[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Notices]
[Pages 45446-45447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22786]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-334 (Remand)]


Notice of Issuance of Limited Exclusion Order and Termination of 
Investigation; Denial of Petition for Reconsideration

    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 issued a limited exclusion order in the above-captioned 
investigation and terminated the investigation. The Commission has also 
determined to deny respondents' petition for reconsideration of the 
Commission's January 16, 1997, determination that a violation of 
section 337 of the Tariff Act of 1930 has occurred. (62 FR 3525-6) 
(January 23, 1997).

FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
S.W., Washington, D.C. 20436, 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 (Japan), 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 respondents had infringed 
claims of Modine's patent, U.S. Letters Patent 4,998,580 (the '580 
patent). The Commission concluded the investigation with a finding of 
no infringement, and hence a determination of no violation of section 
337.
    Modine appealed the Commission's determination to the U.S. Court of 
Appeals for the Federal Circuit (Federal Circuit). 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 Commission's order also directed the ALJ to issue a recommended 
determination (RD) on the issues of remedy and bonding two weeks after 
the issuance of the ID. On December 2, 1996, Judge Luckern 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.
    On January 16, 1997, the Commission determined to review only the 
reasoning supporting the ALJ's determination that the range of 
equivalents was limited by the 0.4822 inch hydraulic diameter given for 
the prior art Cat condenser. 62 FR 3525-6 (Jan. 23, 1997). Since the 
Commission did not review the ID's determination of the range of 
equivalents, the ALJ's determination that there had been a violation 
with respect to two models of the accused condensers, the Mazda 929 and 
the Audi 90, became the Commission's determination by operation of law. 
19 C.F.R. 210.42(h). The Commission's notice of review requested 
written submissions on the issue under review, and on remedy, the 
public interest, and bonding. Submissions were received from Modine, 
the Showa respondents, the Mitsubishi respondents, and the IA on 
January 30, 1997. Complainant, the Showa respondents, and the IA filed 
reply submissions on February 6, 1997.
    On March 10, 1997, respondents filed a petition for reconsideration 
of the Commission's determination not to review the ALJ's determination 
that section 337 had been violated. Respondents' petition was based on 
the recent Supreme Court decision in Warner-Jenkinson, Inc. v. Hilton-
Davis Chemical Company, 117 S.Ct. 1040 (U.S. Mar. 3, 1997), involving 
the doctrine of equivalents. Respondents argued that the case is 
controlling authority which is contrary to the law applied by the 
Federal Circuit in the Modine decision. Complainant Modine and the IA 
filed oppositions to the petition on March 17, 1997. The Commission has 
determined to deny respondents' petition.
    After having reviewed the record in this investigation, including 
the written submissions of the parties, the Commission made its 
determinations on the issues of remedy, the public interest, and 
bonding. The Commission determined that the appropriate form of relief 
is a limited exclusion order prohibiting the unlicensed importation for 
consumption of infringing condensers, parts thereof, and products 
containing same manufactured and/or imported by or on behalf of the 
Showa respondents. The order applies to any of the affiliated 
companies, parents, subsidiaries, licensees, contractors, or other 
related business entities, or their successors or assigns of Showa.
    The Commission also determined that the public interest factors 
enumerated in 19 U.S.C. 1337(d) do not preclude the issuance of the 
limited exclusion order, and that the bond during the Presidential 
review period shall be in the amount of five percent of the entered 
value of the condensers in question. Condenser parts and products 
containing condensers are entitled to entry into the United States 
without bond during the Presidential review period.

[[Page 45447]]

    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and section 210.58 of 
the Commission's Interim Rules of Practice and Procedure (19 C.F.R. 
210.58)(1994).
    Copies of the Commission order, the Commission opinion in support 
thereof, 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 this matter can be obtained by 
contacting the Commission's TDD terminal on 202-205-1810.

    Issued: August 20, 1997.

    By order of the Commission.
Donna R. Koehnke,
 Secretary.
[FR Doc. 97-22786 Filed 8-26-97; 8:45 am]
BILLING CODE 7020-04-P