Certain Human Milk Oligosaccharides and Methods of Producing the Same; Commission Decision To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 6573-6575 [2020-02178]
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Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Notices
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 Information System
(‘‘EDIS’’) (https://edis.usitc.gov).
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal, telephone
(202) 205–1810.
SUPPLEMENTARY INFORMATION: Section
337 of the Tariff Act of 1930 (‘‘Section
337’’) provides that if the Commission
finds a violation it shall exclude the
articles concerned from the United
States:
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unless, after considering the effect of such
exclusion upon the public health and
welfare, competitive conditions in the United
States economy, the production of like or
directly competitive articles in the United
States, and United States consumers, it finds
that such articles should not be excluded
from entry.
19 U.S.C. 1337(d)(1). A similar
provision applies to cease and desist
orders. 19 U.S.C. 1337(f)(1).
The Commission is interested in
further development of the record on
the public interest in this investigation.
Accordingly, members of the public are
invited to file submissions of no more
than five (5) pages, inclusive of
attachments, concerning the public
interest in light of the ALJ’s
recommended determination on remedy
and bonding issued in this investigation
on January 28, 2020. Comments should
address whether issuance of the
recommended remedial orders in this
investigation would affect the public
health and welfare in the United States,
competitive conditions in the United
States economy, the production of like
or directly competitive articles in the
United States, or United States
consumers.
In particular, the Commission is
interested in comments that:
(i) Explain how the articles
potentially subject to the recommended
remedial orders are used in the United
States;
(ii) identify any public health, safety,
or welfare concerns in the United States
relating to the recommended remedial
orders;
(iii) identify like or directly
competitive articles that complainants,
their licensees, or third parties make in
the United States which could replace
the subject articles if they were to be
excluded;
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(iv) indicate whether complainants,
complainants’ licensees, and/or third
party suppliers have the capacity to
replace the volume of articles
potentially subject to the recommended
remedial orders within a commercially
reasonable time; and
(v) explain how the recommended
remedial orders would impact
consumers in the United States.
Written submissions must be filed no
later than by close of business on March
2, 2020. 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–1140’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic 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, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. 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
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210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: January 30, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–02168 Filed 2–4–20; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1120]
Certain Human Milk Oligosaccharides
and Methods of Producing the Same;
Commission Decision To Review in
Part a Final Initial Determination
Finding a Violation of Section 337;
Schedule for Filing 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 a final initial determination
(‘‘FID’’) of the presiding administrative
law judge (‘‘ALJ’’) finding a violation of
section 337 of the Tariff Act of 1930, as
amended. The Commission requests
briefing from the parties on certain
issues under review, as set forth in this
notice. The Commission also requests
briefing from the parties, interested
persons, and government agencies on
the issues of remedy, the public interest,
and bonding.
FOR FURTHER INFORMATION CONTACT:
Houda Morad, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–4716. 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
SUMMARY:
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6574
Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Notices
contacting the Commission’s TDD
terminal on (202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on June 21, 2018, based on a complaint,
as amended and supplemented, filed on
behalf of Glycosyn LLC of Waltham,
Massachusetts (‘‘Glycosyn’’). See 83 FR
28865 (June 21, 2018). The complaint,
as amended and supplemented, alleges
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337
(‘‘section 337’’), based upon the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain human milk oligosaccharides by
reason of infringement of claims 1–40 of
U.S. Patent No. 9,453,230 (‘‘the ’230
patent’’) and claims 1–28 of U.S. Patent
No. 9,970,018 (‘‘the ’018 patent’’). See
id. The notice of investigation named
Jennewein Biotechnologie GmbH
(‘‘Jennewein’’) of Rheinbreitbach,
Germany as a respondent in this
investigation. See id. The Office of
Unfair Import Investigations (‘‘OUII’’) is
also named as a party to the
investigation. See id.
On August 9, 2018, the ALJ partially
terminated the investigation as to claims
4–7, 9–12, 14, 23–26, 28–31, 33, and 39–
40 of the ’230 patent and claims 6, 7, 9,
11, 13–17, 19, and 22 of the ’018 patent
based on the withdrawal of the
allegations pertaining to those claims.
See Order No. 5 (Aug. 9, 2018),
unreviewed, Comm’n Notice (Aug. 29,
2018). On October 30, 2018, the ALJ
partially terminated the investigation as
to claims 1–3, 8, 13, and 15–20 of the
’230 patent based on the withdrawal of
the allegations pertaining to those
claims. See Order No. 15 (Oct. 30, 2018),
unreviewed, Comm’n Notice (Nov. 29,
2018). On November 19, 2018, the ALJ
partially terminated the investigation as
to claim 27 of the ’230 patent and claims
4, 20, and 21 of the ’018 patent based
on the withdrawal of the allegations
pertaining to those claims. See Order
No. 17 (Nov. 19, 2018), unreviewed,
Comm’n Notice (Dec. 12, 2018). On
February 8, 2018, the ALJ partially
terminated the investigation as to claims
21, 22, 32, and 34–38 of the ’230 patent
based on the withdrawal of the
allegations pertaining to those claims.
See Order No. 25 (Feb. 8, 2019),
unreviewed, Comm’n Notice (Feb. 28,
2019). Claims 1–3, 5, 8, 10, 12, 18, and
23–28 of the ’018 patent remain pending
in this investigation.
The ALJ conducted an evidentiary
hearing on May 14–17, 2019, and on
September 9, 2019, issued the FID
finding a violation of section 337 based
on the infringement of claims 1–3, 5, 8,
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10, 12, 18, and 24–28 of the ’018 patent.
In addition, the FID finds that the
asserted claims are neither invalid
under 35 U.S.C. 103 and 112, nor
unenforceable for inequitable conduct.
Furthermore, the FID finds that the
domestic industry requirement is
satisfied. The FID also contains a
recommended determination (‘‘RD’’)
recommending that the Commission
issue a limited exclusion order (‘‘LEO’’)
barring entry of articles that infringe the
’018 patent. The RD also recommends
that the Commission impose a 5% bond
during the period of Presidential review.
Furthermore, as directed by the
Commission, the RD provides findings
with respect to the public interest and
recommends that the Commission
determine that the public interest
factors do not preclude entry of the
LEO.
On September 23, 2019, Jennewein
and OUII filed petitions for review of
the FID. On October 1, 2019, Glycosyn
and OUII filed responses to Jennewein’s
and the IA’s petitions.
Having examined the record of this
investigation, including the FID, the RD,
and the parties’ submissions, the
Commission has determined to review
the FID in part. Specifically, the
Commission has determined to review
the FID’s infringement findings with
respect to Jennewein’s bacterial strains
adjudicated in this investigation. In
addition, the Commission has
determined to review the FID’s decision
not to adjudicate infringement as to
Jennewein’s alternative bacterial strain,
the TTFL12 strain. The Commission has
determined not to review the remainder
of the FID.
In connection with its review, the
Commission requests written responses
regarding the following inquiries:
1. Assuming that the Commission
determines to adjudicate infringement
with respect to Jennewein’s TTFL12
bacterial strain, please provide your
position, with support from the
evidentiary record, as to whether the
TTFL12 strain infringes or does not
infringe the asserted patent claims.
2. Should the Commission adjudicate
infringement with respect to Jennwein’s
alternative strain? Is the Commission’s
determination of whether to adjudicate
an alternative or redesigned product a
legal question, a factual question, a
mixed question of law or fact, an
exercise of discretion, or something
else?
3. Is the TTFL12 strain within the
scope of the investigation? What criteria
and evidence normally informs this
analysis?
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4. Does a respondent need to import
an alternative or redesigned product for
the product to be adjudicated?
5. What evidence corroborates
Jennewein’s assertion that the products
listed in the shipping documents (RX–
278C and RX–280C) were produced
with the TTFL12 strain? Please provide
your answers in a table with citations in
one column and a brief explanation in
a second column.
6. What is the effect of Jennewein’s
responses to Glycosyn’s request for
admission? Why has Jennewein failed to
amend its responses if they are incorrect
or misleading?
7. Is the TTFL12 strain sufficiently
fixed in design? What criteria and
evidence normally informs this
analysis? Is there any declaratory
judgment precedent that is relevant?
Which party bears the burden of
showing that an alternative or
redesigned product is fixed in design?
8. Has the TTFL12 strain been subject
to sufficient discovery? What criteria
and evidence normally informs the
‘‘sufficient discovery’’ analysis?
9. Should the Commission issue
remedial orders that are directed to the
adjudicated strains (the #1540 and
#1540 derivative) at this juncture?
Responses to the above questions
should not exceed 40 pages, and replies
should not exceed 20 pages.
In addition, in connection with the
final disposition of this investigation,
the statute authorizes issuance of (1) an
order that could result in the exclusion
of the subject articles from entry into the
United States, and/or (2) a cease and
desist order 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
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. at 7–10
(Dec. 1994).
The statute requires the Commission
to consider the effects of any remedy
upon the public interest. The public
interest factors the Commission will
consider include the effect that an
exclusion order and/or cease and desist
orders would have on (1) the public
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Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Notices
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,
disapprove, or take no action on the
Commission’s determination. 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 limited to the
briefing questions above. 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
initial written submissions should
include views on the recommended
determination by the ALJ on remedy,
the public interest, and bonding.
Complainant and the Commission
Investigative Attorney are also requested
to identify the form of remedy sought
and to submit proposed remedial orders
for the Commission’s consideration in
their initial written submissions.
Complainant is further requested to
state the date that the asserted patent
expires and the HTSUS numbers under
which the accused products are
imported, and to supply the names of
known importers of the products at
issue in this investigation.
Initial written submissions and
proposed remedial orders must be filed
no later than close of business on
February 18, 2020. Reply submissions
must be filed no later than the close of
business on February 25, 2020 and must
be limited to issues raised in the initial
written submissions. 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 (8) true
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18:54 Feb 04, 2020
Jkt 250001
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–1120’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
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 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: January 30, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–02178 Filed 2–4–20; 8:45 am]
BILLING CODE 7020–02–P
1 All contract personnel will sign appropriate
nondisclosure agreements.
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6575
DEPARTMENT OF JUSTICE
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Telemanagement Forum
Notice is hereby given that, on
January 14, 2020, pursuant to Section
6(a) of the National Cooperative
Research and Production Act of 1993,
15 U.S.C. 4301 et seq. (‘‘the Act’’),
TeleManagement Forum (‘‘The Forum’’)
filed written notifications
simultaneously with the Attorney
General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, the following entities
have become members of the Forum:
Adad, Sophia Antipolis, FRANCE;
Beijing Qcubic Technology Co. Limited
Company, Beijing, PEOPLE’S REPUBLIC
OF CHINA; BMC Software, Inc.,
Houston, TX; Cartesian Inc., Overland
Park, KS; Cellwize Wireless
Technologies Pte. Ltd., Tel Aviv,
ISRAEL; Cloudlite, Moscow, RUSSIA;
Colt Technology Services Group
Limited, London, UNITED KINGDOM;
DNA Plc, Kuopio, FINLAND; Equinix,
Inc, Tampa, FL; IoT Lab, Geneva,
SWITZERLAND; M1 Limited,
Singapore, SINGAPORE; Multichoice
Support Services (Pty) Ltd, Randburg,
SOUTH AFRICA; ProximaX, Singapore,
SINGAPORE; TDS Telecommunications
LLC, Madison, WI; Telecom Namibia
Limited, Windhoek, NAMIBIA; Telenor
Myanmar Limited, Yangon,
MYANMAR; The Libyan International
Telecommunication Company, Tripoli,
LIBYA; Total Access Communication
Public Company Limited, Bangkok,
THAILAND; Universitas Multimedia
Nusantara, Tangerang, INDONESIA;
Unryo Inc., Laval, CANADA; Veschatel
LLC, Perm, RUSSIA; Webcircles BV,
Oosterbeek, NETHERLANDS;
WorkSpan, Foster City, CA; ZDSL.com,
Kuala Lumpur, MALAYSIA.
Also, the following members have
changed their names: ArchiTelco to EAWorkings B.V., Winchester, UNITED
KINGDOM; Black Tangent Pte. Ltd. to
Telecta Pte. Ltd., Singapore,
SINGAPORE; GDi GISDATA LLC to GDi
LLC, Zagreb, CROATIA; SigScale Global
Inc. to SigScale, Toronto, CANADA;
Telenor Myanmar to Telenor Myanmar
Limited, Yangon, MYANMAR; T-Mobile
Austria GmbH to Magenta Telekom,
Vienna, AUSTRIA; WeDo Technologies
to Mobileum Inc., Cupertino, CA.
E:\FR\FM\05FEN1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 24 (Wednesday, February 5, 2020)]
[Notices]
[Pages 6573-6575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02178]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1120]
Certain Human Milk Oligosaccharides and Methods of Producing the
Same; Commission Decision To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Schedule for Filing
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 a final initial
determination (``FID'') of the presiding administrative law judge
(``ALJ'') finding a violation of section 337 of the Tariff Act of 1930,
as amended. The Commission requests briefing from the parties on
certain issues under review, as set forth in this notice. The
Commission also requests briefing from the parties, interested persons,
and government agencies on the issues of remedy, the public interest,
and bonding.
FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-4716. 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
[[Page 6574]]
contacting the Commission's TDD terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on June 21, 2018, based on a complaint, as amended and supplemented,
filed on behalf of Glycosyn LLC of Waltham, Massachusetts
(``Glycosyn''). See 83 FR 28865 (June 21, 2018). The complaint, as
amended and supplemented, alleges violations of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), based
upon the importation into the United States, the sale for importation,
and the sale within the United States after importation of certain
human milk oligosaccharides by reason of infringement of claims 1-40 of
U.S. Patent No. 9,453,230 (``the '230 patent'') and claims 1-28 of U.S.
Patent No. 9,970,018 (``the '018 patent''). See id. The notice of
investigation named Jennewein Biotechnologie GmbH (``Jennewein'') of
Rheinbreitbach, Germany as a respondent in this investigation. See id.
The Office of Unfair Import Investigations (``OUII'') is also named as
a party to the investigation. See id.
On August 9, 2018, the ALJ partially terminated the investigation
as to claims 4-7, 9-12, 14, 23-26, 28-31, 33, and 39-40 of the '230
patent and claims 6, 7, 9, 11, 13-17, 19, and 22 of the '018 patent
based on the withdrawal of the allegations pertaining to those claims.
See Order No. 5 (Aug. 9, 2018), unreviewed, Comm'n Notice (Aug. 29,
2018). On October 30, 2018, the ALJ partially terminated the
investigation as to claims 1-3, 8, 13, and 15-20 of the '230 patent
based on the withdrawal of the allegations pertaining to those claims.
See Order No. 15 (Oct. 30, 2018), unreviewed, Comm'n Notice (Nov. 29,
2018). On November 19, 2018, the ALJ partially terminated the
investigation as to claim 27 of the '230 patent and claims 4, 20, and
21 of the '018 patent based on the withdrawal of the allegations
pertaining to those claims. See Order No. 17 (Nov. 19, 2018),
unreviewed, Comm'n Notice (Dec. 12, 2018). On February 8, 2018, the ALJ
partially terminated the investigation as to claims 21, 22, 32, and 34-
38 of the '230 patent based on the withdrawal of the allegations
pertaining to those claims. See Order No. 25 (Feb. 8, 2019),
unreviewed, Comm'n Notice (Feb. 28, 2019). Claims 1-3, 5, 8, 10, 12,
18, and 23-28 of the '018 patent remain pending in this investigation.
The ALJ conducted an evidentiary hearing on May 14-17, 2019, and on
September 9, 2019, issued the FID finding a violation of section 337
based on the infringement of claims 1-3, 5, 8, 10, 12, 18, and 24-28 of
the '018 patent. In addition, the FID finds that the asserted claims
are neither invalid under 35 U.S.C. 103 and 112, nor unenforceable for
inequitable conduct. Furthermore, the FID finds that the domestic
industry requirement is satisfied. The FID also contains a recommended
determination (``RD'') recommending that the Commission issue a limited
exclusion order (``LEO'') barring entry of articles that infringe the
'018 patent. The RD also recommends that the Commission impose a 5%
bond during the period of Presidential review. Furthermore, as directed
by the Commission, the RD provides findings with respect to the public
interest and recommends that the Commission determine that the public
interest factors do not preclude entry of the LEO.
On September 23, 2019, Jennewein and OUII filed petitions for
review of the FID. On October 1, 2019, Glycosyn and OUII filed
responses to Jennewein's and the IA's petitions.
Having examined the record of this investigation, including the
FID, the RD, and the parties' submissions, the Commission has
determined to review the FID in part. Specifically, the Commission has
determined to review the FID's infringement findings with respect to
Jennewein's bacterial strains adjudicated in this investigation. In
addition, the Commission has determined to review the FID's decision
not to adjudicate infringement as to Jennewein's alternative bacterial
strain, the TTFL12 strain. The Commission has determined not to review
the remainder of the FID.
In connection with its review, the Commission requests written
responses regarding the following inquiries:
1. Assuming that the Commission determines to adjudicate
infringement with respect to Jennewein's TTFL12 bacterial strain,
please provide your position, with support from the evidentiary record,
as to whether the TTFL12 strain infringes or does not infringe the
asserted patent claims.
2. Should the Commission adjudicate infringement with respect to
Jennwein's alternative strain? Is the Commission's determination of
whether to adjudicate an alternative or redesigned product a legal
question, a factual question, a mixed question of law or fact, an
exercise of discretion, or something else?
3. Is the TTFL12 strain within the scope of the investigation? What
criteria and evidence normally informs this analysis?
4. Does a respondent need to import an alternative or redesigned
product for the product to be adjudicated?
5. What evidence corroborates Jennewein's assertion that the
products listed in the shipping documents (RX-278C and RX-280C) were
produced with the TTFL12 strain? Please provide your answers in a table
with citations in one column and a brief explanation in a second
column.
6. What is the effect of Jennewein's responses to Glycosyn's
request for admission? Why has Jennewein failed to amend its responses
if they are incorrect or misleading?
7. Is the TTFL12 strain sufficiently fixed in design? What criteria
and evidence normally informs this analysis? Is there any declaratory
judgment precedent that is relevant? Which party bears the burden of
showing that an alternative or redesigned product is fixed in design?
8. Has the TTFL12 strain been subject to sufficient discovery? What
criteria and evidence normally informs the ``sufficient discovery''
analysis?
9. Should the Commission issue remedial orders that are directed to
the adjudicated strains (the #1540 and #1540 derivative) at this
juncture?
Responses to the above questions should not exceed 40 pages, and
replies should not exceed 20 pages.
In addition, in connection with the final disposition of this
investigation, the statute authorizes issuance of (1) an order that
could result in the exclusion of the subject articles from entry into
the United States, and/or (2) a cease and desist order 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 Lines, Inv. No. 337-TA-360, USITC Pub. No.
2843, Comm'n Op. at 7-10 (Dec. 1994).
The statute requires the Commission to consider the effects of any
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or cease and desist orders would have on (1) the public
[[Page 6575]]
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,
disapprove, or take no action on the Commission's determination. 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 limited to the briefing questions above.
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 initial
written submissions should include views on the recommended
determination by the ALJ on remedy, the public interest, and bonding.
Complainant and the Commission Investigative Attorney are also
requested to identify the form of remedy sought and to submit proposed
remedial orders for the Commission's consideration in their initial
written submissions. Complainant is further requested to state the date
that the asserted patent expires and the HTSUS numbers under which the
accused products are imported, and to supply the names of known
importers of the products at issue in this investigation.
Initial written submissions and proposed remedial orders must be
filed no later than close of business on February 18, 2020. Reply
submissions must be filed no later than the close of business on
February 25, 2020 and must be limited to issues raised in the initial
written submissions. 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
(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-1120'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/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 non-confidential 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: January 30, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-02178 Filed 2-4-20; 8:45 am]
BILLING CODE 7020-02-P
