[Federal Register Volume 74, Number 151 (Friday, August 7, 2009)]
[Notices]
[Page 39711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18866]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-623]


In the Matter of Certain R-134a Coolant (Otherwise Known as 
1,1,1,2-Tetrafluoroethane); Notice of Commission Determination To 
Reverse the Remand Determination of the Presiding Administrative Law 
Judge and To Terminate the Investigation In Its Entirety With a Finding 
of No Violation

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 reverse the conclusion reached in the 
Remand Determination (``RID'') issued by the presiding administrative 
law judge (``ALJ'') in the above-captioned investigation that the only 
remaining asserted claim of U.S. Patent No. 5,559,276 (``the `276 
patent'') is not obvious. The Commission finds that the claim would 
have been obvious to one of ordinary skill in the art and is therefore 
invalid. The Commission affirms the RID's conclusion that the asserted 
claim was not anticipated.

FOR FURTHER INFORMATION CONTACT: Paul M. Bartkowski, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-5432. 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 December 31, 2007, based on a complaint filed by INEOS Fluor 
Holdings Ltd., INEOS Fluor Ltd., and INEOS Fluor Americas L.L.C. 
(collectively, ``Ineos''). The complaint alleged violations of section 
337 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 certain R-134a coolant (otherwise 
known as 1,1,1,2-tetrafluoroethane) by reason of infringement of 
various claims of United States Patent No. 5,744,658. Complainants 
subsequently added allegations of infringement with regard to United 
States Patent Nos. 5,382,722 and the `276 patent, but only claim 1 of 
the `276 patent remains at issue in this investigation. The complaint 
named two respondents, Sinochem Modern Environmental Protection 
Chemicals (Xi'an) Co., Ltd. and Sinochem Ningbo Ltd. Two additional 
respondents were subsequently added: Sinochem Environmental Protection 
Chemicals (Taicang) Co., Ltd. and Sinochem (U.S.A.) Inc. The four 
respondents are collectively referred to as ``Sinochem.''
    On December 1, 2008, the ALJ issued his final ID, finding that 
Sinochem had violated section 337. He concluded that respondents' 
accused process infringed claim 1 of the `276 patent and that the 
domestic industry requirement had been met. He also found that claim 1 
was not invalid and that it was not unenforceable. The Commission 
determined to review the ALJ's final ID with regard to the effective 
filing date of the asserted claim, anticipation, and obviousness. By 
order dated January 30, 2009, the Commission supplemented the ALJ's 
reasoning regarding the effective filing date, and remanded the 
investigation to the ALJ to conduct further proceedings related to 
anticipation and obviousness. To accommodate the remand, the Commission 
extended the target date to June 1, 2009 and instructed the ALJ to 
issue the RID by April 1, 2009.
    The ALJ issued the RID on April 1, 2009. The RID concluded that 
Sinochem's arguments concerning anticipation and obviousness were 
waived under the ALJ's ground rules and, alternatively, that the 
arguments were without merit. Sinochem filed a petition for review of 
the RID. The Commission investigative attorney (``IA'') and Ineos 
opposed Sinochem's petition.
    On June 1, 2009, the Commission determined to review the RID in its 
entirety and requested briefing on certain questions. The Commission 
determined to extend the target date to August 3, 2009, to accommodate 
its review.
    Having examined the record of this investigation, including the 
ALJ's RID and the submissions of the parties, the Commission has 
determined to reverse the conclusion of nonobviousness of claim 1 of 
the `276 patent in the RID. In so finding, the Commission has 
determined to rely on certain party admissions and other evidence as to 
the state of the prior art. The Commission has determined to take no 
position on the RID's conclusions relating to obviousness arguments 
based on prior art references identified in the Commission's remand 
instructions, including the RID's conclusions on whether arguments as 
to those references have been waived. The Commission has also 
determined not to rely on the RID's conclusions as to anticipation and 
waiver of anticipation arguments. The Commission has further determined 
to deny Sinochem's motion to strike portions of Ineos's response to its 
written submission and for leave to file a reply to that submission. 
The Commission has determined also to deny Sinochem's motion to conform 
pleadings to evidence taken. These findings terminate the Commission's 
investigation.
    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 Rule 210.45 of the Commission's Rules of Practice and Procedure (19 
CFR Part 210.45).

    Issued: August 3, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E9-18866 Filed 8-6-09; 8:45 am]
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