the 
investigation, in part, as to the `680 and `644 patents. No petitions 
for review were filed. On October 27, 2008, the Commission determined 
not to review Order No. 10.
    On October 17, 2008, Whirlpool filed a motion for summary 
determination that it had satisfied the importation requirement. On 
November 20, 2008, the ALJ issued the subject ID, Order No. 14, 
granting complainant's motion for summary determination of importation. 
No petitions for review were filed. On December 15, 2008, the 
Commission issued notice that it had determined not to review Order No. 
14.
    On July 24, 2008, Whirlpool filed a motion seeking leave to amend 
the complaint and notice of investigation to (1) remove references to 
patents that had been withdrawn from this investigation; (2) add a 
reference to a non-exclusive license that relates to two patents at 
issue; and (3) update the current state of the domestic industry. On 
November 25, 2008, the ALJ issued Order No. 15, in which he granted 
Whirlpool's motion as to (1) and (3) above and denied it with respect 
to (2). No petitions for review were filed. The Commission determined 
not to review the subject ID on December 15, 2008.
    On February 26, 2009, the ALJ issued a final ID, in which he found 
no violation of Section 337. On March 11, 2009, Whirlpool filed a 
petition for review, and LG filed a contingent petition for review. 
Whirlpool, LG and OUII filed responses. The Commission has determined 
to review the final ID and requests briefing by the parties to the 
investigation on the issue of claim construction. In particular, the 
Commission would like the parties to address:
    1. Do the ordinary and customary meanings of the following terms 
differ from the meanings ascribed to them by the inventors' testimony: 
``freezer compartment,'' ``disposed within,'' ``mounted on,'' ``having 
an access opening and a closure member for closing the access 
opening,'' and ``ice storage bin having a bottom opening.'' Please 
discuss with reference to dictionary definitions and expert testimony.
    2. Are the phrases ``mounted on'' and ``disposed within'' mutually 
exclusive in the context of claim 1 of the `130 patent? Are either or 
both of these terms synonymous with ``installed''?
    3. How does the prosecution history inform the claim construction, 
in terms of disclaimer and interpretation?
    4. Would one of ordinary skill in the art understand a space 
defined by a cabinet having an access opening but not having a closure 
member to mean a ``freezer compartment,'' given that temperatures 
within such a compartment cannot be reduced to freezing?
    5. In construing claim 1, the parties dispute whether the ``closure 
member'' is part of the freezer compartment. What conclusions can be 
drawn from the term ``freezer compartment closure member'' appearing in 
dependent claim 9? What conclusions, if any, can be drawn from a 
comparison of claim 1 and independent claim 10, the latter clearly 
identifying the closure member as part of the refrigerator.
    6. To what extent should the Commission consider inventor testimony 
when construing the claims? See Hoechst Celanese Corp. v. BP Chems. 
Ltd., 78 F.3d 1575, 1580 (``Markman requires us to give no deference to 
the testimony of the inventor about the meaning of the claims.'').
    7. For parties proposing additional or different meanings on claim 
construction, do these point to a different result for infringement, 
validity, or domestic industry? Please explain with regard to each 
relevant

[[Page 20346]]

refrigerator model. Responses should rely on evidence of record.
    8. Specifically, with respect to infringement, respond to the 
following: Does the closure member have to be the closure member to the 
access to the freezer compartment? If so, can a self-contained ice 
maker within a fresh-food compartment qualify as a freezer for which 
there is a closure member within the meaning of claim 1? Does it matter 
if both the ice maker and the storage unit are in the closure member?
    Opening submissions must be filed no later than close of business 
on May 8, 2009. Reply submissions must be filed no later than the close 
of business on May 15, 2009. 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 
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 non-confidential 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 section 210.42-46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).
    By order of the Commission.

Marilyn R. Abbott,
Secretary to the Commission.

    Issued: April 27, 2009.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E9-9997 Filed 4-30-09; 8:45 am]
BILLING CODE 7020-02-P