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[Federal Register Volume 74, Number 83 (Friday, May 1, 2009)]
[Notices]
[Pages 20345-20346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9997]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-632]

 In the Matter of Certain Refrigerators and Components Thereof; 
Notice of Commission Decision To Review in Its Entirety; A Final 
Initial Determination Finding No Violation of Section 337

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 the presiding administrative law 
judge's (``ALJ'') final initial determination (``ID'') finding no 
violation of Section 337 of the Tariff Act of 1930 in the above-
captioned investigation.

FOR FURTHER INFORMATION CONTACT: Jean Jackson Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3104. Copies of the 
ALJ's IDs and all other 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: On February 21, 2008, the Commission voted 
to institute this investigation, based on a complaint filed by 
Whirlpool Patents Company of St. Joseph, Michigan; Whirlpool 
Manufacturing Corporation of St. Joseph, Michigan; Whirlpool 
Corporation of Benton Harbor, Michigan, and Maytag Corporation of 
Benton Harbor, Michigan (collectively, ``Whirlpool''). The complaint, 
as supplemented, alleges violations of section 337 based upon the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain 
refrigerators and components thereof that infringe certain claims of 
U.S. Patent Nos. 6,082,130 (``the `130 patent); 6,810,680 (``the `680 
patent''); 6,915,644 (``the `644 patent''); 6,971,730; and 7,240,980. 
Whirlpool named LG Electronics, Inc.; LG Electronics, USA, Inc.; and LG 
Electronics Monterrey Mexico, S.A., De, CV (collectively, ``LG'') as 
respondents. The complaint, as supplemented, further alleges that an 
industry in the United States exists as required by subsection (a)(2) 
of section 337 and requested that the Commission issue an exclusion 
order and cease and desist orders.
    On September 11, 2008, Whirlpool and LG filed a joint motion 
seeking termination of this investigation with respect to the `680 
patent and the `644 patent on the basis of a settlement agreement. On 
September 25, 2008, the ALJ issued an ID, Order No. 10, terminating the 
investigation, in part, as to the `680 and `644 patents. No petitions 
for review were filed. On October 27, 2008, the Commission determined 
not to review Order No. 10.
    On October 17, 2008, Whirlpool filed a motion for summary 
determination that it had satisfied the importation requirement. On 
November 20, 2008, the ALJ issued the subject ID, Order No. 14, 
granting complainant's motion for summary determination of importation. 
No petitions for review were filed. On December 15, 2008, the 
Commission issued notice that it had determined not to review Order No. 
14.
    On July 24, 2008, Whirlpool filed a motion seeking leave to amend 
the complaint and notice of investigation to (1) remove references to 
patents that had been withdrawn from this investigation; (2) add a 
reference to a non-exclusive license that relates to two patents at 
issue; and (3) update the current state of the domestic industry. On 
November 25, 2008, the ALJ issued Order No. 15, in which he granted 
Whirlpool's motion as to (1) and (3) above and denied it with respect 
to (2). No petitions for review were filed. The Commission determined 
not to review the subject ID on December 15, 2008.
    On February 26, 2009, the ALJ issued a final ID, in which he found 
no violation of Section 337. On March 11, 2009, Whirlpool filed a 
petition for review, and LG filed a contingent petition for review. 
Whirlpool, LG and OUII filed responses. The Commission has determined 
to review the final ID and requests briefing by the parties to the 
investigation on the issue of claim construction. In particular, the 
Commission would like the parties to address:
    1. Do the ordinary and customary meanings of the following terms 
differ from the meanings ascribed to them by the inventors' testimony: 
``freezer compartment,'' ``disposed within,'' ``mounted on,'' ``having 
an access opening and a closure member for closing the access 
opening,'' and ``ice storage bin having a bottom opening.'' Please 
discuss with reference to dictionary definitions and expert testimony.
    2. Are the phrases ``mounted on'' and ``disposed within'' mutually 
exclusive in the context of claim 1 of the `130 patent? Are either or 
both of these terms synonymous with ``installed''?
    3. How does the prosecution history inform the claim construction, 
in terms of disclaimer and interpretation?
    4. Would one of ordinary skill in the art understand a space 
defined by a cabinet having an access opening but not having a closure 
member to mean a ``freezer compartment,'' given that temperatures 
within such a compartment cannot be reduced to freezing?
    5. In construing claim 1, the parties dispute whether the ``closure 
member'' is part of the freezer compartment. What conclusions can be 
drawn from the term ``freezer compartment closure member'' appearing in 
dependent claim 9? What conclusions, if any, can be drawn from a 
comparison of claim 1 and independent claim 10, the latter clearly 
identifying the closure member as part of the refrigerator.
    6. To what extent should the Commission consider inventor testimony 
when construing the claims? See Hoechst Celanese Corp. v. BP Chems. 
Ltd., 78 F.3d 1575, 1580 (``Markman requires us to give no deference to 
the testimony of the inventor about the meaning of the claims.'').
    7. For parties proposing additional or different meanings on claim 
construction, do these point to a different result for infringement, 
validity, or domestic industry? Please explain with regard to each 
relevant

[[Page 20346]]

refrigerator model. Responses should rely on evidence of record.
    8. Specifically, with respect to infringement, respond to the 
following: Does the closure member have to be the closure member to the 
access to the freezer compartment? If so, can a self-contained ice 
maker within a fresh-food compartment qualify as a freezer for which 
there is a closure member within the meaning of claim 1? Does it matter 
if both the ice maker and the storage unit are in the closure member?
    Opening submissions must be filed no later than close of business 
on May 8, 2009. Reply submissions must be filed no later than the close 
of business on May 15, 2009. No further submissions on any of these 
issues will be permitted unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
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 CFR 210.6. Documents 
for which confidential treatment by the Commission is sought will be 
treated accordingly. All non-confidential written submissions will be 
available for public inspection at the Office of the Secretary.
    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 210.42-46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).
    By order of the Commission.

Marilyn R. Abbott,
Secretary to the Commission.

    Issued: April 27, 2009.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E9-9997 Filed 4-30-09; 8:45 am]
BILLING CODE 7020-02-P
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