Daily Rules, Proposed Rules, and Notices of the Federal Government
The Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on July 11, 2011, based on two complaints filed by OSRAM GmbH of Munich, Germany (“OSRAM”), alleging,
The evidentiary hearing in this investigation was held from April 26 through May 2, 2012. On July 9, 2012, the ALJ issued the final ID finding a violation of section 337. The ALJ issued his recommended determination on remedy and bonding on July 23, 2012. Respondent LG filed a timely petition for review of various portions of the final ID, and complainant OSRAM filed a timely response to the petition.
Having examined the record in this investigation, including the ALJ's final ID, the petition for review, and the response thereto, the Commission has determined to review:
(I) The ALJ's determination that OSRAM met the economic prong of the domestic industry requirement with respect to both asserted patents;
(II) With respect to the `283 patent:
(a) the ALJ's determination that claims 1, 3, 4, 6, 8, 22, 24, 25, 26, 29, 32, 33, and 34 of the `283 patent are not rendered obvious in view of prior art references Japanese Patent (“JP”) 345, JP 609, JP 794, and Hewes;
(b) the ALJ's determination that claim 34 of the `283 patent is not rendered obvious in view of prior art references Nikkei Article, Stevenson, Blasse, and Hewes;
(c) the ALJ's determination that claim 34 of the `283 patent is not rendered obvious in view of prior art references JP 609, Nikkei Article, Blasse, and Hewes.
The Commission has determined not to review the remainder of the final ID. The parties are requested to brief their positions on only the following issues, with reference to the applicable law and the evidentiary record:
(1) With respect to the economic prong of the domestic industry requirement:
(a) Please identify the record evidence showing that the products on which OSRAM relies for the purpose of demonstrating that it met the economic prong of the domestic industry requirement are protected by the `283 patent, as required by 19 U.S.C. 1337(a)(3);
(b) Please identify the record evidence showing that, with respect to its products protected by the `283 patent, OSRAM made qualifying investments in the `283 patent's exploitation, including engineering, research and development, as required by 19 U.S.C. 1337(a)(3)(C);
(c) Please identify the record evidence showing that OSRAM's qualifying investment in the `283 patent's exploitation, including engineering, research and development, with respect to OSRAM's products protected by the `283 patent is substantial, as required by 19 U.S.C. 1337(a)(3)(C).
(2) With respect to the `283 patent:
(a) Does the record evidence, including the disclosure in JP 609 (
(b) Does the record evidence, including the disclosure in the Nikkei Article (
(c) Assuming the evidence demonstrates that JP 609 or the Nikkei Article discloses partial conversion, please identify the record evidence that demonstrates that one of ordinary skill in the art would have been motivated to combine: (i) JP 345 (
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders 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 are likely to do so. For background, see
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 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 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.
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
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.
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 sections 210.42-.46 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-.46).
By order of the Commission.