Certain Variable Speed Wind Turbine Generators and Components Thereof; Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 3586-3587 [2022-01234]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 87, Number 15 (Monday, January 24, 2022)]
[Notices]
[Pages 3586-3587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01234]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1218]


Certain Variable Speed Wind Turbine Generators and Components 
Thereof; Notice of the Commission's Final Determination Finding a 
Violation of Section 337; Issuance of a Limited Exclusion Order and 
Cease and Desist Orders; Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found a violation of section 337 of the Tariff Act of 
1930, as amended, by Siemens Gamesa Renewable Energy Inc.; Siemens 
Gamesa Renewable Energy A/S; and Gamesa Electric, S.A.U., and has 
determined to issue a limited exclusion order and cease and desist 
orders. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
[email protected]. General information concerning the Commission may 
also be obtained by accessing its internet server (https://www.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: The Commission instituted this investigation 
on September 8, 2020, based on a complaint filed on behalf of General 
Electric Company of Boston, Massachusetts (``GE''). 85 FR 55492-93 
(Sept. 8, 2020). The complaint, as supplemented, alleged violations of 
section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, based upon the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain variable 
speed wind turbine generators and components thereof by reason of 
infringement of one or more of claims 1, 3, 6, 7, 12, 15-16, 21-24, 29, 
30, and 33-38 of U.S. Patent No. 6,921,985 (``the '985 patent'') and 
claims 1 and 2 of the U.S. Patent No. 7,629,705 (``the '705 patent''). 
Id. at 55493; Order No. 10 (Dec. 2, 2020), unreviewed by Comm'n Notice 
(Dec. 22, 2020). Id. The Commission's notice of investigation named as 
respondents Siemens Gamesa Renewable Energy Inc. of Orlando, Florida; 
Siemens Gamesa Renewable Energy A/S of Brande, Denmark; and Gamesa 
Electric, S.A.U. of Zamudio, Spain (collectively, ``SGRE''). Id. at 
26493; 85 FR 55493. The Office of Unfair Import Investigations is not a 
party to the investigation. Id.
    The Commission subsequently terminated the investigation with 
respect to claims 3, 7, 15, 16, 21-24, 36, and 38 of the '985 patent 
and claim 2 of the '705 patent based on GE's partial withdrawal of the 
complaint. Order No. 20 (Mar. 30, 2021), unreviewed by Comm'n Notice 
(Apr. 15, 2021) (terminating the investigation with respect to claims 
3, 7, 36, and 38 of the '985 patent and claim 2 of the '705 patent); 
Order No. 24 (Apr. 26, 2021), unreviewed by Comm'n Notice (May 17, 
2021) (terminating the investigation with respect to claims 15, 16, and 
21-24 of the '985 patent). Accordingly, at the time of the Final ID, 
the remaining asserted claims were claims 1, 6, 12, 29, 30, 33-35, and 
37 of the '985 patent and claim 1 of the '705 patent.
    The Commission also issued a summary determination that GE 
satisfied the economic prong of the domestic industry requirement with 
respect to both asserted patents. Order No. 23 (Apr. 26, 2021), 
unreviewed by Comm'n Notice (May 26, 2021).
    On September 10, 2021, the ALJ issued a final initial determination 
(``Final ID'') finding a violation of section 337 with respect to 
claims 1, 6, 12, 29, 30, 33-35, and 37 of the '985 patent and finding 
no violation with respect to claim 1 of the '705 patent. Final ID at 
147. The Final ID found that GE showed that SGRE induced infringement 
of claims 1, 6, 12, 29, 30, 33-35, and 37 of the '985 patent and claim 
1 of the '705 patent, and that GE showed that it satisfied the 
technical prong of the domestic industry requirement with respect to 
both patents. The Final ID also found that SGRE showed that claim 1 of 
the '705 patent is directed to ineligible subject matter but failed to 
show that any asserted claim of the '985 patent is invalid or patent 
ineligible.
    On September 22 and 24, 2021, GE and SGRE, respectively, filed 
petitions for review of the Final ID. GE and SGRE opposed each other's 
petitions on September 30, 2021, and October 4, 2021, respectively.
    On November 12, 2021, the Commission determined to review the

[[Page 3587]]

Final ID in part. Specifically, the Commission determined to review the 
following issues: (1) The Final ID's finding that the accused products 
satisfy the limitation ``a second mode of operation comprising the low 
voltage event'' of claims 1, 6, and 12 of the '985 patent; (2) the 
Final ID's finding that the accused turbines having a doubly-fed 
induction generator (``DFIG'') satisfy the limitation ``turbine 
controller causes the blade pitch control system to vary the pitch of 
the one or more blades'' of claims 1, 6, and 12 of the '985 patent; (3) 
the Final ID's finding that certain full-converter turbines with later 
versions of software and DFIG Products infringe claims 29, 30, 33-35, 
and 37 of the '985 patent; and (4) the Final ID's finding that the 
accused products satisfy the limitation ``during the entire duration of 
and subsequent to a zero voltage fault that lasts for an undetermined 
period of time'' of claim 1 of the '705 patent. The Commission also 
determined to take no position on whether GE showed that the accused 
products satisfy the limitation ``during the entire duration of and 
subsequent to a zero voltage fault that lasts for an undetermined 
period of time,'' and therefore affirmed the Final ID's finding of no 
violation as to claim 1 of the '705 patent based on 35 U.S.C. 101. The 
Commission did not review any other findings presented in the final ID.
    The Commission sought briefing from the parties on six issues and 
requested briefing from the parties, interested government agencies, 
and interested persons on remedy, bonding, and the public interest. On 
December 7, 2021, GE and SGRE filed their initial submissions in 
response to the Commission's request for briefing. On December 14, 
2021, GE and SGRE filed their reply submissions in response to the 
Commission's request for briefing. The Commission also received 
submissions from U.S. Representative Paul Tonko; U.S. Representative 
William Timmons; Senator Patrick Leahy; Senator Tim Scott; Senators 
John Hoeven, Kevin Cramer, and Kelly Armstong; Senators Charles 
Grassley and Joni Ernst; Governor Kim Reynolds of Iowa; Governor Laura 
Kelly of Kansas; RWE Renewables Americas, LLC; Enel Green Power North 
America, Inc.; Avangrid Renewables, LLC; Allete Clean Energy; Clearway 
Energy Group, LLC; Algonquin Power & Utilities Corp.; and MidAmerican 
Energy Company.
    Having examined the record of this investigation, including the 
Final ID, the petitions for review, responses, and other submissions 
from the parties and the public, the Commission has determined that GE 
failed to show any accused SGRE products satisfies the limitation ``a 
second mode of operation comprising the low voltage event'' found in 
claims 1, 6, and 12 of the '985 patent. The Commission has further 
determined that GE failed to show that the accused SGRE DFIG products 
satisfy the limitation ``turbine controller causes the blade pitch 
control system to vary the pitch of the one or more blades'' of claims 
1, 6, and 12 of the '985 patent. Finally, the Commission finds that GE 
showed that the accused full-converter wind turbine generators with 
earlier versions of software infringe claims 29, 30, 33-35, and 37 of 
the '985 patent, but that GE did not show that the accused DFIG wind 
turbines generators or the accused full-converter wind turbine 
generators with later versions of software infringed those claims. The 
Commission therefore reverses the Final ID's finding that SGRE 
infringes claims 1, 6, and 12 of the '985 patent, but finds that GE 
showed infringement of claims 29, 30, 33-35, and 37 of the '985 patent 
by the accused full-converter wind turbine generators with earlier 
versions of software. Accordingly, the Commission finds that GE has 
shown a violation of section 337 by SGRE with respect to claims 29, 30, 
33-35, and 37 of the '985 patent.
    The Commission's determinations are explained more fully in the 
accompanying Opinion. All other findings in the ID under review that 
are consistent with the Commission's determinations are affirmed.
    The Commission has determined that the appropriate form of relief 
in this investigation is a limited exclusion order with respect to SGRE 
prohibiting the importation of certain variable speed wind turbine 
generators and components thereof that are covered by one or more of 
claims 29, 30, 33-35, and 37 of the '985 patent, and cease and desist 
orders that prohibits SGRE from further importing, selling, and 
distributing those products in the United States. The Commission has 
further determined that the public interest factors enumerated in 
subsection 337(d)(1) and (f)(1) (19 U.S.C. 1337(d)(1) and (f)(1)) 
warrant an exemption in both orders for the service and repair of 
subject articles that were sold to U.S. consumers as of the date of the 
orders, but do not otherwise preclude the issuance of the limited 
exclusion order or the cease and desist orders. Finally, the Commission 
has determined that the bond for importation during the period of 
Presidential review shall be in the amount of zero percent (0%) (i.e., 
no bond) of the entered value of such articles.
    The Commission's notice, order, and opinion were delivered to the 
President and to the United States Trade Representative on the day of 
their issuance. The Commission has also notified the Secretary of the 
Treasury and Customs and Border Protection of the order. The 
investigation is hereby terminated.
    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 18, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-01234 Filed 1-21-22; 8:45 am]
BILLING CODE 7020-02-P