Certain Lithium Metal Oxide Cathode Materials, Lithium-Ion Batteries for Power Tool Products Containing Same, and Power Tool Products With Lithium-Ion Batteries Containing Same; Commission Determination To Review in Part a Final Initial Determination; Deny Certain Motions; and Grant a Request for a Commission Hearing; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest and Bonding, 30548-30550 [2016-11563]
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30548
Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Notices
DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
[MMAA104000]
Dated: May 10, 2016.
Abigail Ross Hopper,
Director, Bureau of Ocean Energy
Management.
[FR Doc. 2016–11596 Filed 5–16–16; 8:45 am]
Notice on Outer Continental Shelf Oil
and Gas Lease Sales
BILLING CODE 4310–MR–P
Bureau of Ocean Energy
Management (BOEM), Interior.
ACTION: List of restricted joint bidders.
AGENCY:
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–951]
Pursuant to the joint bidding
provisions of 30 CFR 556.511, the
Director of the Bureau of Ocean Energy
Management is publishing a List of
Restricted Joint Bidders. Each entity
within one of the following groups is
restricted from bidding with any entity
in any of the other following groups at
Outer Continental Shelf oil and gas
lease sales to be held during the bidding
period May 1, 2016, through October 31,
2016. This List of Restricted Joint
Bidders will cover the period May 1,
2016, through October 31, 2016, and
replace the prior list published on
November 2, 2015, which covered the
period of November 1, 2015, through
April 30, 2016.
Group I
BP America Production Company
BP Exploration & Production Inc.
BP Exploration (Alaska) Inc.
Group II
Chevron Corporation
Chevron U.S.A. Inc.
Chevron Midcontinent, L.P.
Unocal Corporation
Union Oil Company of California
Pure Partners, L.P.
Group III
Eni Petroleum Co. Inc.
Eni Petroleum US LLC
Eni Oil US LLC
Eni Marketing Inc.
Eni BB Petroleum Inc.
Eni US Operating Co. Inc.
Eni BB Pipeline LLC
Group IV
Exxon Mobil Corporation
ExxonMobil Exploration Company
Group V
Petroleo Brasileiro S.A.
Petrobras America Inc.
Group VI
Shell Oil Company
Shell Offshore Inc.
SWEPI LP
Shell Frontier Oil & Gas Inc.
SOI Finance Inc.
Shell Gulf of Mexico Inc.
Group VII
Statoil ASA
Statoil Gulf of Mexico LLC
Statoil USA E&P Inc.
Statoil Gulf Properties Inc.
Group VIII
Total E&P USA, Inc.
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SUMMARY:
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Certain Lithium Metal Oxide Cathode
Materials, Lithium-Ion Batteries for
Power Tool Products Containing
Same, and Power Tool Products With
Lithium-Ion Batteries Containing
Same; Commission Determination To
Review in Part a Final Initial
Determination; Deny Certain Motions;
and Grant a Request for a Commission
Hearing; Request for Written
Submissions on the Issues Under
Review and on Remedy, the Public
Interest and Bonding
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
administrative law judge (‘‘ALJ’’) on
February 29, 2016, finding a violation of
section 337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337), as to the
asserted patent claims in this
investigation. The Commission has also
determined to deny motions for
intervention and to reopen the record.
Pursuant to Commission Rule 210.45
(19 CFR 210.45), Respondents’ request
for a Commission hearing has been
granted. A notice providing the scope
and details of the hearing will be
forthcoming.
FOR FURTHER INFORMATION CONTACT:
Panyin A. Hughes, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202–
205–3042. 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
SUMMARY:
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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 March 30, 2015, based on a
complaint filed by BASF Corporation of
Florham Park, New Jersey and UChicago
Argonne LLC of Lemont, Illinois
(collectively, ‘‘Complainants’’). 80 FR
16696 (Mar. 30, 2015). The complaint
alleges violations of section 337 of the
Tariff Act of 1930, as amended (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 lithium
metal oxide cathode materials, lithiumion batteries for power tool products
containing same, and power tool
products with lithium-ion batteries
containing same by reason of
infringement of one or more of claims
1–4, 7, 13, and 14 of U.S. Patent No.
6,677,082 (‘‘the ’082 patent’’) and claims
1–4, 8, 9, and 17 of U.S. Patent No.
6,680,143 (‘‘the ’143 patent’’). Id. The
notice of investigation named the
following respondents: Umicore N.V. of
Brussels, Belgium; Umicore USA Inc. of
Raleigh, North Carolina (collectively,
‘‘Umicore’’); Makita Corporation of
Anjo, Japan; Makita Corporation of
America of Buford, Georgia; and Makita
U.S.A. Inc. of La Mirada, California
(collectively, ‘‘Makita’’). Id. The Office
of Unfair Import Investigations is a party
to the investigation.
On November 5, 2015, the ALJ
granted a joint motion by Complainants
and Makita to terminate the
investigation as to Makita based upon
settlement. See Order No. 32 (Nov. 5,
2015). The Commission determined not
to review. See Notice (Nov. 23, 2015).
On December 1, 2015, the ALJ granted
an unopposed motion by Complainants
to terminate the investigation as to
claim 8 of the ’082 patent. See Order No.
35 (Dec. 1, 2015). The Commission
determined not to review Order No. 35.
See Notice (Dec. 22, 2015).
On February 29, 2016, the ALJ issued
his final ID, finding a violation of
section 337 by Umicore in connection
with claims 1–4, 7, 13, and 14 of the
’082 patent and claims 1–4, 8, 9, and 17
of the ’143 patent. Specifically, the ID
found that the Commission has subject
matter jurisdiction, in rem jurisdiction
over the accused products, and in
personam jurisdiction over Umicore. ID
at 10–11. The ID found that
Complainants satisfied the importation
requirement of section 337 (19 U.S.C.
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1337(a)(1)(B)). Id. at 9–10. The ID found
that the accused products directly
infringe asserted claims 1–4, 7, 13, and
14 of the ’082 patent; and asserted
claims 1–4, 8, 9, and 17 of the ’143
patent, and that Umicore contributorily
infringes those claims. See ID at 65–71,
83–85. The ID, however, found that
Complainants failed to show that
Umicore induces infringement of the
asserted claims. Id. at 79–83. The ID
further found that Umicore failed to
establish that the asserted claims of the
’082 or ’143 patents are invalid for lack
of enablement or incorrect inventorship.
ID at 118–20. The ID also found that
Umicore’s laches defense fails as a
matter of law (ID at 122–124) and also
fails on the merits (ID at 124–126).
Finally, the ID found that Complainants
established the existence of a domestic
industry that practices the asserted
patents under 19 U.S.C. 1337(a)(2). See
ID at 18, 24.
On March 14, 2016, Umicore filed a
petition for review of the ID. Also on
March 14, 2016, the Commission
investigative attorney (‘‘IA’’) petitioned
for review of the ID’s finding that a
laches defense fails as a matter of law
in section 337 investigations. Further on
March 14, 2016, Complainants filed a
contingent petition for review of the ID.
That same day, Umicore filed a motion
under Commission Rules 210.15(a)(2)
and 210.38(a) (19 CFR 210.15(a)(2) and
210.38(a)), for the Commission to
reopen the record in this investigation
to admit a paper published on October
29, 2015, and a press release issued that
day (collectively, ‘‘documents’’). On
March 22, 2016, the parties filed
responses to the petitions for review. On
March 24, 2016, Complainants and the
IA filed oppositions to Umicore’s
motion to reopen the record. On April
5, 2016, Umicore moved for leave to file
a reply. The Commission has
determined to grant Umicore’s motion
for leave to file a reply.
On April 8, 2016, 3M Corporation
(‘‘3M’’) filed a motion to intervene
under Commission Rule 210.19. 3M
requests that the Commission grant it
‘‘with full participation rights in this
Investigation in order to protect its
significant interests in the accused
materials.’’
Having examined the record of this
investigation, including the final ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the final ID in part.
Specifically, the Commission has
determined to review (1) the ID’s
contributory and induced infringement
findings; (2) the ID’s domestic industry
findings under 19 U.S.C. 1337(a)(3)(C);
and (3) the ID’s findings on laches.
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The Commission has determined to
deny Umicore’s motion to reopen the
record to admit the documents. The
Commission notes that the documents
that Umicore seeks to introduce into
evidence were available as of October
29, 2015, the last day of the hearing
before the ALJ. Thus, Umicore could not
have presented them prior to the
hearing. Nothing, however, prevented
Umicore from filing a timely motion
under Commission Rule 210.42(g)
requesting the ALJ to reopen the record
and consider the documents prior to
issuance of the final ID. The
Commission notes that the final ID did
not issue until February 29, 2016, four
months after the documents were
published. Yet, Umicore made no
attempt to request the ALJ to consider
the documents in the final ID. Thus, the
Commission has determined to deny
Umicore’s motion to reopen the record
at this late stage.
The Commission has determined to
deny 3M’s motion to intervene. The
Commission notes that 3M filed a public
interest statement on April 8, 2016,
making substantially the same
arguments it makes in its motion to
intervene. The Commission will
consider 3M’s comments in considering
remedy, bonding and the public interest
this investigation if a violation of
section 337 is found.
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
interested in responses to the following
questions:
1. Please discuss whether laches should be
an available defense in a section 337
investigation. In your response, please
address how SCA Hygiene Products v. First
Quality Baby Prod., 807 F.3d 1311 (Fed. Cir.
2015), cert. granted, 578 U.S.ll(May 2,
2016), applies and any statutory support for
your position.
2. Please discuss whether a good faith
belief of non-infringement negates a
contributory infringement finding, where the
accused products have no substantial noninfringing uses. In your response, please
address the impact of the following cases:
Commil USA, LLC v. Cisco Sys., Inc., 135 S.
Ct. 1920 (2015); Global-Tech Appliances, Inc.
v. SEB S.A., 131 S. Ct. 2060, 2068 (2011);
Spansion, Inc. v. International Trade
Comm’n, 629 F.3d 1331, 1359 (Fed. Cir.
2010); Golden Blount, Inc. v. Robert H.
Peterson Co., 438 F.3d 1354 (Fed. Cir. 2006).
3. Please point to evidence (or lack of
evidence) showing that Umicore had a good
faith belief of non-infringement, including
evidence showing that Umicore relied upon
that belief.
4. Please discuss in detail the extent to
which an exclusion order would affect
research and development efforts with
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30549
respect to lithium ion batteries by
universities and private companies. See
Statement of Umicore S.A. And Umicore
USA Inc. Regarding the Public Interest at 1
(Apr. 4, 2016). In your response, identify
each university and private company
engaged in such research and development
efforts.
5. Please provide a detailed discussion of
the record evidence as to whether Umicore’s
NMC material is uniquely suited for specific
applications in energy saving technology,
cutting-edge research and development,
including identifying those specific areas and
volumes involved and whether any other
material can be used in such applications.
See Statement of Umicore S.A. And Umicore
USA Inc. Regarding the Public Interest
at 1–2.
6. Please discuss whether each of the
research companies and universities
currently using Umicore NMC material (See
Statement of Umicore S.A. And Umicore
USA Inc. Regarding the Public Interest at
1–2) may also use materials from other
sources for each of their specific research
projects.
7. Please discuss whether NMC materials
produced by other suppliers have lower
performance characteristics and consistency.
See Statement of Umicore S.A. And Umicore
USA Inc. Regarding the Public Interest
at 2–3.
8. Please discuss how the Umicore NMC
material relates to 3M’s research and whether
other suppliers provide comparable material
that 3M can use in its research. See 3M
Company’s Comments on the Effect on the
Public Interest of the Proposed Remedy in
the Recommended Determination (Apr. 8,
2016).
9. Please identify the suppliers of NMC to
the U.S. market and the percentage of the
market held by each.
Pursuant to Commission rule 210.45
(19 CFR 210.45), Umicore’s request for
a Commission hearing has been granted.
A notice providing the scope and details
of the hearing will be forthcoming.
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 the 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 Certain Devices for
Connecting Computers via Telephone
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30550
Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Notices
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 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
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. Complainants
and the IA are requested to submit
proposed remedial orders for the
Commission’s consideration.
Complainants are also requested to state
the date that the patents expire and the
HTSUS numbers under which the
accused products are imported.
Complainants are further requested to
supply the names of known importers of
the Umicore products at issue in this
investigation. The written submissions
and proposed remedial orders must be
filed no later than close of business on
May 23, 2016. Reply submissions must
be filed no later than the close of
business on June 2, 2016. Opening
submissions are limited to 50 pages.
Reply submissions are limited to 25
pages. Such submissions should address
the ALJ’s recommended determinations
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on remedy and bonding. 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
electronically on or before the deadlines
stated above and submit eight 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–951’’) 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
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).
Final Judgment, Stipulation, and
Competitive Impact Statement have
been filed with the United States
District Court for the District of
Columbia in United States of America v.
Charter Communications, Inc., et al.,
Civil Action No. 16–cv–00759. On April
25, 2016, the United States filed a
Complaint alleging that Charter
Communications, Inc.’s proposed
acquisitions of Time Warner Cable Inc.
and Bright House Networks, LLC would
violate Section 7 of the Clayton Act, 15
U.S.C. 18. The proposed Final
Judgment, filed at the same time as the
Complaint, forbids the merged company
from engaging in certain conduct that
could make it more difficult for
competing online video distributors
(OVDs) to obtain programming content.
Copies of the Complaint, proposed
Final Judgment, and Competitive Impact
Statement are available for inspection
on the Antitrust Division’s Web site at
https://www.justice.gov/atr and at the
Office of the Clerk of the United States
District Court for the District of
Columbia. Copies of these materials may
be obtained from the Antitrust Division
upon request and payment of the
copying fee set by Department of Justice
regulations.
Public comment is invited within 60
days of the date of this notice. Such
comments, including the name of the
submitter, and responses thereto, will be
posted on the Antitrust Division’s Web
site, filed with the Court, and, under
certain circumstances, published in the
Federal Register. Comments should be
directed to Scott A. Scheele, Chief,
Telecommunications and Media
Enforcement Section, Antitrust
Division, Department of Justice, 450
Fifth Street NW., Suite 7000,
Washington, DC 20530 (telephone: 202–
616–5924).
By order of the Commission.
Issued: May 11, 2016.
Lisa R. Barton,
Secretary to the Commission.
Patricia A. Brink,
Director of Civil Enforcement.
[FR Doc. 2016–11563 Filed 5–16–16; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Charter
Communications, Inc., et al.; Proposed
Final Judgment and Competitive
Impact Statement
Notice is hereby given pursuant to the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)–(h), that a proposed
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America, Department of
Justice, Antitrust Division, 450 5th Street
N.W., Suite 7000, Washington, DC, 20530,
Plaintiff, v., Charter Communications, Inc.,
400 Atlantic Street, Stamford, CT 06901,
Time Warner Cable Inc., 60 Columbus Circle,
New York, NY 10023, Advance/Newhouse
Partnership, 5823 Widewaters Parkway, East
Syracuse, NY 13057, and, Bright House
Networks, LLC, 5823 Widewaters Parkway,
East Syracuse, NY 13057, Defendants.
Case No.: 1:16–cv–00759
Judge: Royce C. Lamberth
Filed: 04/25/2016
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]]>Agencies
[Federal Register Volume 81, Number 95 (Tuesday, May 17, 2016)]
[Notices]
[Pages 30548-30550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11563]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-951]
Certain Lithium Metal Oxide Cathode Materials, Lithium-Ion
Batteries for Power Tool Products Containing Same, and Power Tool
Products With Lithium-Ion Batteries Containing Same; Commission
Determination To Review in Part a Final Initial Determination; Deny
Certain Motions; and Grant a Request for a Commission Hearing; Request
for Written Submissions on the Issues Under Review and on Remedy, the
Public Interest and Bonding
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 administrative law judge
(``ALJ'') on February 29, 2016, finding a violation of section 337 of
the Tariff Act of 1930, as amended (19 U.S.C. 1337), as to the asserted
patent claims in this investigation. The Commission has also determined
to deny motions for intervention and to reopen the record. Pursuant to
Commission Rule 210.45 (19 CFR 210.45), Respondents' request for a
Commission hearing has been granted. A notice providing the scope and
details of the hearing will be forthcoming.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202-205-3042. 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 March 30, 2015, based on a complaint filed by BASF Corporation of
Florham Park, New Jersey and UChicago Argonne LLC of Lemont, Illinois
(collectively, ``Complainants''). 80 FR 16696 (Mar. 30, 2015). The
complaint alleges violations of section 337 of the Tariff Act of 1930,
as amended (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 lithium metal oxide cathode materials, lithium-
ion batteries for power tool products containing same, and power tool
products with lithium-ion batteries containing same by reason of
infringement of one or more of claims 1-4, 7, 13, and 14 of U.S. Patent
No. 6,677,082 (``the '082 patent'') and claims 1-4, 8, 9, and 17 of
U.S. Patent No. 6,680,143 (``the '143 patent''). Id. The notice of
investigation named the following respondents: Umicore N.V. of
Brussels, Belgium; Umicore USA Inc. of Raleigh, North Carolina
(collectively, ``Umicore''); Makita Corporation of Anjo, Japan; Makita
Corporation of America of Buford, Georgia; and Makita U.S.A. Inc. of La
Mirada, California (collectively, ``Makita''). Id. The Office of Unfair
Import Investigations is a party to the investigation.
On November 5, 2015, the ALJ granted a joint motion by Complainants
and Makita to terminate the investigation as to Makita based upon
settlement. See Order No. 32 (Nov. 5, 2015). The Commission determined
not to review. See Notice (Nov. 23, 2015).
On December 1, 2015, the ALJ granted an unopposed motion by
Complainants to terminate the investigation as to claim 8 of the '082
patent. See Order No. 35 (Dec. 1, 2015). The Commission determined not
to review Order No. 35. See Notice (Dec. 22, 2015).
On February 29, 2016, the ALJ issued his final ID, finding a
violation of section 337 by Umicore in connection with claims 1-4, 7,
13, and 14 of the '082 patent and claims 1-4, 8, 9, and 17 of the '143
patent. Specifically, the ID found that the Commission has subject
matter jurisdiction, in rem jurisdiction over the accused products, and
in personam jurisdiction over Umicore. ID at 10-11. The ID found that
Complainants satisfied the importation requirement of section 337 (19
U.S.C.
[[Page 30549]]
1337(a)(1)(B)). Id. at 9-10. The ID found that the accused products
directly infringe asserted claims 1-4, 7, 13, and 14 of the '082
patent; and asserted claims 1-4, 8, 9, and 17 of the '143 patent, and
that Umicore contributorily infringes those claims. See ID at 65-71,
83-85. The ID, however, found that Complainants failed to show that
Umicore induces infringement of the asserted claims. Id. at 79-83. The
ID further found that Umicore failed to establish that the asserted
claims of the '082 or '143 patents are invalid for lack of enablement
or incorrect inventorship. ID at 118-20. The ID also found that
Umicore's laches defense fails as a matter of law (ID at 122-124) and
also fails on the merits (ID at 124-126). Finally, the ID found that
Complainants established the existence of a domestic industry that
practices the asserted patents under 19 U.S.C. 1337(a)(2). See ID at
18, 24.
On March 14, 2016, Umicore filed a petition for review of the ID.
Also on March 14, 2016, the Commission investigative attorney (``IA'')
petitioned for review of the ID's finding that a laches defense fails
as a matter of law in section 337 investigations. Further on March 14,
2016, Complainants filed a contingent petition for review of the ID.
That same day, Umicore filed a motion under Commission Rules
210.15(a)(2) and 210.38(a) (19 CFR 210.15(a)(2) and 210.38(a)), for the
Commission to reopen the record in this investigation to admit a paper
published on October 29, 2015, and a press release issued that day
(collectively, ``documents''). On March 22, 2016, the parties filed
responses to the petitions for review. On March 24, 2016, Complainants
and the IA filed oppositions to Umicore's motion to reopen the record.
On April 5, 2016, Umicore moved for leave to file a reply. The
Commission has determined to grant Umicore's motion for leave to file a
reply.
On April 8, 2016, 3M Corporation (``3M'') filed a motion to
intervene under Commission Rule 210.19. 3M requests that the Commission
grant it ``with full participation rights in this Investigation in
order to protect its significant interests in the accused materials.''
Having examined the record of this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID in part. Specifically,
the Commission has determined to review (1) the ID's contributory and
induced infringement findings; (2) the ID's domestic industry findings
under 19 U.S.C. 1337(a)(3)(C); and (3) the ID's findings on laches.
The Commission has determined to deny Umicore's motion to reopen
the record to admit the documents. The Commission notes that the
documents that Umicore seeks to introduce into evidence were available
as of October 29, 2015, the last day of the hearing before the ALJ.
Thus, Umicore could not have presented them prior to the hearing.
Nothing, however, prevented Umicore from filing a timely motion under
Commission Rule 210.42(g) requesting the ALJ to reopen the record and
consider the documents prior to issuance of the final ID. The
Commission notes that the final ID did not issue until February 29,
2016, four months after the documents were published. Yet, Umicore made
no attempt to request the ALJ to consider the documents in the final
ID. Thus, the Commission has determined to deny Umicore's motion to
reopen the record at this late stage.
The Commission has determined to deny 3M's motion to intervene. The
Commission notes that 3M filed a public interest statement on April 8,
2016, making substantially the same arguments it makes in its motion to
intervene. The Commission will consider 3M's comments in considering
remedy, bonding and the public interest this investigation if a
violation of section 337 is found.
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 interested in
responses to the following questions:
1. Please discuss whether laches should be an available defense
in a section 337 investigation. In your response, please address how
SCA Hygiene Products v. First Quality Baby Prod., 807 F.3d 1311
(Fed. Cir. 2015), cert. granted, 578 U.S.__(May 2, 2016), applies
and any statutory support for your position.
2. Please discuss whether a good faith belief of non-
infringement negates a contributory infringement finding, where the
accused products have no substantial non-infringing uses. In your
response, please address the impact of the following cases: Commil
USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920 (2015); Global-Tech
Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068 (2011);
Spansion, Inc. v. International Trade Comm'n, 629 F.3d 1331, 1359
(Fed. Cir. 2010); Golden Blount, Inc. v. Robert H. Peterson Co., 438
F.3d 1354 (Fed. Cir. 2006).
3. Please point to evidence (or lack of evidence) showing that
Umicore had a good faith belief of non-infringement, including
evidence showing that Umicore relied upon that belief.
4. Please discuss in detail the extent to which an exclusion
order would affect research and development efforts with respect to
lithium ion batteries by universities and private companies. See
Statement of Umicore S.A. And Umicore USA Inc. Regarding the Public
Interest at 1 (Apr. 4, 2016). In your response, identify each
university and private company engaged in such research and
development efforts.
5. Please provide a detailed discussion of the record evidence
as to whether Umicore's NMC material is uniquely suited for specific
applications in energy saving technology, cutting-edge research and
development, including identifying those specific areas and volumes
involved and whether any other material can be used in such
applications. See Statement of Umicore S.A. And Umicore USA Inc.
Regarding the Public Interest at 1-2.
6. Please discuss whether each of the research companies and
universities currently using Umicore NMC material (See Statement of
Umicore S.A. And Umicore USA Inc. Regarding the Public Interest at
1-2) may also use materials from other sources for each of their
specific research projects.
7. Please discuss whether NMC materials produced by other
suppliers have lower performance characteristics and consistency.
See Statement of Umicore S.A. And Umicore USA Inc. Regarding the
Public Interest at 2-3.
8. Please discuss how the Umicore NMC material relates to 3M's
research and whether other suppliers provide comparable material
that 3M can use in its research. See 3M Company's Comments on the
Effect on the Public Interest of the Proposed Remedy in the
Recommended Determination (Apr. 8, 2016).
9. Please identify the suppliers of NMC to the U.S. market and
the percentage of the market held by each.
Pursuant to Commission rule 210.45 (19 CFR 210.45), Umicore's
request for a Commission hearing has been granted. A notice providing
the scope and details of the hearing will be forthcoming.
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 the
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 Certain Devices for Connecting Computers via Telephone
[[Page 30550]]
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 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 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. Complainants and the IA are requested to submit
proposed remedial orders for the Commission's consideration.
Complainants are also requested to state the date that the patents
expire and the HTSUS numbers under which the accused products are
imported. Complainants are further requested to supply the names of
known importers of the Umicore products at issue in this investigation.
The written submissions and proposed remedial orders must be filed no
later than close of business on May 23, 2016. Reply submissions must be
filed no later than the close of business on June 2, 2016. Opening
submissions are limited to 50 pages. Reply submissions are limited to
25 pages. Such submissions should address the ALJ's recommended
determinations on remedy and bonding. 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
electronically on or before the deadlines stated above and submit eight
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-951'') 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 non-confidential version of the document must also be filed
simultaneously with 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: May 11, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-11563 Filed 5-16-16; 8:45 am]
BILLING CODE 7020-02-P
