Certain Crawler Cranes and Components Thereof; Commission's Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions, 57566-57568 [2014-22775]
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Federal Register / Vol. 79, No. 186 / Thursday, September 25, 2014 / Notices
Dated: September 22, 2014
Scott Elmore,
Program Manager, Forms Management Office,
Office of the Chief Information Officer, U.S.
Immigration and Customs Enforcement,
Department of Homeland Security.
DEPARTMENT OF THE INTERIOR
[FR Doc. 2014–22829 Filed 9–24–14; 8:45 am]
Record of Decision for Tuolumne River
Comprehensive Management Plan,
Yosemite National Park, California
BILLING CODE 9111–28–P
National Park Service
[NPS–PWR–PWRO–15903;
PX.P0131800B.00.1]
National Park Service, Interior.
Notice of Availability.
AGENCY:
DEPARTMENT OF THE INTERIOR
ACTION:
Office of the Secretary
SUMMARY:
[XXXD5198NI DS61100000
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Exxon Valdez Oil Spill Public Advisory
Committee
AGENCY:
ACTION:
Office of the Secretary, Interior.
Meeting Notice.
The Department of the
Interior, Office of the Secretary is
announcing a public meeting of the
Exxon Valdez Oil Spill Public Advisory
Committee.
SUMMARY:
DATES:
October 16, 2014, at 9:30 a.m.
First floor conference room,
Glenn Olds Hall, 4210 University Drive,
Anchorage, Alaska.
ADDRESSES:
Dr.
Philip Johnson, Department of the
Interior, Office of Environmental Policy
and Compliance, 1689 ‘‘C’’ Street, Suite
119, Anchorage, Alaska, (907) 271–
5011.
FOR FURTHER INFORMATION CONTACT:
The Exxon
Valdez Oil Spill Public Advisory
Committee was created by Paragraph
V.A.4 of the Memorandum of
Agreement and Consent Decree entered
into by the United States of America
and the State of Alaska on August 27,
1991, and approved by the United States
District Court for the District of Alaska
in settlement of United States of
America v. State of Alaska, Civil Action
No. A91–081 CV.
The agenda will include a discussion
about the Annual Work Plan and an
opportunity for public comments. The
final agenda and materials for the
meeting will be posted on the Exxon
Valdez Oil Spill Trustee Council Web
site at www.evostc.state.ak.us. All
Exxon Valdez Oil Spill Public Advisory
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SUPPLEMENTARY INFORMATION:
Willie R. Taylor,
Director, Office of Environmental Policy and
Compliance.
[FR Doc. 2014–22844 Filed 9–24–14; 8:45 am]
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The National Park Service has
prepared and approved a Record of
Decision for the Final Environmental
Impact Statement for the Tuolumne
River Comprehensive Management Plan.
Approval of the Tuolumne River
Comprehensive Management Plan
concludes an extensive conservation
planning and environmental impact
analysis effort that began during 2005.
The requisite no-action ‘‘wait period’’
was initiated on March 14, 2014, with
the Environmental Protection Agency’s
Federal Register announcement of the
filing of the Final EIS.
ADDRESSES: Those wishing to review the
Record of Decision may obtain a copy
by contacting the Superintendent, Attn:
Division of Project Management,
Yosemite National Park, P.O. Box 700–
W, 5083 Foresta Road, El Portal, CA
95318 or via telephone request at (209)
379–1202.
FOR FURTHER INFORMATION CONTACT:
Kathleen Morse, Chief of Planning, (209)
379–1270.
SUPPLEMENTARY INFORMATION: The
National Park Service has prepared and
approved a Record of Decision for the
Final Environmental Impact Statement
for the Tuolumne River Comprehensive
Management Plan. This process was
conducted pursuant § 102(2)(C) of the
National Environmental Policy Act of
1969 (Pub. L. 91–190, as amended) and
the regulations promulgated by the
Council on Environmental Quality (40
CFR 1505.2). The National Park Service
has selected ‘‘agency preferred’’
Alternative 4 (with minor modifications
incorporated in regards to continued
operations of the Glen Aulin High Sierra
Camp) for implementation as the
approved Tuolumne River
Comprehensive Management Plan.
Under the selected alternative,
Tuolumne Meadows will retain its
rustic character, the scenic driving
experience through the corridor area
will be enhanced, and limited facilities
and services will be provided. There
will be a comprehensive restoration
program, including a rigorous program
of monitoring and adaptive
management. The Tuolumne Meadows
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campground will be completely
rehabilitated. Approximately 4,700
people at one time will be
accommodated in the entire Tuolumne
River corridor during periods of peak
visitation.
Selected key components of the
approved plan are as follows: (1) Restore
171 acres of meadow and riparian
habitat, including removing
concessioner housing, 21 campground
sites, and other structures that are too
close to the river; (2) mitigate effects of
stock grazing in Lyell Canyon by
establishing fixed campsites with
approved access routes and implement
a grazing capacity based on establishing
range-readiness criteria for stock
grazing; (3) provide for a new visitor
contact station adjacent to Tioga Road
across from Parsons Memorial Lodge,
including parking for day use hikers
(the old contact station will be
converted to office space and its
appurtenant parking will be re-purposed
for use by hikers to Cathedral Lakes); (4)
continue traditional recreational
activities such as hiking, climbing, and
artistic pursuits, and allow whitewater
boaters to float new river reaches
through the Grand Canyon of the
Tuolumne; and (5) increase shuttle
frequency within Tuolumne Meadows
during periods of peak use, and provide
additional transit runs connecting to
Yosemite Valley and Mammoth Lakes.
Four other alternatives were
evaluated, the full range of foreseeable
environmental consequences was
assessed, and appropriate mitigation
measures were identified.
Dated: September 11, 2014.
Christine S. Lehnertz,
Regional Director, Pacific West Region.
[FR Doc. 2014–22841 Filed 9–24–14; 8:45 am]
BILLING CODE 4312–FF–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–887]
Certain Crawler Cranes and
Components Thereof; Commission’s
Determination To Review in Part a
Final Initial Determination Finding a
Violation of Section 337; Request for
Written Submissions
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part the final initial determination
(‘‘ID’’) issued by the presiding
SUMMARY:
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Federal Register / Vol. 79, No. 186 / Thursday, September 25, 2014 / Notices
administrative law judge (‘‘ALJ’’) on
July 11, 2014, finding a violation of
section 337 of the Tariff Act of 1930, 19
U.S.C. 1337, in the above-captioned
investigation.
FOR FURTHER INFORMATION CONTACT:
Amanda Pitcher Fisherow, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
205–2737. 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 (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 this investigation
on July 17, 2013, based on a complaint
filed by Manitowoc Cranes, LLC
(‘‘Manitowoc’’) of Manitowoc,
Wisconsin. 78 FR 42800–01 (July 17,
2013). The complaint alleges violations
of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337 (‘‘section
337’’), by reason of infringement of U.S.
Patent Nos. 7,546,928 (‘‘the ’928
patent’’) and 7,967,158 (‘‘the ’158
patent’’) (collectively ‘‘the asserted
patents’’), and that an industry in the
United States exists or is in the process
of being established as required by
subsection (a)(2) of section 337. The
complaint further alleges violations of
section 337 by reason of trade secret
misappropriation, the threat or effect of
which is to destroy or substantially
injure an industry in the United States
or to prevent the establishment of such
an industry under section 337(a)(1)(A).
The Commission’s notice of
investigation named Sany Heavy
Industry Co., Ltd. of Changsha, China,
and Sany America, Inc. of Peachtree
City, Georgia (collectively ‘‘Sany’’) as
respondents. The Office of Unfair
Import Investigations (‘‘OUII’’) was also
named as a party.
On July 11, 2014, the ALJ issued his
final ID finding a violation of section
337 with respect to claims 1, 2, 5, 8, and
23–26 of the ’928 patent and
misappropriation of Trade Secret Nos. 1,
6, 14, and 15. The ALJ further found no
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violation of section 337 with respect to
claims 6, 10, and 11 of the ’928 patent,
claim 1 of the ’158 patent, and Trade
Secret Nos. 3 and 4.
On July 28, 2014, OUII, Manitowoc,
and Sany each filed petitions for review.
On August 5, 2014, the parties replied
to the respective petitions for review.
The Commission has determined to
review the ALJ’s findings with respect
to: (1) Importation of the accused
products; (2) infringement of the
asserted patents; (3) estoppel; (4) the
technical prong of the domestic industry
requirement; and (5) the asserted trade
secrets.
The parties are requested to brief their
positions on the issues under 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. Please provide any legal support for the
proposition that ‘‘sale for importation’’
requires that the article be constructed and
ready for use. In addressing this question,
please discuss whether the ‘‘original’’
UltraLift package was ever constructed and
whether the ‘‘original’’ UltraLift package was
modified to create the ‘‘redesigned’’ UltraLift
package.
2. Are separate agreements or acts
necessary to find that the original UltraLift
package and redesigned UltraLift package
were both sold for importation? Please
discuss the facts surrounding the individual
sales for importation of both the original and
redesigned UltraLift packages, including the
parties involved in the sale, when the sale
occurred, where the sale occurred, and what
the parties agreed was sold for importation.
3. Can there be a violation of section 337
when there is a ‘‘sale for importation,’’ with
no later act of importation? Can there be a
‘‘sale for importation’’ of ‘‘articles that
infringe’’ a patent claim, under section 337
(a)(1)(B)(i), without proof of direct
infringement in the United States? See
Certain Electronic Devices with Image
Processing Systems, Components Thereof,
and Associated Software, Inv. No. 337–TA–
724, Comm’n Op. (Dec. 1, 2011). Please
address this question in the context of both
method and apparatus claims.
4. Are the holdings, for example, in Certain
Apparatus for the Continuous Production of
Copper Rod, Inv. No. 337–TA–89, Comm’n
Op. (April 1981), Enercon GmBH v. Int’l
Trade Comm’n, 151 F. 3d 1376 (Fed. Cir.
1998), and Lang v. Pacific Marine, 895 F.2d
761 (Fed. Cir. 1990), still viable after the
Supreme Court’s decision in Limelight
Networks, Inc. v. Akamai Techs., Inc., 134
S.Ct. 2111 (2014), particularly with respect to
direct infringement as a necessary predicate
for indirect infringement?
5. Discuss whether the accused SCC8500
crane with the original UltraLift package
directly infringes asserted apparatus claims
23–26 of the ’928 patent, including whether
crane operation is required for a finding of
infringement. Please address each limitation
of the asserted apparatus claims.
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6. What evidence in the record, if any,
shows that the accused SCC8500 crane was
used to perform each step of the asserted
method claims? In what country, if any, was
each step of the asserted method claims
performed?
7. What evidence in the record, if any,
supports finding that there are no noninfringing uses of the accused products, for
asserted claims 6, 10, and 11 of the ’928
patent and claim 1 of the ’158 patent, when
the accused products are operated?
8. Did Sany waive its argument that Trade
Secret Nos. 1 and 6 are not protectable as
trade secrets based on email CX–0116C?
9. Under what circumstances does a third
party have a duty to refrain from disclosing
a trade secret? What are the consequences of
a trade secret being disseminated by a third
party? How extensive must the disclosure of
a trade secret by a 3rd party be in order to
prevent or destroy trade secret protection?
Please discuss the facts of this investigation
and the relevant case law in answering these
questions.
10. Are any of the asserted trade secrets
disclosed in U.S. Patent Application No.
2011/0031202 (‘‘the ’202 patent application’’)
published in February of 2011? If so, is
Manitowoc precluded from obtaining relief
on the trade secrets disclosed in the ’202
patent application?
11. Please discuss the relevant case law
that identifies how much specificity is
required to define the ‘‘metes and bounds’’ of
an asserted trade secret, focusing in
particular on asserted Trade Secret No. 3. Is
Manitowoc required to prove trade secret
protection for every possible combination of
elements of asserted Trade Secret No. 3?
12. Discuss whether asserted Trade Secret
No. 4 can be found to be independently
protectable as a trade secret if Trade Secret
No. 3 does not qualify for trade secret
protection.
13. Discuss whether Sany misappropriated
Trade Secret No. 3 and Trade Secret No. 4.
14. Discuss whether Sany can be held
liable for misappropriation of the asserted
trade secrets where Mr. Lanning, or other
former Manitowoc employees, disclosed
Manitowoc confidential information to Sany
within the scope of their employment. Please
address these issues within the context of the
theories of respondeat superior and agency
law.
15. Did Sany improperly acquire the
asserted trade secrets from former Manitowoc
employees?
16. What evidence is there that Sany
‘‘used’’ the elements of Trade Secret No. 15
to assist or accelerate Sany’s research and
development?
17. Please discuss with respect to each
trade secret allegation the appropriate length
of the remedy the Commission may impose
if the Commission finds a violation of section
337 for misappropriation of the asserted trade
secrets.
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
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Federal Register / Vol. 79, No. 186 / Thursday, September 25, 2014 / Notices
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more cease and desist orders that could
result in the respondent(s) 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.
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 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 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 Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843 (December 1994)
(Commission Opinion).
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. 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
persons 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 is
also requested to submit proposed
remedial orders for the Commission’s
consideration.
Complainant is also requested to state
the date that the ’928 and ’158 patents
expire 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
Wednesday, October 1, 2014. Reply
submissions must be filed no later than
the close of business on Wednesday,
October 8, 2014. No further submissions
on these issues will be permitted unless
otherwise ordered by the Commission.
The page limit for the parties’ initial
submissions on the questions posed by
the Commission is 125 pages. The
parties reply submissions, if any, are
limited to 75 pages.
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–887’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
secretary/fed_reg_notices/rules/
handbook_on_electronic_filing.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. A redacted nonconfidential version of the document
must also be filed simultaneously with
the any confidential filing. All nonconfidential 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: September 19, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014–22775 Filed 9–24–14; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Membership of the Senior Executive
Service Standing Performance Review
Boards
Department of Justice.
Notice of Department of
Justice’s standing members of the Senior
Executive Service Performance Review
Boards.
AGENCY:
ACTION:
Pursuant to the requirements
of 5 U.S.C. 4314(c)(4), the Department of
Justice announces the membership of its
2014 Senior Executive Service (SES)
Standing Performance Review Boards
(PRBs). The purpose of a PRB is to
provide fair and impartial review of SES
performance appraisals, bonus
recommendations and pay adjustments.
The PRBs will make recommendations
regarding the final performance ratings
to be assigned, SES bonuses and/or pay
adjustments to be awarded.
FOR FURTHER INFORMATION CONTACT:
Terence L. Cook, Director, Human
Resources, Justice Management
Division, Department of Justice,
Washington, DC 20530; (202) 514–4350.
SUMMARY:
Lee J. Lofthus,
Assistant Attorney General for
Administration.
2014 FEDERAL REGISTER
Name
Position title
Office of the Attorney General—OAG
RICHARDSON, MARGARET .............................................
MIZER, BENJAMIN ............................................................
PHILLIPS, CHANNING ......................................................
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CHIEF OF STAFF AND COUNSELOR.
COUNSELOR TO THE ATTORNEY GENERAL.
COUNSELOR TO THE ATTORNEY GENERAL.
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]]>Agencies
[Federal Register Volume 79, Number 186 (Thursday, September 25, 2014)]
[Notices]
[Pages 57566-57568]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22775]
=======================================================================
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-887]
Certain Crawler Cranes and Components Thereof; Commission's
Determination To Review in Part a Final Initial Determination Finding a
Violation of Section 337; Request for Written Submissions
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the final initial
determination (``ID'') issued by the presiding
[[Page 57567]]
administrative law judge (``ALJ'') on July 11, 2014, finding a
violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in
the above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-2737. 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 (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 this investigation
on July 17, 2013, based on a complaint filed by Manitowoc Cranes, LLC
(``Manitowoc'') of Manitowoc, Wisconsin. 78 FR 42800-01 (July 17,
2013). The complaint alleges violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), by reason of
infringement of U.S. Patent Nos. 7,546,928 (``the '928 patent'') and
7,967,158 (``the '158 patent'') (collectively ``the asserted
patents''), and that an industry in the United States exists or is in
the process of being established as required by subsection (a)(2) of
section 337. The complaint further alleges violations of section 337 by
reason of trade secret misappropriation, the threat or effect of which
is to destroy or substantially injure an industry in the United States
or to prevent the establishment of such an industry under section
337(a)(1)(A). The Commission's notice of investigation named Sany Heavy
Industry Co., Ltd. of Changsha, China, and Sany America, Inc. of
Peachtree City, Georgia (collectively ``Sany'') as respondents. The
Office of Unfair Import Investigations (``OUII'') was also named as a
party.
On July 11, 2014, the ALJ issued his final ID finding a violation
of section 337 with respect to claims 1, 2, 5, 8, and 23-26 of the '928
patent and misappropriation of Trade Secret Nos. 1, 6, 14, and 15. The
ALJ further found no violation of section 337 with respect to claims 6,
10, and 11 of the '928 patent, claim 1 of the '158 patent, and Trade
Secret Nos. 3 and 4.
On July 28, 2014, OUII, Manitowoc, and Sany each filed petitions
for review. On August 5, 2014, the parties replied to the respective
petitions for review. The Commission has determined to review the ALJ's
findings with respect to: (1) Importation of the accused products; (2)
infringement of the asserted patents; (3) estoppel; (4) the technical
prong of the domestic industry requirement; and (5) the asserted trade
secrets.
The parties are requested to brief their positions on the issues
under 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. Please provide any legal support for the proposition that
``sale for importation'' requires that the article be constructed
and ready for use. In addressing this question, please discuss
whether the ``original'' UltraLift package was ever constructed and
whether the ``original'' UltraLift package was modified to create
the ``redesigned'' UltraLift package.
2. Are separate agreements or acts necessary to find that the
original UltraLift package and redesigned UltraLift package were
both sold for importation? Please discuss the facts surrounding the
individual sales for importation of both the original and redesigned
UltraLift packages, including the parties involved in the sale, when
the sale occurred, where the sale occurred, and what the parties
agreed was sold for importation.
3. Can there be a violation of section 337 when there is a
``sale for importation,'' with no later act of importation? Can
there be a ``sale for importation'' of ``articles that infringe'' a
patent claim, under section 337 (a)(1)(B)(i), without proof of
direct infringement in the United States? See Certain Electronic
Devices with Image Processing Systems, Components Thereof, and
Associated Software, Inv. No. 337-TA-724, Comm'n Op. (Dec. 1, 2011).
Please address this question in the context of both method and
apparatus claims.
4. Are the holdings, for example, in Certain Apparatus for the
Continuous Production of Copper Rod, Inv. No. 337-TA-89, Comm'n Op.
(April 1981), Enercon GmBH v. Int'l Trade Comm'n, 151 F. 3d 1376
(Fed. Cir. 1998), and Lang v. Pacific Marine, 895 F.2d 761 (Fed.
Cir. 1990), still viable after the Supreme Court's decision in
Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S.Ct. 2111
(2014), particularly with respect to direct infringement as a
necessary predicate for indirect infringement?
5. Discuss whether the accused SCC8500 crane with the original
UltraLift package directly infringes asserted apparatus claims 23-26
of the '928 patent, including whether crane operation is required
for a finding of infringement. Please address each limitation of the
asserted apparatus claims.
6. What evidence in the record, if any, shows that the accused
SCC8500 crane was used to perform each step of the asserted method
claims? In what country, if any, was each step of the asserted
method claims performed?
7. What evidence in the record, if any, supports finding that
there are no non-infringing uses of the accused products, for
asserted claims 6, 10, and 11 of the '928 patent and claim 1 of the
'158 patent, when the accused products are operated?
8. Did Sany waive its argument that Trade Secret Nos. 1 and 6
are not protectable as trade secrets based on email CX-0116C?
9. Under what circumstances does a third party have a duty to
refrain from disclosing a trade secret? What are the consequences of
a trade secret being disseminated by a third party? How extensive
must the disclosure of a trade secret by a 3rd party be in order to
prevent or destroy trade secret protection? Please discuss the facts
of this investigation and the relevant case law in answering these
questions.
10. Are any of the asserted trade secrets disclosed in U.S.
Patent Application No. 2011/0031202 (``the '202 patent
application'') published in February of 2011? If so, is Manitowoc
precluded from obtaining relief on the trade secrets disclosed in
the '202 patent application?
11. Please discuss the relevant case law that identifies how
much specificity is required to define the ``metes and bounds'' of
an asserted trade secret, focusing in particular on asserted Trade
Secret No. 3. Is Manitowoc required to prove trade secret protection
for every possible combination of elements of asserted Trade Secret
No. 3?
12. Discuss whether asserted Trade Secret No. 4 can be found to
be independently protectable as a trade secret if Trade Secret No. 3
does not qualify for trade secret protection.
13. Discuss whether Sany misappropriated Trade Secret No. 3 and
Trade Secret No. 4.
14. Discuss whether Sany can be held liable for misappropriation
of the asserted trade secrets where Mr. Lanning, or other former
Manitowoc employees, disclosed Manitowoc confidential information to
Sany within the scope of their employment. Please address these
issues within the context of the theories of respondeat superior and
agency law.
15. Did Sany improperly acquire the asserted trade secrets from
former Manitowoc employees?
16. What evidence is there that Sany ``used'' the elements of
Trade Secret No. 15 to assist or accelerate Sany's research and
development?
17. Please discuss with respect to each trade secret allegation
the appropriate length of the remedy the Commission may impose if
the Commission finds a violation of section 337 for misappropriation
of the asserted trade secrets.
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
[[Page 57568]]
more cease and desist orders that could result in the respondent(s)
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. 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 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 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 Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843
(December 1994) (Commission Opinion).
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. 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 persons 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 is also requested to submit proposed
remedial orders for the Commission's consideration.
Complainant is also requested to state the date that the '928 and
'158 patents expire 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 Wednesday,
October 1, 2014. Reply submissions must be filed no later than the
close of business on Wednesday, October 8, 2014. No further submissions
on these issues will be permitted unless otherwise ordered by the
Commission. The page limit for the parties' initial submissions on the
questions posed by the Commission is 125 pages. The parties reply
submissions, if any, are limited to 75 pages.
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-887'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/
fedregnotices/rules/
handbookonelectronicfiling.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. A
redacted non-confidential version of the document must also be filed
simultaneously with the any confidential filing. 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: September 19, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-22775 Filed 9-24-14; 8:45 am]
BILLING CODE 7020-02-P
