30256 Federal Register / Vol. 63, No. 106 /Wednesday, June 3, 1998 / Notices

INTERNATIONAL TRADE

COMMISSION

[Inv. No. 337–TA–396]

Certain Removable Electronic Cards

and Electronic Card Reader Devices

and Products Containing Same and

Components Thereof; Notice of

Commission Decision To Review

Portions of an Initial Determination and

Schedule for the Filing of Written

Submissions on the Issues Under

Review and on Remedy, the Public

Interest, and Bonding

AGENCY: U.S. International Trade

Commission.

ACTION: Notice.

SUMMARY: Notice is hereby given that

the U.S. International Trade

Commission has determined to review

certain portions of the initial

determination (ID) issued by the

presiding administrative law judge (ALJ)

on March 24, 1998, in the abovecaptioned investigation.

FOR FURTHER INFORMATION CONTACT:

Michael Diehl, Esq., Office of the

General Counsel, U.S. International

Trade Commission, 500 E Street, S.W.,

Washington, D.C. 20436, telephone

(202) 205–3095.

SUPPLEMENTARY INFORMATION: 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 of the Commission’s

Rules of Practice and Procedure (19

C.F.R. 210.43).

The Commission instituted this

investigation on April 2, 1997, based on

a complaint by Innovatron S.A.

(‘‘Innovatron’’) of Paris, France. The

complaint, as subsequently amended,

named two respondents—Thomson

Multimedia, S.A. of Paris, France; and

Thomson Consumer Electronics, Inc. of

Indianapolis, Indiana.

In its complaint, Innovatron alleged

that respondents violated section 337 by

importing into the United States and

selling in the United States after

importation television receivers and

receiver access cards that infringe claim

8 of Innovatron’s U.S. Letters Patent

4,404,464 (the ‘‘‘464 patent’’).

The presiding ALJ held an evidentiary

hearing from September 29 to October 7,

1997. On March 24, 1998, the ALJ

issued his final ID, in which he

concluded that there was violation of

section 337, based on the following

findings: (a) There have been

importations and sales after importation

of the accused devices; (b) claim 8 is not

invalid due to anticipation or

obviousness; (c) the accused devices

directly infringe claim 8 of the ‘464

patent; (d) respondents actively induced

infringement of and contributorily

infringed claim 8 of the ‘464 patent; and

(e) there is a domestic industry that

practices claim 8 of the ‘464 patent.

On April 6, 1998, respondents filed a

petition for review of the ID, arguing

that the ALJ erred in all of his adverse

findings relating to claim construction,

validity, infringement, and domestic

industry. Respondents also alleged that

the ALJ committed abuses of discretion

in his denial of several motions filed by

them. The Commission investigative

attorney (‘‘IA’’) also filed a petition for

review, alleging that the ALJ’s

construction of claim 8 was erroneous.

Complainant Innovatron filed on

April 13, 1998, a response in opposition

to the petitions filed by respondents and

the IA. The IA also filed a response to

respondents’ petition on that date,

supporting the respondents’ petition.

On April 1, 1998, the ALJ issued his

Recommended Determination (‘‘RD’’) on

Remedy and Bonding, in the event the

Commission concludes there is a

violation of section 337.

Having reviewed the record in this

investigation, including the parties’

written submissions, the Commission

determined not to review the ALJ’s

finding that 35 U.S.C. section 112,

paragraph 6 does not apply to claim 8

of the ‘464 patent, and his denials of

certain motions filed by respondents.

The Commission determined to review

the remainder of the ID.

On review, the Commission is

particularly interested in receiving

answers to the following questions:

(1) Regarding step (c) of claim 8, what

evidence of record bears on the issue of

the meaning of ‘‘tangential’’ in the

phrase ‘‘in a direction tangential to said

corresponding contact surfaces

* * *.’’ ? Does tangential mean only in

the direction parallel to the direction of

elongation of the contact surfaces, or

can it include any direction in the plane

of the area of contact between the

corresponding contact surfaces,

including directions transverse and

oblique to the direction of elongation of

the contact surfaces? Please comment on

whether dependent claim 7 indicates by

implication that ‘‘tangential,’’ as used in

independent claim 1, from which claim

7 depends, can include a direction

‘‘transverse’’ to the direction of

elongation of the contact surfaces.

(2) Does the manual removal and

reinsertion of the DSS access card in

response to an on-screen message

constitute a repetition of steps (a) and

(b) of claim 8? If the ‘‘displacing’’ of step

(c) is construed to mean manual

removal and reinsertion, then is step (c)

rendered superfluous? Would such a

construction be disfavored under Wright

Medical Technology, Inc. v. Osteonics

Corp., 122 F.3d 1440, 1444 (Fed. Cir.

1997) ?

(3) Do the three paragraphs of the

specification of the ‘464 patent at

column 8, lines 12–37 describe the

various aspects of a manual version of

the preferred embodiment, or does each

paragraph describe different alternative

arrangements in the preferred

embodiment, indicating in turn: (i) That

displacing can be motorized or manual,

(ii) that receipt of the portable electronic

card can be by a translationally movable

drawer or jointed shutter, and (iii) that

stopping can be performed by halting

the motor or by immobilizing the card

and the connection cross bar with

respect to one another? Is the latter

construction (i.e., the construction

involving three different alternative

arrangements in the preferred

embodiment) supported by the fact that

the paragraph describing the alternative

stopping arrangement applies regardless

of whether displacement is motorized or

manual? What significance, if any, is

there to the fact that the three

paragraphs expressly indicate that

displacing can be performed manually,

but do not indicate that stopping can be

performed manually?

(4) What evidence of record bears on

whether a human being can stop manual

displacement rapidly enough to prevent

the contact surfaces from moving back

out of alignment and electrical contact?

If the evidence of record indicates that

a human being cannot stop manual

displacement rapidly enough to prevent

the contact surfaces from moving back

out of alignment and electrical contact,

then is manual stopping consistent with

the claim language ‘‘stopping * * *

when,’’ considering that the

specification indicates that the purpose

of the patented method is to facilitate

‘‘rapid’’ contact and to limit the wearing

down of contact surfaces to that which

is ‘‘absolutely necessary’’

(5) For purposes of determining

whether there is contributory

infringement, is it more appropriate to

define the use of the accused devices in

terms of a general end use (such as to

view television programming) or in

terms of more specific uses (such as

testing for the direct or inverse

communications convention, testing for

proper alignment and electrical contact,

and decrypting television

programming)?

(a) If the first alternative (general end

use) is more appropriate, then do the

accused devices have a substantial noninfringing use? Specifically, must the
Federal Register / Vol. 63, No. 106 /Wednesday, June 3, 1998 / Notices 30257

accused devices have a use that is

different from the infringing use, or is it

sufficient that the accused devices have

a single use that is employed in a noninfringing manner a substantial portion

of the time?

(b) If the second alternative (specific

uses) is more appropriate, then do the

accused devices have a substantial noninfringing use or uses?

(6) Is Gemplus’ manufacture of smart

cards alone sufficient to satisfy the

technical prong of the domestic industry

requirement of section 337? Why or why

not? In answering this question, the

private parties are requested to

comment on the Commission

investigative attorney’s argument that

Gemplus’ manufacture of cards alone

sufficiently exploits the patent for the

purpose of the domestic industry

requirement.

(7) Discuss whether the following is

an appropriate construction of the

disputed terms of claim 8 of the ‘464

patent:

The claim terms are construed as in

the ID, except that:

(a) In the phrase ‘‘a predetermined

expected response’’:

(i) ‘‘[P]redetermined’’ means ‘‘to

determine, decide, or establish in

advance’’ and is not limited to

‘‘established at the time of the design of

the system;’’

(ii) ‘‘[E]xpected’’ means ‘‘predicted,’’

and is not limited to ‘‘not changing over

time.’’

(b) ‘‘[D]isplacing * * * in a direction

tangential to said corresponding contact

surfaces’’ means that the corresponding

contact surfaces are moved in any

direction in the plane of the area of

contact between the corresponding

contact surfaces of the removable article

and the electric device, including

directions parallel, transverse, and

oblique to the direction of elongation of

the contact surfaces, and the phrase

does not encompass the removal and

reinsertion of the removable article.

(c) ‘‘[S]topping * * * when’’ means

the instantaneous or near instantaneous

cessation of displacing such that

movement of the removable article

relative to the electric device is halted

before the corresponding contact

surfaces are moved from a position of

proper alignment and electrical contact

to a position out of such alignment and

electrical contact.

(8) Assuming that the disputed claim

terms are construed as set forth in

question 7 above, would claim 8 be

invalid as anticipated or obvious?

Would the accused devices directly

infringe claim 8? Would respondents be

actively inducing infringement? Would

respondents be contributorily

infringing? Would Gemplus’ domestic

activities utilizing the smart card

manufacturing and testing equipment

discussed at pages 123–131 of the ID

satisfy the technical prong of the

domestic industry requirement of

section 337?

In connection with the 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 information, see the

Commission Opinion, Certain Devices

for Connecting Computers via

Telephone Lines, Inv. No. 337–TA–360,

USITC Publication 2843 (Dec. 1994).

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

a bond, in an amount to be 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 issues under review. The

submissions should be concise and

thoroughly referenced to the record in

this investigation, including references

to 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 April 1, 1998 recommended

determination of the ALJ. 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 June 11,

1998. Reply submissions must be filed

no later than June 18, 1998. 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 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 (19 U.S.C. 1337) and §§ 210.42–

.45 of the Commission’s Rules of

Practice and Procedure (19 C.F.R.

210.42–.45).

Copies of the public version of the

ALJ’s 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. Hearingimpaired persons are advised that

information on this matter can be

obtained by contacting the

Commission’s TDD terminal on 202–

205–1810. General information

concerning the Commission may also be

obtained by accessing its Internet server

(http://www.usitc.gov).
30258 Federal Register / Vol. 63, No. 106 /Wednesday, June 3, 1998 / Notices

Issued: May 29, 1998.

By order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 98–14750 Filed 6–2–98; 8:45 am]

BILLING CODE 7020–02–P

INTERNATIONAL TRADE

COMMISSION

[Investigation 332–343]

Annual Statistical Report on U.S.

Imports of Textiles and Apparel

AGENCY: United States International

Trade Commission.

ACTION: Discontinuation of reports and

termination of investigation.

EFFECTIVE DATE: May 26, 1998.

SUMMARY: In June 1993, the Commission

initiated investigation No. 332–343 for

the purpose of compiling and

publishing three annual statistical

reports on U.S. imports of textiles and

apparel covered by the Multifiber

Arrangement (MFA). Pursuant to this

investigation, the notice of which was

published in the Federal Register of

June 23, 1993 (58 F.R. 34064), the

Commission published annual reports

on U.S. imports of textiles and apparel

for the years 1992, 1993, and 1994. In

July 1996, after receiving numerous

requests from the public for the report,

the Commission decided to continue

publishing the reports for three

additional years, the notice of which

was published in the Federal Register of

July 24, 1996 (61 F.R. 38472), after

which it would review the question of

whether to continue issuing such

reports. The Commission published the

last of these reports in April 1998.

The Commission has decided to

discontinue this series of reports and to

terminate the investigation. The import

data published by the Commission in

these reports are now readily available

on the Internet server of the U.S.

Department of Commerce, Office of

Textiles and Apparel (OTEXA), at http:/

/otexa.ita.doc.gov. OTEXA also provides

the data on CD-ROMs, which are

prepared on a monthly basis. For

information on subscribing to the CDROM service, please call OTEXA at

202–482–3400 or write the U.S.

Department of Commerce, Office of

Textiles and Apparel, Room 3100, 14th

and Constitution Avenue NW,

Washington, DC 20230.

FOR FURTHER INFORMATION: Information

on the Commission’s most recent report

may be obtained from Robert W.

Wallace, Office of Industries (202–205–

3458). The media should contact

Margaret O’Laughlin, Public Affairs

Officer, Office of External Relations

(202–205–1819). Hearing impaired

individuals are advised that information

on this matter can be obtained by

contacting the TDD terminal on 202–

205–1810.

The Commission’s report, Annual

Statistical Report on U.S. Imports of

Textiles and Apparel: 1997 (USITC

publication 3102, April 1998), is

available on the Commission’s Internet

server at http://www.usitc.gov. A

printed copy may be requested by

writing the Office of the Secretary, U.S.

International Trade Commission, 500 E

Street SW, Washington, DC, 20436,

calling them at 202–205–1809, or

sending them a fax at 202–205–2104.

Issued: May 27, 1998.

By order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 98–14749 Filed 6–2–98; 8:45 am]

BILLING CODE 7020–02–P

INTERNATIONAL TRADE

COMMISSION

[Investigation Nos. 332–350 and 332–351]

Monitoring of U.S. Imports of

Tomatoes; Monitoring of U.S. Imports

of Peppers

AGENCY: United States International

Trade Commission.

ACTION: Publication of monitoring

reports in 1998.

EFFECTIVE DATE: May 22, 1998.

FOR FURTHER INFORMATION CONTACT: For

general information, Timothy McCarty

(202–205–3324) or Lowell Grant (202–

205–3312), Agricultural and Forest

Products Division, Office of Industries,

or for information on legal aspects,

William Gearhart (202–205–3091),

Office of the General Counsel, U.S.

International Trade Commission.

Hearing impaired persons can obtain

information on these studies by

contacting the Commission’s TDD

terminal on (202) 205–1810.

Background

Section 316 of the North American

Free-Trade Agreement Implementation

Act (NAFTA Implementation Act), 19

U.S.C. 3381, directs the Commission to

monitor imports of fresh or chilled

tomatoes (HTS heading 0702.00) and

fresh or chilled peppers, other than chili

peppers (HTS subheading 0709.60.00),

until January 1, 2009, as if a request for

such monitoring had been made under

section 202(d) of the Trade Act of 1974

(19 U.S.C. 2252(d)), for purposes of

expediting an investigation concerning

provisional relief under section 202 of

the Trade Act of 1974. In response, the

Commission instituted investigation No.

332–350, Monitoring of U.S. Imports of

Tomatoes (59 F.R. 1763) and

investigation No. 332–351, Monitoring

of U.S. Imports of Peppers (59 F.R.

1762).

Although section 316 of the NAFTA

Implementation Act does not require the

Commission to publish reports on the

results of its monitoring activities, the

Commission has endeavored to do so in

those years in which it was not

conducting an investigation under other

statutory authority with respect to such

products. Thus, no monitoring reports

were published in 1996 when the

Commission conducted investigation

No. TA–201–66, Fresh Tomatoes and

Bell Peppers (61 F.R. 13875), under

section 202(b) of the Trade Act of 1974

(19 U.S.C. 2252(b)); and antidumping

investigation No. 731–TA–747

(preliminary), Fresh Tomatoes from

Mexico (61 F.R. 15968), under section

733(a) of the Tariff Act of 1930 (19

U.S.C. 1673b(a)). The Commission made

a negative injury determination in the

section 201 investigation on July 2,

1996; the Commission’s antidumping

investigation was suspended, effective

November 1, 1996, following the signing

of a suspension agreement.

The Commission plans to publish

both monitoring reports in September

1998.

Issued: May 27, 1998.

By order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 98–14748 Filed 6–2–98; 8:45 am]

BILLING CODE 7020–02–P

DEPARTMENT OF LABOR

Occupational Safety and Health

Administration

[Docket No. H–372]

RIN 1218–AB58

Metalworking Fluids Standards

Advisory Committee: Notice of Meeting

AGENCY: Occupational Safety and Health

Administration (OSHA), Labor.

ACTION: Metalworking Fluids Standards

Advisory Committee: Notice of meeting.

SUMMARY: The Metalworking Fluids

Standards Advisory Committee

(MWFSAC), established under section 7

of the Occupational Safety and Health

Act of 1970 to advise the Secretary of

Labor on appropriate actions to protect