[Federal Register Volume 82, Number 200 (Wednesday, October 18, 2017)]
[Notices]
[Pages 48528-48529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22524]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1005]


Certain L-Tryptophan, L-Tryptophan Products, and Their Methods of 
Production; Commission Determination to Review a Final Initial 
Determination Finding No Section 337 Violation; Schedule for Filing 
Written Submissions on the Issues Under Review and on Remedy, the 
Public Interest, and Bonding

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 a final initial determination 
(``FID'') of the presiding administrative law judge (``ALJ'') finding 
no violation of section 337 of the Tariff Act of 1930, as amended. The 
Commission requests certain briefing from the parties on the issues 
under review, as indicated in this notice. The Commission also requests 
briefing from the parties and interested persons on the issues of 
remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-4716. 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 https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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 Investigation No. 
337-TA-1005 on June 14, 2016, based on a complaint filed by 
Complainants Ajinomoto Co., Inc. of Tokyo, Japan and Ajinomoto 
Heartland Inc. of Chicago, Illinois (collectively, ``Ajinomoto'' or 
``Complainants''). See 81 FR 38735-6 (June 14, 2016). The complaint, as 
supplemented, alleges violations of section 337 of the Tariff Act of 
1930, as amended (19 U.S.C. 1337), based upon the importation into the 
United States, the sale for importation, and the sale within the United 
States after importation of certain L-tryptophan, L-tryptophan 
products, and their methods of production, by reason of infringement of 
certain claims of U.S. Patent No. 7,666,655 (``the '655 patent'') and 
U.S. Patent No. 6,180,373 (``the '373 patent''). Id. The notice of 
investigation identified CJ CheilJedang Corp. of Seoul, Republic of 
Korea; CJ America, Inc. of Downers Grove, Illinois; and PT CheilJedang 
Indonesia of Jakarta, Indonesia (collectively ``CJ'' or 
``Respondents'') as respondents in this investigation. See id. The 
Office of Unfair Import Investigations is not a party to the 
investigation.
    On August 11, 2017, the ALJ issued his FID finding no violation of 
section 337. Specifically, the FID finds that: (1) Respondents' accused 
products do not infringe the asserted claims of the '373 or the '655 
patents either literally or under the doctrine of equivalents; (2) 
claim 10 of the '373 patent is invalid for indefiniteness and lack of 
written description; (3) claim 20 of the '655 patent is invalid for 
lack of written description; and (4) Complainants' products do not 
satisfy the technical prong of the domestic industry requirement with 
respect to the '655 or the '373 patents. In addition, should the 
Commission find a violation of section 337, the RD recommends that the 
Commission issue: (1) A limited exclusion order against Respondents' 
accused products; and (2) a cease and desist order against Respondent 
CJ America.
    The Commission has determined to review the FID in its entirety. In 
connection with its review, the parties are requested to brief their 
positions with reference to the applicable law and the evidentiary 
record regarding the questions provided below:
    1. Please explain, with textual support from the McKitrick 
reference (JX-5), discussed at column 6, lines 29-37 of the '373 
patent, whether McKitrick discloses measuring serine sensitivity via a 
forward assay, a reverse assay, or both.
    2. Please explain whether and why the specific conditions and 
methods of McKitrick (JX-5) and Bauerle (JX-37), discussed in the '373 
patent specification, were not closely followed to establish 
infringement of the '373 patent. Please provide factual as well as 
legal support to explain whether the methods employed provide adequate 
proof of infringement.
    3. Assuming prosecution history estoppel arising from the amendment 
of the term a ``protein that has several amino acid deletions, 
substitutions, insertions, or additions as compared to SEQ ID NO:2'' 
during prosecution of the '655 patent, is relevant to the scope of the 
term ``said protein consists of the amino acid sequence of SEQ ID NO: 
2'' in claim 9, please explain whether or not any estoppel presumption 
is rebutted.
    4. Please explain the relevance of Exhibit CX-487 (Random House 
Dictionary definition of ``replace'') on the claim construction of the 
term ``replacing the native promoter'' in the '655 patent claims and 
include a copy of the CX-487 exhibit.
    In addition, 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(s) 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 
likely to do so. For background, see Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 
(Dec. 1994) (Comm'n Op.).
    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.

[[Page 48529]]

    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). 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 if a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the questions identified in this notice. 
Parties to the investigation, interested government agencies, and any 
other interested parties are encouraged to file written submissions on 
the issues of remedy, the public interest, and bonding. Such 
submissions should address the recommended determination by the ALJ on 
remedy and bonding. Complainants are also requested to submit proposed 
remedial orders for the Commission's consideration. Complainants are 
also requested to state the date that the asserted patents expire and 
the HTSUS numbers under which the accused products are imported. 
Complainants are further requested to supply the names of known 
importers of the products at issue in this investigation.
    Written submissions and proposed remedial orders must be filed no 
later than close of business on October 27, 2017. Reply submissions 
must be filed no later than the close of business on November 3, 2017. 
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 
electronically on or before the deadlines stated above and submit eight 
(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 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-1005'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions 
regarding filing should contact the Secretary (202-205-2000).
    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. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. All 
information, including confidential business information and documents 
for which confidential treatment is properly sought, submitted to the 
Commission for purposes of this Investigation may be disclosed to and 
used: (i) By the Commission, its employees and Offices, and contract 
personnel (a) for developing or maintaining the records of this or a 
related proceeding, or (b) in internal investigations, audits, reviews, 
and evaluations relating to the programs, personnel, and operations of 
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. 
government employees and contract personnel,\1\ solely for 
cybersecurity purposes. All non-confidential written submissions will 
be available for public inspection at the Office of the Secretary and 
on EDIS.
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    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
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    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 part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.

    Issued: October 12, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-22524 Filed 10-17-17; 8:45 am]
 BILLING CODE 7020-02-P