[Federal Register: September 28, 2007 (Volume 72, Number 188)]
[Notices]
[Page 55249-55250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se07-117]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-604]
In the Matter of Certain Sucralose, Sweeteners Containing
Sucralose, and Related Intermediate Compounds Thereof; Notice of
Commission Determination To Review and Vacate an Initial Determination
Denying a Motion To Terminate the Investigation With Regard to Three
Patents
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 determined to review and vacate an initial determination
(``ID'') (Order No. 11) of the presiding administrative law judge
(``ALJ'') in the above-captioned investigation denying a motion to
terminate the investigation as to United States Patent Nos. 4,980,463,
5,470,969, and 5,034,551.
FOR FURTHER INFORMATION CONTACT: James Worth, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202) 205-2065. 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
http://www.usitc.gov The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://.
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 May 10, 2007, based upon a complaint filed on behalf of Tate & Lyle
Technology Ltd. of London, United Kingdom, and Tate & Lyle Sucralose,
Inc. of Decatur, Illinois (collectively, ``Tate & Lyle''). The
complaint alleged a violation of section 337(a)(1)(B) of the Tariff Act
of 1930 (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 sucralose, sweeteners containing sucralose, and related
intermediate compounds thereof by reason of infringement of various
claims of United States Patent Nos. 4,980,463 (``the '463 patent''),
5,470,969 (``the '969 patent''), 5,034,551 (``the '551 patent''),
5,498,709, and 7,049,435. The notice of investigation named twenty-five
respondents.
On June 12, 2007, respondents Changzhou Niutang Chemical Plant Co.,
Ltd.; U.S. Niutang Chemical, Inc.; Garuda International Inc.; Guangdong
Food Industry Institute; and L&P Food Ingredient Co., Ltd.
(collectively, ``Changzhou'') filed a motion to terminate the
investigation with respect to the '463 patent, the '969 patent, and the
'551 patent. Several other respondents joined Changzhou's motion to
terminate. Tate & Lyle opposed the motion. The Commission investigative
attorney (``IA'') supported the motion with respect to the '551 patent,
but not with respect to the '463 patent or the '969 patent.
On August 8, 2007, the ALJ issued an ID (Order No. 11), denying
Changzhou's motion to terminate the investigation with regard to the
'463 patent, the '969 patent, and the '551 patent. The ALJ issued his
order in the form of an ID under 19 CFR 210.42, pursuant to the notice
of investigation. The complainants, certain respondents, and the
Commission investigative attorney filed petitions for review of Order
No. 11.
Having examined the record of this investigation, including the
ALJ's ID and the submissions of the parties, the Commission has
determined to review and vacate the ALJ's ID. The issues raised by
Changzhou's motion, including whether the importation of the finished
product alone (sucralose) constitutes a violation of section 337 based
on the '463, '969, and '551 patents, and the ID, including whether
trace amounts of an intermediate product or catalyst in the imported
product can constitute a violation of section 337, may be addressed in
the final initial determination (or earlier, if appropriate).
In addressing these issues, the parties and the ALJ should consider
the following:
1. The amount of any subject product which has been or is currently
being imported.
2. Whether there is a difference in effective scope between 35
U.S.C. 271(g)
[[Page 55250]]
and 19 U.S.C. 1337(a)(1)(B)(ii). Whether this question has been decided
by Kinik v. International Trade Commission, 362 F.3d 1359, 1361-63
(Fed. Cir. 2004).
3. The language and legislative history of 19 U.S.C.
1337(a)(1)(B)(ii) and the language and legislative history of former
section 337a (former 19 U.S.C. 1337a). The statements in Amgen v. ITC,
902 F.2d 1532 (Fed. Cir. 1990), as to ``covered'' and that former
section 337a was reenacted as section 337(a)(1)(B)(ii) without a change
in scope. Any special rule of statutory interpretation that should be
applied given that former section 337a was enacted in response to In re
Amtorg Trading Corp., 75 F.2d 826 (CCPA 1935). The processes and
patents in In re Amtorg Trading Corp. and in In re Northern Pigment
Co., 71 F.2d 447 (CCPA 1934), and the underlying Commission
proceedings. The processes and patents in all Commission and related
court proceedings involving process patents and section 337 before and
after the enactment of former section 337a.
4. The Supreme Court's recent decision in Microsoft Corp. v. AT&T
Corp., 550 U.S.--(2007).
5. How the above cases may best be read in conjunction with each
other.
The Commission has also determined to grant the investigative
attorney's motion for leave to file its petition for review out of time
and to deny Tate & Lyle's motion for oral argument on review as moot.
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 section 210.43-45 of the Commission's Rules of Practice and
Procedure (19 CFR 210.43-45).
By order of the Commission.
Issued: September 24, 2007.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E7-19168 Filed 9-27-07; 8:45 am]
BILLING CODE 7020-02-P