80 FR 22549 - Certain Crawler Cranes and Components Thereof; Commission's Final Determination; Issuance of a Limited Exclusion Order and Cease and Desist Order; Termination of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 80, Issue 77 (April 22, 2015)

Page Range		22549-22550
FR Document		2015-09280

Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has (1) issued a limited exclusion order prohibiting importation of certain crawler cranes and components thereof and (2) issued a cease and desist order directed to the domestic respondent.

Federal Register, Volume 80 Issue 77 (Wednesday, April 22, 2015)

[Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)]
[Notices]
[Pages 22549-22550]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-09280]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-887]


Certain Crawler Cranes and Components Thereof; Commission's Final 
Determination; Issuance of a Limited Exclusion Order and Cease and 
Desist Order; Termination of the Investigation

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 found a violation of section 337 in this investigation 
and has (1) issued a limited exclusion order prohibiting importation of 
certain crawler cranes and components thereof and (2) issued a cease 
and desist order directed to the domestic respondent.

FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2737. 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 (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 July 17, 2013, based on a complaint filed by Manitowoc Cranes, LLC 
of Manitowoc, Wisconsin (``Manitowoc''). 78 FR 42800-01 (July 17, 
2013). The complaint alleges violations of subsection (a)(1)(B) of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337'') in the importation into the United States, the sale 
for importation, and the sale within the United States after 
importation of certain crawler cranes and components thereof, by reason 
of infringement of U.S. Patent Nos. 7,546,928 (``the '928 patent'') and 
7,967,158 (``the '158 patent''), and that an industry in the United 
States exists or is in the process of being established as required by 
subsection (a)(2) of section 337. The complaint further alleges 
violations of subsection (a)(1)(A) of section 337 by reason of trade 
secret misappropriation, the threat or effect of which is to destroy or 
substantially injure an industry in the United States or to prevent the 
establishment of such an industry. The Commission's notice of 
investigation named Sany Heavy Industry Co., Ltd. of Changsha, China, 
and Sany America, Inc. of Peachtree City, Georgia (collectively, 
``Sany'') as respondents. The Office of Unfair Import Investigations 
(``OUII'') was also named as a party.
    On July 11, 2014, the ALJ issued his final initial determination 
(``ID'') finding a violation of section 337 with respect to claims 1, 
2, 5, 8, and 23-26 of the '928 patent and misappropriation of

[[Page 22550]]

Trade Secret Nos. 1, 6, 14, and 15. The ALJ further found no violation 
of section 337 with respect to claims 6, 10, and 11 of the '928 patent, 
claim 1 of the '158 patent, and Trade Secret Nos. 3 and 4.
    On July 28, 2014, OUII, Manitowoc, and Sany each filed a petition 
for review. On August 5, 2014, the parties replied to the respective 
petitions for review.
    On September 19, 2014, the Commission determined to review the 
final ID and solicited briefing from the parties on questions 
concerning violation, remedy, bonding, and the public interest. 79 Fed. 
Reg. 57566-68. Specifically, the Commission determined to review the 
ALJ's findings with respect to: (1) Importation of the accused 
products; (2) infringement of the asserted patents; (3) estoppel; (4) 
the technical prong of the domestic industry requirement; and (5) the 
asserted trade secrets. The parties provided initial submissions to the 
Commission's questions on October 1, 2014, and responsive submissions 
on October 8, 2014.
    On December 3, 2014, the Commission determined to request 
additional briefing. Notice (December 3, 2014). On December 12, 2014, 
the parties filed initial submissions in response to the Commission's 
notice and filed response submissions on December 19, 2014.
    After considering the final ID, written submissions, and the record 
in this investigation, the Commission has determined to affirm-in-part 
and reverse-in-part the final ID and to terminate the investigation 
with a finding of violation of section 337. Specifically, the 
Commission: (1) Finds the asserted method claims of the '928 patent are 
not infringed; (2) finds the asserted method claim of the '158 patent 
is not infringed; (3) finds that claims 23-26 of the '928 patent are 
infringed by at least one product; (4) takes no position on the ALJ's 
estoppel findings; (5) finds that the domestic industry requirement has 
been met; and (6) finds Trade Secret Nos. 1, 3, 4, 6, 14, and 15 are 
protectable and have been misappropriated. The Commission has issued 
its opinion setting forth the reasons for its determination. 
Commissioner Kieff concurs in the outcome and has filed an opinion 
concurring in result and dissenting in part.
    Having found a violation of section 337 in this investigation, the 
Commission has determined that the appropriate form of relief is: (1) A 
limited exclusion order prohibiting the unlicensed entry of certain 
crawler cranes and components thereof that (a) infringe one or more of 
claims 23-26 of the '928 patent and are manufactured by, or on behalf 
of, or are imported by or on behalf of the Respondents or any of their 
affiliated companies, parents, subsidiaries, agents, or other related 
business entities, or their successors or assigns; and/or (b) are 
manufactured abroad by or on behalf of, or imported by or on behalf of, 
Respondents or any of their affiliated companies, parents, 
subsidiaries, or other related business entities, or their successors 
or assigns, using any of Trade Secret Nos. 1, 3, 4, 6, 14, and 15, for 
a period of ten (10) years; and (2) a cease and desist order 
prohibiting the domestic respondent from conducting any of the 
following activities in the United States: Importing, selling, 
marketing, advertising, distributing, transferring (except for 
exportation), and soliciting United States, agents or distributors for, 
certain crawler cranes and components therefore manufactured using any 
of Trade Secret Nos. 1, 3, 4, 6, 14, and 15.
    The Commission has also determined that the public interest factors 
enumerated in section 337(d) and (f) (19 U.S.C. 1337(d) and (f)) do not 
preclude issuance of the limited exclusion order or a cease and desist 
order. Finally, the Commission has determined that a bond during the 
period of presidential review (19 U.S.C. 1337(j)) shall be in the 
amount of 100 percent (100%) of the entered value of the imported 
articles that are subject to the limited exclusion order or cease and 
desist order. The Commission's orders and opinion were delivered to the 
President and to the United States Trade Representative on the day of 
their issuance.
    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: April 16, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-09280 Filed 4-21-15; 8:45 am]
BILLING CODE 7020-02-P

Federal Register / Vol. 80, No. 77 / Wednesday, April 22, 2015 / Notices 22549

Washington, DC, and by Ömür Yarsuvat, assessment and calculation of attorneys’ and (2) issued a cease and desist order
an attorney in Istanbul, Turkey. The ALJ fees and costs against Organik Kimya. directed to the domestic respondent.
denied Organik Kimya’s motion to The Commission has determined to FOR FURTHER INFORMATION CONTACT:
terminate the investigation based upon affirm, with modification, the ALJ’s Amanda Pitcher Fisherow, Office of the
a consent order stipulation. determination that Finnegan be held General Counsel, U.S. International
On October 28, 2014, Organik Kimya jointly and severally liable with Organik Trade Commission, 500 E Street SW.,
filed a petition for review of the Kimya for those sanctions. The Washington, DC 20436, telephone (202)
sanctions ID. The same day, Finnegan Commission has determined to reverse 205–2737. Copies of non-confidential
and Yarsuvat filed separate motions the sanctions ID to the extent that it documents filed in connection with this
before the Commission to intervene in imposed joint and several liability on investigation are or will be available for
the investigation for the purpose of Mr. Yarsuvat. The Commission’s inspection during official business
contesting joint liability for the reasoning in support of these hours (8:45 a.m. to 5:15 p.m.) in the
monetary sanction. Finnegan and determinations is provided in an Office of the Secretary, U.S.
Yarsuvat also filed provisional petitions accompanying Commission opinion. International Trade Commission, 500 E
for review of the sanctions ID. On The investigation is terminated. Street SW., Washington, DC 20436,
November 10, 2014, Finnegan filed a Commissioner Schmidtlein dissents, telephone (202) 205–2000. General
motion for leave to file a reply in for the reasons to be set forth in her information concerning the Commission
support of its motion to intervene, separate opinion, as to the may also be obtained by accessing its
which Dow opposed. Commission’s determination on Internet server (http://www.usitc.gov).
On December 16, 2014, the sanctions for Organik Kimya’s counsel. The public record for this investigation
Commission granted the motions to She otherwise joins the Commission’s may be viewed on the Commission’s
intervene and determined to review the determination as to Organik Kimya’s electronic docket (EDIS) at http://
sanctions ID. The Commission notice default, the Commission remedial edis.usitc.gov. Hearing-impaired
granting review solicited further briefing orders to be issued, and the liability of persons are advised that information on
on two questions concerning sanctions Organik Kimya for fees and costs. this matter can be obtained by
and on remedy, the public interest, and The Commission’s limited exclusion contacting the Commission’s TDD
bonding. order and opinion were delivered to the
On December 30, 2014, the parties— terminal on (202) 205–1810.
President and the United States Trade SUPPLEMENTARY INFORMATION: The
Dow, Organik Kimya, Finnegan, and
Representative on the day of their Commission instituted this investigation
Yarsuvat—filed opening briefs in
issuance. on July 17, 2013, based on a complaint
response to the Commission notice.
The authority for the Commission’s filed by Manitowoc Cranes, LLC of
(Organik Kimya filed two briefs.) On
determination is contained in section Manitowoc, Wisconsin (‘‘Manitowoc’’).
January 7, 2015, the parties filed replies.
337 of the Tariff Act of 1930, as 78 FR 42800–01 (July 17, 2013). The
(Dow filed two replies.)
Having examined the record of this amended (19 U.S.C. 1337), and in Part complaint alleges violations of
investigation, including the ALJ’s 210 of the Commission’s Rules of subsection (a)(1)(B) of section 337 of the
sanctions ID, as well as the petitions to Practice and Procedure (19 CFR part Tariff Act of 1930, as amended, 19
the Commission and their replies, and 210). U.S.C. 1337 (‘‘section 337’’) in the
the briefs to the Commission and their By order of the Commission. importation into the United States, the
replies, the Commission has determined Issued: April 17, 2015. sale for importation, and the sale within
to affirm the ID’s finding of Organik Lisa R. Barton, the United States after importation of
Kimya in default. See 19 U.S.C. 1337(h); Secretary to the Commission. certain crawler cranes and components
19 CFR 210.16-.17, 210.33. The [FR Doc. 2015–09444 Filed 4–21–15; 8:45 am]
thereof, by reason of infringement of
Commission has determined that the U.S. Patent Nos. 7,546,928 (‘‘the ’928
BILLING CODE 7020–02–P
appropriate remedy is the issuance of a patent’’) and 7,967,158 (‘‘the ’158
limited exclusion order prohibiting, for patent’’), and that an industry in the
twenty-five years, the entry of opaque INTERNATIONAL TRADE United States exists or is in the process
polymers manufactured using any of the COMMISSION of being established as required by
misappropriated trade secrets identified subsection (a)(2) of section 337. The
in Dow’s Disclosure of Misappropriated complaint further alleges violations of
[Investigation No. 337–TA–887] subsection (a)(1)(A) of section 337 by
Trade Secrets (Jan. 29, 2014) (listing
trade secrets A–ZZ). The Commission Certain Crawler Cranes and reason of trade secret misappropriation,
has also determined to issue a cease and Components Thereof; Commission’s the threat or effect of which is to destroy
desist order prohibiting Organik Kimya Final Determination; Issuance of a or substantially injure an industry in the
U.S., Inc. from, inter alia, importing or Limited Exclusion Order and Cease United States or to prevent the
selling opaque polymers manufactured and Desist Order; Termination of the establishment of such an industry. The
using any of the aforementioned Investigation Commission’s notice of investigation
misappropriated trade secrets. The named Sany Heavy Industry Co., Ltd. of
Commission has also determined that AGENCY: U.S. International Trade Changsha, China, and Sany America,
the public interest factors enumerated in Commission. Inc. of Peachtree City, Georgia
section 337(d) and (f), 19 U.S.C. 1337(d) (collectively, ‘‘Sany’’) as respondents.
asabaliauskas on DSK5VPTVN1PROD with NOTICES

ACTION: Notice.
& (f), do not preclude the issuance of the The Office of Unfair Import
limited exclusion order or the cease and SUMMARY: Notice is hereby given that Investigations (‘‘OUII’’) was also named
desist order. The Commission has the U.S. International Trade as a party.
determined that no bonding is required Commission has found a violation of On July 11, 2014, the ALJ issued his
during the period of Presidential review, section 337 in this investigation and has final initial determination (‘‘ID’’) finding
19 U.S.C. 1337(j). (1) issued a limited exclusion order a violation of section 337 with respect
The Commission has further prohibiting importation of certain to claims 1, 2, 5, 8, and 23–26 of the
determined to affirm the ALJ’s crawler cranes and components thereof ’928 patent and misappropriation of

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22550 Federal Register / Vol. 80, No. 77 / Wednesday, April 22, 2015 / Notices

Trade Secret Nos. 1, 6, 14, and 15. The cranes and components thereof that (a) DEPARTMENT OF JUSTICE
ALJ further found no violation of infringe one or more of claims 23–26 of
section 337 with respect to claims 6, 10, the ’928 patent and are manufactured Antitrust Division
and 11 of the ’928 patent, claim 1 of the by, or on behalf of, or are imported by
’158 patent, and Trade Secret Nos. 3 and or on behalf of the Respondents or any Notice Pursuant To The National
4. of their affiliated companies, parents, Cooperative Research And Production
On July 28, 2014, OUII, Manitowoc, subsidiaries, agents, or other related Act Of 1993—Network Centric
and Sany each filed a petition for business entities, or their successors or Operations Industry Consortium, Inc.
review. On August 5, 2014, the parties
assigns; and/or (b) are manufactured
replied to the respective petitions for Notice is hereby given that, on March
abroad by or on behalf of, or imported
review. 25, 2015, pursuant to Section 6(a) of the
On September 19, 2014, the by or on behalf of, Respondents or any
National Cooperative Research and
Commission determined to review the of their affiliated companies, parents,
Production Act of 1993, 15 U.S.C. 4301
final ID and solicited briefing from the subsidiaries, or other related business
et seq. (‘‘the Act’’), Network Centric
parties on questions concerning entities, or their successors or assigns,
Operations Industry Consortium, Inc.
violation, remedy, bonding, and the using any of Trade Secret Nos. 1, 3, 4,
(‘‘NCOIC’’) has filed written
public interest. 79 Fed. Reg. 57566–68. 6, 14, and 15, for a period of ten (10)
notifications simultaneously with the
Specifically, the Commission years; and (2) a cease and desist order
Attorney General and the Federal Trade
determined to review the ALJ’s findings prohibiting the domestic respondent
with respect to: (1) Importation of the Commission disclosing changes in its
from conducting any of the following
accused products; (2) infringement of membership. The notifications were
activities in the United States:
the asserted patents; (3) estoppel; (4) the filed for the purpose of extending the
Importing, selling, marketing,
technical prong of the domestic industry Act’s provisions limiting the recovery of
advertising, distributing, transferring
requirement; and (5) the asserted trade antitrust plaintiffs to actual damages
(except for exportation), and soliciting
secrets. The parties provided initial under specified circumstances.
United States, agents or distributors for,
submissions to the Commission’s Specifically, Harry Raduege (individual
certain crawler cranes and components
questions on October 1, 2014, and member), Arlington, VA; Tata Power
therefore manufactured using any of
responsive submissions on October 8, SED, Andheri, Mumbai, INDIA; and
Trade Secret Nos. 1, 3, 4, 6, 14, and 15.
2014. Vikram Chauhan (individual member),
On December 3, 2014, the The Commission has also determined Great Falls, VA, have been added as
Commission determined to request that the public interest factors parties to this venture.
additional briefing. Notice (December 3, enumerated in section 337(d) and (f) (19
In addition, NJVC, LLC, Vienna, VA,
2014). On December 12, 2014, the U.S.C. 1337(d) and (f)) do not preclude
parties filed initial submissions in Saab AB, Ostersund, SWEDEN; and The
issuance of the limited exclusion order
response to the Commission’s notice MITRE Corporation, McLean, VA, have
or a cease and desist order. Finally, the
and filed response submissions on withdrawn as parties to this venture.
Commission has determined that a bond
December 19, 2014. during the period of presidential review No other changes have been made in
After considering the final ID, written (19 U.S.C. 1337(j)) shall be in the either the membership or planned
submissions, and the record in this amount of 100 percent (100%) of the activity of the group research project.
investigation, the Commission has entered value of the imported articles Membership in this group research
determined to affirm-in-part and project remains open, and NCOIC
that are subject to the limited exclusion
reverse-in-part the final ID and to intends to file additional written
terminate the investigation with a order or cease and desist order. The
Commission’s orders and opinion were notifications disclosing all changes in
finding of violation of section 337.
delivered to the President and to the membership.
Specifically, the Commission: (1) Finds
the asserted method claims of the ’928 United States Trade Representative on On November 19, 2004, NCOIC filed
patent are not infringed; (2) finds the the day of their issuance. its original notification pursuant to
asserted method claim of the ’158 patent The authority for the Commission’s Section 6(a) of the Act. The Department
is not infringed; (3) finds that claims determination is contained in section of Justice published a notice in the
23–26 of the ’928 patent are infringed by 337 of the Tariff Act of 1930, as Federal Register pursuant to Section
at least one product; (4) takes no amended (19 U.S.C. 1337), and in Part 6(b) of the Act on February 2, 2005 (70
position on the ALJ’s estoppel findings; 210 of the Commission’s Rules of FR 5486).
(5) finds that the domestic industry Practice and Procedure (19 CFR part The last notification was filed with
requirement has been met; and (6) finds 210). the Department on January 27, 2015. A
Trade Secret Nos. 1, 3, 4, 6, 14, and 15 notice was published in the Federal
are protectable and have been By order of the Commission.
Issued: April 16, 2015. Register pursuant to Section 6(b) of the
misappropriated. The Commission has
Act on February 27, 2015 (80 FR 10716).
issued its opinion setting forth the Lisa R. Barton,
reasons for its determination. Secretary to the Commission. Patricia A. Brink,
Commissioner Kieff concurs in the [FR Doc. 2015–09280 Filed 4–21–15; 8:45 am] Director of Civil Enforcement Antitrust
outcome and has filed an opinion
asabaliauskas on DSK5VPTVN1PROD with NOTICES

BILLING CODE 7020–02–P Division.
concurring in result and dissenting in [FR Doc. 2015–09322 Filed 4–21–15; 8:45 am]
part.
BILLING CODE 4410–11–P
Having found a violation of section
337 in this investigation, the
Commission has determined that the
appropriate form of relief is: (1) A
limited exclusion order prohibiting the
unlicensed entry of certain crawler

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Document Created: 2015-12-16 08:28:14
Document Modified: 2015-12-16 08:28:14

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
Contact		Amanda Pitcher Fisherow, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2737. 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 (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.
FR Citation		80 FR 22549