Certain Composite Aerogel Insulation Materials and Methods for Manufacturing the Same; Commission Decision To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions, 57611-57613 [2017-26238]
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Federal Register / Vol. 82, No. 233 / Wednesday, December 6, 2017 / Notices
Hawaiian organizations stated in this
notice may proceed.
DATES: Lineal descendants or
representatives of any Indian Tribe or
Native Hawaiian organization not
identified in this notice that wish to
request transfer of control of these
human remains should submit a written
request with information in support of
the request to the Chugach National
Forest at the address in this notice by
January 5, 2018.
ADDRESSES: Terri Marceron, Chugach
National Forest, 161 East 1st Avenue,
Door 8, Anchorage, AK 99501,
telephone (907) 743–9525, email
tmarceron@fs.fed.us.
SUPPLEMENTARY INFORMATION: Notice is
here given in accordance with the
Native American Graves Protection and
Repatriation Act (NAGPRA), 25 U.S.C.
3003, of the completion of an inventory
of human remains under the control of
the Chugach National Forest,
Anchorage, AK. The human remains
were removed from Crafton Island, AK.
This notice is published as part of the
National Park Service’s administrative
responsibilities under NAGPRA, 25
U.S.C. 3003(d)(3). The determinations in
this notice are the sole responsibility of
the museum, institution, or Federal
agency that has control of the Native
American human remains. The National
Park Service is not responsible for the
determinations in this notice.
1930’s. De Laguna (1956) reports that
caves in the vicinity had been looted as
early as 1934. Historical documents,
excavation records, and archeological
evidence indicate occupation sites in
this area are pre-contact Chugach, and
that it has been the traditional burial
grounds of the Chugach people since
pre-contact times. The present-day
Indian Tribes represented at the Native
Village of Chenega (aka Chanega) and
the Native Village of Tatitlek descended
from the earlier Chugach at Crafton
Island. Additionally, the Native Village
of Eyak (Cordova) may have had an
association at Crafton Island.
Consultation
Additional Requestors and Disposition
A detailed assessment of the human
remains was made by the Chugach
National Forest professional staff in
consultation with representatives of the
Native Village of Chenega (aka
Chanega), Native Village of Eyak
(Cordova), and Native Village of
Tatitlek, and representatives of the
Chugach Alaska Corporation, which is
not an Indian Tribe.
Lineal descendants or representatives
of any Indian Tribe or Native Hawaiian
organization not identified in this notice
that wish to request transfer of control
of these human remains should submit
a written request with information in
support of the request to Terri
Marceron, Chugach National Forest, 161
East 1st Avenue, Door 8, Anchorage, AK
99501, telephone (907) 743–9525, email
tmarceron@fs.fed.us, by January 5, 2018.
After that date, if no additional
requestors have come forward, transfer
of control of the human remains to the
Native Village of Eyak (Cordova), the
Native Village of Chenega (aka
Chanega), and the Native Village of
Tatitlek may proceed. By signed
delegated authority, and on behalf of the
Native Village of Eyak, the Native
Village of Chenega, and the Native
Village of Tatitlek, the Chugach Alaska
Corporation will accept physical
custody of the human remains.
The USDA Forest Service, Chugach
National Forest, is responsible for
notifying the Native Village of Chenega
(aka Chanega), Native Village of Eyak
(Cordova), and Native Village of
Tatitlek, and the Chugach Alaska
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History and Description of the Remains
In 2005, as part of an Archaeological
Resources Protection Act (ARPA)
incident, Chugach National Forest Law
Enforcement staff seized human remains
representing, at minimum, one
individual, at a cabin on Peak Island,
AK. According to case records, the
person claiming ownership of the
human remains stated that they had
been collected from a cave on Crafton
Island, in Prince William Sound circa
1958. Based on size and shape, these
human remains likely belong to a
female. No known individual was
identified. No associated funerary
objects are present.
Crafton Island is in an area that was
extensively investigated in the early
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Determinations Made by the USDA
Forest Service, Chugach National
Forest
Officials of the USDA Forest Service,
Chugach National Forest have
determined that:
• Pursuant to 25 U.S.C. 3001(9), the
human remains described in this notice
represent the physical remains of one
individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there
is a relationship of shared group
identity that can be reasonably traced
between the Native American human
remains and contemporary communities
represented by the Native Village of
Chenega (aka Chanega), Native Village
of Eyak (Cordova), and Native Village of
Tatitlek.
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Corporation that this notice has been
published.
Dated: September 20, 2017.
Melanie O’Brien,
Manager, National NAGPRA Program.
[FR Doc. 2017–26287 Filed 12–5–17; 8:45 am]
BILLING CODE 4312–52–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1003]
Certain Composite Aerogel Insulation
Materials and Methods for
Manufacturing the Same; Commission
Decision 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 presiding administrative law
judge’s (‘‘ALJ’’) final initial
determination (‘‘ID’’) issued on
September 29, 2017, finding a violation
of section 337 of the Tariff Act of 1930,
as amended, in the above-captioned
investigation.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Cathy Chen, Esq., Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
205–2392. Copies of non-confidential
documents filed in connection with this
investigation are or will be available for
inspection during official business
hours (8:45 a.m. to 5:15 p.m.) in the
Office of the Secretary, U.S.
International Trade Commission, 500 E
Street SW., Washington, DC 20436,
telephone (202) 205–2000. General
information concerning the Commission
may also be obtained by accessing its
Internet server at https://www.usitc.gov.
The public record for this investigation
may be viewed on the Commission’s
electronic docket (EDIS) at https://
edis.usitc.gov. Hearing-impaired
persons are advised that information on
this matter can be obtained by
contacting the Commission’s TDD
terminal on (202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on June 8, 2016, based on a complaint
filed by Aspen Aerogels, Inc. of
Northborough, Massachusetts
(‘‘Aspen’’). 81 FR 36955–956 (Jun. 8,
2016). The complaint alleges violations
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Federal Register / Vol. 82, No. 233 / Wednesday, December 6, 2017 / Notices
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 composite aerogel insulation
materials and methods for
manufacturing the same by reason of
infringement of certain claims of U.S.
Patent No. 7,399,439 (‘‘the ’439 patent’’);
U.S. Patent No. 9,181,486 (‘‘the ’486
patent’’); U.S. Patent No. 7,078,359 (‘‘the
’359 patent’’); U.S. Patent No. 6,989,123
(‘‘the ’123 patent’’); and U.S. Patent No.
7,780,890 (‘‘the ’890 patent’’). The
complaint further alleges that an
industry in the United States exists as
required by 19 U.S.C. 1337(a)(2). The
notice of investigation named Nano
Tech Co., Ltd. of Zhejiang, China
(‘‘Nano’’), and Guangdong Alison HiTech Co., Ltd. of Guangzhou, China
(‘‘Alison’’), as respondents. The Office
of Unfair Import Investigations (‘‘OUII’’)
is also a party in this investigation.
All asserted claims of the ’439 patent
and the ’486 patent and certain asserted
claims of the ’359 have been terminated
from the investigation. See Comm’n
Notice (Nov. 2, 2016); Comm’n Notice
(Feb. 9, 2017). Only claims 15–17, and
19 of the ’123 patent; claims 1, 5, 7, 9,
12, 15, and 16 of the ’359 patent; and
claims 11–13, 15, 17–19, and 21 of the
’890 patent (‘‘the Asserted Claims’’)
remain in the investigation.
On November 15, 2016, the ALJ
issued Order No. 19, granting Aspen’s
motion for summary determination that
the economic prong of the domestic
industry requirement has been satisfied
under section 337(a)(3)(A) and (B). The
Commission determined to review in
part Order No. 19. See Comm’n Notice
(Dec. 7, 2016). On review, the
Commission affirmed with modification
the summary determination that Aspen
satisfies the economic prong of the
domestic industry requirement. See id.
at 1–2.
On September 29, 2017, the ALJ
issued the final ID in this investigation,
finding a violation of section 337 by
Respondents Alison and Nano in
connection with claims 1, 5, 7, and 9 of
the ’359 patent; claims 15–17, and 19 of
the ’123 patent; and claims 11–13, 15,
17–19, and 21 of the ’890 patent. The ID
also finds a violation of section 337 by
Respondent Nano in connection with
claims 12, 15, and 16 of the ’359 patent.
In addition, the ID finds that Aspen has
shown that its domestic industry
products satisfy the technical prong of
the domestic industry requirement for
the Asserted Patents. The ID further
finds that Respondents have not shown
that the Asserted Claims are invalid.
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The ID also contains the ALJ’s
recommended determination on remedy
and bonding. The ALJ recommended
that the appropriate remedy is a limited
exclusion order with a certification
provision prohibiting the entry of
certain composite aerogel insulation
materials manufactured abroad by or on
behalf of Respondents Alison and Nano
that infringe certain claims of the ’359
patent, and/or that are manufactured
using certain claimed methods of the
’123 patent and the ’890 patent.
On October 16, 2017, Respondents
and OUII each filed a timely petition for
review of the final ID. Respondents and
OUII challenge certain of the ID’s
findings with respect to the validity of
the Asserted Claims and the ID’s
findings with respect to claim 5 of the
’359 patent. Respondent Alison
separately challenges the ID’s finding of
infringement with respect to claim 9 of
the ’359 patent. That same day, Aspen
filed a contingent petition for review of
the final ID, challenging the ALJ’s
construction of two claim limitations in
the ’359 patent. On October 24, 2017,
the parties filed timely responses to the
petitions for review. On October 31,
2017, the parties filed their public
interest comments pursuant to
Commission Rule 210.50(a)(4).
Having examined the record of this
investigation, including the ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the ID in part. Specifically,
with respect to the ’359 patent, the
Commission has determined to review
the ALJ’s construction of the ‘‘lofty
fibrous batting’’ limitation in claim 1 of
the ’359 patent. The Commission’s
review of the ‘‘lofty fibrous batting’’
limitation does not include the ID’s
finding that Respondents have not
proven that the term is invalid for
indefiniteness. The Commission has
also determined to review the ALJ’s
constructions of the additional
limitations in claims 5 and 9, and the
‘‘total surface area of that cross section’’
limitation of claim 12 of the ’359 patent,
and the ID’s associated findings on
infringement and the technical prong of
the domestic industry requirement with
respect to those claims and claims 15
and 16 of the ’359 patent. In addition,
the Commission has determined to
review the ID’s findings that the
asserted claims of the ’359 patent are
not invalid in view of Ramamurthi by
itself or in combination with other prior
art. With respect to the ’123 and the ’890
patents, the Commission has
determined to review the ID’s finding
that claim 15 of the ’123 patent and
claims 11–13, 15, 17, and 21–23 of the
’890 patent are not obvious in view of
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Ramamurthi and either Uchida or Yada.
The Commission has determined not to
review the remaining issues decided in
the ID.
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 address the proper scope of
claim 9 of the ’359 patent and, in
particular, the ‘‘about 1 to 20%’’
limitation. Your response should be
limited to the evidence in the record,
including a discussion of relevant
statements, if any, made in the
prosecution history.
2. With reference to question one,
please address whether Respondent
Alison’s accused products infringe
claim 9 of the ’359 patent under the
proper construction of the ‘‘about 1 to
20%’’ limitation.
3. With reference to question one,
please discuss whether Ramamurthi
anticipates the limitation ‘‘the dopant is
present in an amount of about 1 to 20%
by weight of the total weight of the
composite’’ in claim 9 of the ’359
patent.
4. Please address whether the
Commission should adopt Dr. Gnade’s
interpretation or Dr. Leventis’
interpretation of the ‘‘total surface area
of that cross section’’ limitation in claim
12 of the ’359 patent. Your response
should be limited to the evidence in the
record, including a discussion of
relevant statements, if any, made in the
prosecution history.
5. With reference to question four,
please address whether Respondents’
accused products and Aspen’s domestic
industry products meet the limitation
‘‘where the batting is sufficiently lofty
that the cross-sectional area of the fibers
of the batting visible in the cross-section
of the composite is less than 10% of the
total surface area of that cross section’’
under both Dr. Gnade’s interpretation
and Dr. Leventis’ interpretation of the
scope of claim 12 of the ’359 patent.
6. With reference to question four,
please discuss whether Ramamurthi
anticipates the limitation ‘‘the crosssectional area of the fibers of the batting
visible in the cross-section of the
composite is less than 10% of the total
surface area of that cross section’’ in
claim 12 of the ’359 patent.
7. Please address Aspen’s contention
in its combined response (at 82–84) that
Respondents’ petitions for review
presents new arguments and new
evidence concerning Uchida and Yada
that they failed to raise in their posthearing briefs.
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Federal Register / Vol. 82, No. 233 / Wednesday, December 6, 2017 / Notices
The parties have been invited to brief
only these discrete issues, as
enumerated above, with reference to the
applicable law and evidentiary record.
The parties are not to brief other issues
on review, which are adequately
presented in the parties’ existing filings.
In connection with the final
disposition of this investigation, the
Commission may issue an order that
could result in the exclusion of the
subject articles from entry into the
United States. 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
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 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
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Jkt 244001
parties are encouraged to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
submissions should address the
recommended determination by the ALJ
on remedy and bonding. Complainant
and the Office of Unfair Import
Investigations are also requested to
submit proposed remedial orders for the
Commission’s consideration.
Complainant is further requested to
state the dates that the patents expire,
the HTSUS numbers under which the
accused products are imported, and any
known importers of the accused
products. The written submissions and
proposed remedial orders must be filed
no later than close of business on
December 15, 2017. Initial submissions
are limited to 40 pages, not including
any attachments or exhibits related to
discussion of the public interest. Reply
submissions must be filed no later than
the close of business on December 22,
2017. Reply submissions are limited to
20 pages, not including any attachments
or exhibits related to discussion of
remedy, the public interest, and
bonding. No further submissions on
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 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–1003’’) in a prominent place on
the cover page and/or the first page. See
Handbook on Filing Procedures,
(https://www.usitc.gov/secretary/
documents/handbook_on_filing_
procedures.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. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this Investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
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57613
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel,1 solely for cybersecurity
purposes. 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: November 30, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017–26238 Filed 12–5–17; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
Notice of Receipt of Complaint;
Solicitation of Comments Relating to
the Public Interest
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has received a complaint
entitled Certain Mobile Electronic
Devices and Radio Frequency and
Processing Components Thereof, DN
3279; the Commission is soliciting
comments on any public interest issues
raised by the complaint or
complainant’s filing pursuant to the
Commission’s Rules of Practice and
Procedure.
SUMMARY:
Lisa
R. Barton, Secretary to the Commission,
U.S. International Trade Commission,
500 E Street SW., Washington, DC
20436, telephone (202) 205–2000. The
public version of the complaint can be
accessed on the Commission’s
Electronic Document Information
System (EDIS) at https://edis.usitc.gov,
and 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.,
FOR FURTHER INFORMATION CONTACT:
1 All contract personnel will sign appropriate
nondisclosure agreements.
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]]>Agencies
[Federal Register Volume 82, Number 233 (Wednesday, December 6, 2017)]
[Notices]
[Pages 57611-57613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26238]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1003]
Certain Composite Aerogel Insulation Materials and Methods for
Manufacturing the Same; Commission Decision 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 presiding
administrative law judge's (``ALJ'') final initial determination
(``ID'') issued on September 29, 2017, finding a violation of section
337 of the Tariff Act of 1930, as amended, in the above-captioned
investigation.
FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-2392. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its Internet server at https://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov.
Hearing-impaired persons are advised that information on this matter
can be obtained by contacting the Commission's TDD terminal on (202)
205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on June 8, 2016, based on a complaint filed by Aspen Aerogels, Inc. of
Northborough, Massachusetts (``Aspen''). 81 FR 36955-956 (Jun. 8,
2016). The complaint alleges violations
[[Page 57612]]
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
composite aerogel insulation materials and methods for manufacturing
the same by reason of infringement of certain claims of U.S. Patent No.
7,399,439 (``the '439 patent''); U.S. Patent No. 9,181,486 (``the '486
patent''); U.S. Patent No. 7,078,359 (``the '359 patent''); U.S. Patent
No. 6,989,123 (``the '123 patent''); and U.S. Patent No. 7,780,890
(``the '890 patent''). The complaint further alleges that an industry
in the United States exists as required by 19 U.S.C. 1337(a)(2). The
notice of investigation named Nano Tech Co., Ltd. of Zhejiang, China
(``Nano''), and Guangdong Alison Hi-Tech Co., Ltd. of Guangzhou, China
(``Alison''), as respondents. The Office of Unfair Import
Investigations (``OUII'') is also a party in this investigation.
All asserted claims of the '439 patent and the '486 patent and
certain asserted claims of the '359 have been terminated from the
investigation. See Comm'n Notice (Nov. 2, 2016); Comm'n Notice (Feb. 9,
2017). Only claims 15-17, and 19 of the '123 patent; claims 1, 5, 7, 9,
12, 15, and 16 of the '359 patent; and claims 11-13, 15, 17-19, and 21
of the '890 patent (``the Asserted Claims'') remain in the
investigation.
On November 15, 2016, the ALJ issued Order No. 19, granting Aspen's
motion for summary determination that the economic prong of the
domestic industry requirement has been satisfied under section
337(a)(3)(A) and (B). The Commission determined to review in part Order
No. 19. See Comm'n Notice (Dec. 7, 2016). On review, the Commission
affirmed with modification the summary determination that Aspen
satisfies the economic prong of the domestic industry requirement. See
id. at 1-2.
On September 29, 2017, the ALJ issued the final ID in this
investigation, finding a violation of section 337 by Respondents Alison
and Nano in connection with claims 1, 5, 7, and 9 of the '359 patent;
claims 15-17, and 19 of the '123 patent; and claims 11-13, 15, 17-19,
and 21 of the '890 patent. The ID also finds a violation of section 337
by Respondent Nano in connection with claims 12, 15, and 16 of the '359
patent. In addition, the ID finds that Aspen has shown that its
domestic industry products satisfy the technical prong of the domestic
industry requirement for the Asserted Patents. The ID further finds
that Respondents have not shown that the Asserted Claims are invalid.
The ID also contains the ALJ's recommended determination on remedy
and bonding. The ALJ recommended that the appropriate remedy is a
limited exclusion order with a certification provision prohibiting the
entry of certain composite aerogel insulation materials manufactured
abroad by or on behalf of Respondents Alison and Nano that infringe
certain claims of the '359 patent, and/or that are manufactured using
certain claimed methods of the '123 patent and the '890 patent.
On October 16, 2017, Respondents and OUII each filed a timely
petition for review of the final ID. Respondents and OUII challenge
certain of the ID's findings with respect to the validity of the
Asserted Claims and the ID's findings with respect to claim 5 of the
'359 patent. Respondent Alison separately challenges the ID's finding
of infringement with respect to claim 9 of the '359 patent. That same
day, Aspen filed a contingent petition for review of the final ID,
challenging the ALJ's construction of two claim limitations in the '359
patent. On October 24, 2017, the parties filed timely responses to the
petitions for review. On October 31, 2017, the parties filed their
public interest comments pursuant to Commission Rule 210.50(a)(4).
Having examined the record of this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review the ID in part. Specifically, with respect to the
'359 patent, the Commission has determined to review the ALJ's
construction of the ``lofty fibrous batting'' limitation in claim 1 of
the '359 patent. The Commission's review of the ``lofty fibrous
batting'' limitation does not include the ID's finding that Respondents
have not proven that the term is invalid for indefiniteness. The
Commission has also determined to review the ALJ's constructions of the
additional limitations in claims 5 and 9, and the ``total surface area
of that cross section'' limitation of claim 12 of the '359 patent, and
the ID's associated findings on infringement and the technical prong of
the domestic industry requirement with respect to those claims and
claims 15 and 16 of the '359 patent. In addition, the Commission has
determined to review the ID's findings that the asserted claims of the
'359 patent are not invalid in view of Ramamurthi by itself or in
combination with other prior art. With respect to the '123 and the '890
patents, the Commission has determined to review the ID's finding that
claim 15 of the '123 patent and claims 11-13, 15, 17, and 21-23 of the
'890 patent are not obvious in view of Ramamurthi and either Uchida or
Yada. The Commission has determined not to review the remaining issues
decided in the ID.
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 address the proper scope of claim 9 of the '359 patent
and, in particular, the ``about 1 to 20%'' limitation. Your response
should be limited to the evidence in the record, including a discussion
of relevant statements, if any, made in the prosecution history.
2. With reference to question one, please address whether
Respondent Alison's accused products infringe claim 9 of the '359
patent under the proper construction of the ``about 1 to 20%''
limitation.
3. With reference to question one, please discuss whether
Ramamurthi anticipates the limitation ``the dopant is present in an
amount of about 1 to 20% by weight of the total weight of the
composite'' in claim 9 of the '359 patent.
4. Please address whether the Commission should adopt Dr. Gnade's
interpretation or Dr. Leventis' interpretation of the ``total surface
area of that cross section'' limitation in claim 12 of the '359 patent.
Your response should be limited to the evidence in the record,
including a discussion of relevant statements, if any, made in the
prosecution history.
5. With reference to question four, please address whether
Respondents' accused products and Aspen's domestic industry products
meet the limitation ``where the batting is sufficiently lofty that the
cross-sectional area of the fibers of the batting visible in the cross-
section of the composite is less than 10% of the total surface area of
that cross section'' under both Dr. Gnade's interpretation and Dr.
Leventis' interpretation of the scope of claim 12 of the '359 patent.
6. With reference to question four, please discuss whether
Ramamurthi anticipates the limitation ``the cross-sectional area of the
fibers of the batting visible in the cross-section of the composite is
less than 10% of the total surface area of that cross section'' in
claim 12 of the '359 patent.
7. Please address Aspen's contention in its combined response (at
82-84) that Respondents' petitions for review presents new arguments
and new evidence concerning Uchida and Yada that they failed to raise
in their post-hearing briefs.
[[Page 57613]]
The parties have been invited to brief only these discrete issues,
as enumerated above, with reference to the applicable law and
evidentiary record. The parties are not to brief other issues on
review, which are adequately presented in the parties' existing
filings.
In connection with the final disposition of this investigation, the
Commission may issue an order that could result in the exclusion of the
subject articles from entry into the United States. 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
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 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. Complainant and the Office of Unfair Import
Investigations are also requested to submit proposed remedial orders
for the Commission's consideration. Complainant is further requested to
state the dates that the patents expire, the HTSUS numbers under which
the accused products are imported, and any known importers of the
accused products. The written submissions and proposed remedial orders
must be filed no later than close of business on December 15, 2017.
Initial submissions are limited to 40 pages, not including any
attachments or exhibits related to discussion of the public interest.
Reply submissions must be filed no later than the close of business on
December 22, 2017. Reply submissions are limited to 20 pages, not
including any attachments or exhibits related to discussion of remedy,
the public interest, and bonding. No further submissions on 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 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-1003'') in a prominent place on
the cover page and/or the first page. See Handbook on Filing
Procedures, (https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.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. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel,\1\ solely for
cybersecurity purposes. All nonconfidential written submissions will be
available for public inspection at the Office of the Secretary and on
EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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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: November 30, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-26238 Filed 12-5-17; 8:45 am]
BILLING CODE 7020-02-P
