Notice of Commission Determination to Review in Part an Initial Determination; Schedule for the Filing of Written Submissions on the Issue Under Review, and on Remedy, the Public Interest, and Bonding

DEPARTMENT OF THE INTERIOR

[Inv. No. 337-TA-334]

Notice of Commission Determination to Review in Part an Initial

Determination; Schedule for the Filing of Written Submissions on the

Issue Under Review, and on Remedy, the Public Interest, and Bonding

In the Matter of certain condensers, parts thereof and products

containing same, including air conditioners for automobiles.

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 in part the initial determination

(ID) issued by the presiding administrative law judge (ALJ) on December

2, 1996, in the above-captioned investigation. The ID found a violation

of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337.

FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the

General Counsel, U.S. International Trade Commission, telephone 202-

205-3104.

SUPPLEMENTARY INFORMATION: On December 12, 1991, Modine Manufacturing

Co. filed a complaint with the Commission alleging a violation of

section 337 by respondents Showa Aluminum Corporation, Showa Aluminum

Corporation of America, Mitsubishi Motors Corporation, Mitsubishi

Motors Sales of America, Mitsubishi Heavy Industries, Ltd., and

Mitsubishi Heavy Industries America, Inc. (collectively referred to

herein as respondents). Modine alleged that the respondents had

infringed claims of Modine's patent, U.S. Letters Patent 4,998,580 (the

'580 patent). The investigation was assigned an ALJ, who determined

that there was no infringement, either literally or under the doctrine

of equivalents, by the respondents. The ALJ further determined that the

patent was invalid and unenforceable due to inequitable conduct. On

July 30, 1993, the Commission reversed the ALJ's findings of invalidity

and inequitable conduct, but adopted her findings and conclusions on

the infringement issues.

Modine appealed the Commission's finding of no infringement, and

thus no violation of section 337, to the U.S. Court of Appeals for the

Federal Circuit (Federal Circuit). In the same appeal, the respondents

challenged the Commission's findings upholding the validity and

enforceability of the '580 patent. On February 5, 1996, the Federal

Circuit reversed the Commission's claim interpretation and remanded the

investigation to the Commission for redetermination of the issues of

literal infringement and infringement under the doctrine of

equivalents. Modine Manufacturing Co. v. U.S.I.T.C., 75 F.3d 1545, 1549

(Fed. Cir. 1996). The court affirmed the Commission's determination in

all other respects. Id.

On May 31, 1996, the Commission issued an order remanding the

Condensers investigation to the Office of Administrative Law Judges.

The order provided that the presiding ALJ conduct further proceedings

in accordance with the Federal Circuit's decision in Modine and issue

an ID on violation, preferably within six months. The Commission's

order also directed the ALJ to issue a recommended determination (RD)

on the issues of remedy and bonding two weeks after the ID issued. On

December 2, 1996, the ALJ issued an ID finding a violation of section

337 by respondents. On December 12, 1996, respondents and the

Commission investigative attorney (IA) filed separate petitions for

review. Complainant Modine filed a petition for review contingent on

the Commission's decision either to grant another party's petition for

review or to review the ID on its own motion. All parties filed

responses to each petition on December 19, 1996. The ALJ issued his RD

on remedy and bonding on December 16, 1996.

Having examined the record in this investigation, including the ID,

the Commission has determined to review the reasoning supporting the

ALJ's finding that the proper estoppel point for the Cat condenser is

0.04822 inch. The Commission has determined not to review the ID in all

other respects. On review, the Commission will consider whether the

0.04822 inch measurement is properly considered law of the case, given

that the Commission's previous finding that the Cat condenser's

hydraulic diameter was 0.04822 inch was affirmed by the Federal Circuit

when it affirmed the Commission's findings on the scope and content of

the prior art. Modine, 75 F. 3d at 1549.

In connection with final disposition of this investigation, the

Commission may issue (1) an order that could result in the exclusion of

the subject articles from entry into the United States, and/or (2)

cease and desist orders that could result in respondents 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 are likely to do so. For background, see the

Commission Opinion in In the Matter of Certain Devices for Connecting

Computers via Telephone Lines, Inv. No. 337-TA-360.

If the Commission contemplates some form of remedy, it must

consider the effects of that remedy upon the public interest. The

factors the Commission will consider include the effect that an

exclusion order and/or cease and desist orders would have on (1) the

public health and welfare, (2) competitive conditions in the U.S.

economy, (3) U.S. production of articles that are like or directly

competitive with those that are

[[Page 3526]]

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 President has 60

days to approve or disapprove the Commission's action. During this

period, the subject articles would be entitled to enter the United

States under a 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.

WRITTEN SUBMISSIONS: The parties to the investigation are requested to

file written submissions on the issue under review. The submissions

should be concise and thoroughly referenced to the record in this

investigation, including, where necessary, references to specific

exhibits and testimony. Additionally, the parties to the investigation,

interested government agencies, and any other interested persons are

encouraged to file written submissions on the issues of remedy, the

public interest, and bonding. Such submissions should address the

December 16, 1996, recommended determination by the ALJ on remedy and

bonding. Complainant and the Commission investigative attorney are also

requested to submit proposed remedial orders for the Commission's

consideration. The written submissions and proposed remedial orders

must be filed no later than the close of business on January 30, 1997.

Reply submissions must be filed no later than the close of business on

February 6, 1997. No further submissions will be permitted unless

otherwise ordered by the Commission.

Persons filing written submissions must file with the Office of the

Secretary the original document and 14 true copies thereof on or before

the deadlines stated above. Any person desiring to submit a document

(or portion thereof) to the Commission in confidence must request

confidential treatment unless the information has already been granted

such treatment during the proceedings. All such requests should be

directed to the Secretary of the Commission and must include a full

statement of the reasons why the Commission should grant such

treatment. See 19 C.F.R. 201.6. Documents for which confidential

treatment is granted by the Commission will be treated accordingly. All

nonconfidential written submissions will be available for public

inspection at the Office of the Secretary.

This action is taken under the authority of section 337 of the

Tariff Act of 1930, as amended (19 U.S.C. 1337), and sections

210.45-.51 of the Commission's Rules of Practice and Procedure (19

C.F.R. 210.45-.51).

Copies of the public version of the ID and all other

nonconfidential 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, S.W., Washington, D.C.

20436, telephone 202-205-2000. Hearing impaired persons are advised

that information on the matter can be obtained by contacting the

Commission's TDD terminal at 202-205-1810.

Issued: January 16, 1997.

By order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 97-1638 Filed 1-22 97; 8:45 am]

BILLING CODE 7020-02-P