81 FR 71534 - Certain Lithium Metal Oxide Cathode Materials, Lithium-Ion Batteries for Power Tool Products Containing Same, and Power Tool Products With Lithium-Ion Batteries Containing Same; Commission's Procedure for a Public Hearing on the Issues of Laches, Contributory Infringement, and the Public Interest

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 200 (October 17, 2016)

Page Range		71534-71535
FR Document		2016-24986

Notice is hereby given that the U.S. International Trade Commission has determined to hold a public hearing on the issues of laches, contributory infringement, and the public interest.

Federal Register, Volume 81 Issue 200 (Monday, October 17, 2016)

[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Notices]
[Pages 71534-71535]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-24986]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-951]


Certain Lithium Metal Oxide Cathode Materials, Lithium-Ion 
Batteries for Power Tool Products Containing Same, and Power Tool 
Products With Lithium-Ion Batteries Containing Same; Commission's 
Procedure for a Public Hearing on the Issues of Laches, Contributory 
Infringement, and the Public Interest

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to hold a public hearing on the issues of 
laches, contributory infringement, and the public interest.

DATES: The public hearing is scheduled for Thursday, November 17, 2016, 
beginning at 10 a.m. See the Notice of Appearance section in 
SUPPLEMENTARY INFORMATION for more information.

ADDRESSES: The Commission will hold the public hearing in the 
Commission's Main Hearing Room (Room 101), 500 E Street SW., 
Washington, DC 20436.
    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 
(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.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-205-3042.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on March 30, 2015, based on a complaint filed by BASF Corporation of 
Florham Park, New Jersey and UChicago Argonne LLC of Lemont, Illinois 
(collectively, ``Complainants''). 80 FR 16696 (Mar. 30, 2015). The 
complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended (19 U.S.C. 1337), in the importation into the United States, 
the sale for importation, and the sale within the United States after 
importation of certain lithium metal oxide cathode materials, lithium-
ion batteries for power tool products containing same, and power tool 
products with lithium-ion batteries containing same by reason of 
infringement of one or more of claims 1-4, 7, 13, and 14 of U.S. Patent 
No. 6,677,082 (``the '082 patent'') and claims 1-4, 8, 9, and 17 of 
U.S. Patent No. 6,680,143 (``the '143 patent''). Id. The notice of 
investigation named the following respondents: Umicore N.V. of 
Brussels, Belgium; Umicore USA Inc. of Raleigh, North Carolina 
(collectively, ``Umicore''); Makita Corporation of Anjo, Japan; Makita 
Corporation of America of Buford, Georgia; and Makita U.S.A. Inc. of La 
Mirada, California (collectively, ``Makita''). Id. The Office of Unfair 
Import Investigations is a party to the investigation.
    On November 5, 2015, the ALJ granted a joint motion by Complainants 
and Makita to terminate the investigation as to Makita based upon 
settlement. See Order No. 32 (Nov. 5, 2015). The Commission determined 
not to review. See Notice (Nov. 23, 2015).
    On December 1, 2015, the ALJ granted an unopposed motion by 
Complainants to terminate the investigation as to claim 8 of the '082 
patent. See Order No. 35 (Dec. 1, 2015). The Commission determined not 
to review Order No. 35. See Notice (Dec. 22, 2015).
    On February 29, 2016, the ALJ issued his final ID, finding a 
violation of section 337 by Umicore in connection with claims 1-4, 7, 
13, and 14 of the '082 patent and claims 1-4, 8, 9, and 17 of the '143 
patent. Specifically, the ID found that the Commission has subject 
matter jurisdiction, in rem jurisdiction over the accused products, and 
in personam jurisdiction over Umicore. ID at 10-11. The ID found that 
Complainants satisfied the importation requirement of section 337 (19 
U.S.C. 1337(a)(1)(B)). Id. at 9-10. The ID found that the accused 
products directly infringe asserted claims 1-4, 7, 13, and 14 of the 
'082 patent; and asserted claims 1-4, 8, 9, and 17 of the '143 patent, 
and that Umicore contributorily infringes those claims. See ID at 65-
71, 83-85. The ID, however, found that Complainants failed to show that 
Umicore induces infringement of the asserted claims. Id. at 79-83. The 
ID further found that Umicore failed to establish that the asserted 
claims of the '082 or '143 patents are invalid for lack of enablement 
or incorrect inventorship. ID at 118-20. The ID also found that

[[Page 71535]]

Umicore's laches defense fails as a matter of law (ID at 122-124) and 
also fails on the merits (ID at 124-126). Finally, the ID found that 
Complainants established the existence of a domestic industry that 
practices the asserted patents under 19 U.S.C. 1337(a)(2). See ID at 
18, 24.
    On March 14, 2016, Umicore filed a petition for review of the ID. 
Also on March 14, 2016, the Commission investigative attorney (``IA'') 
petitioned for review of the ID's finding that a laches defense fails 
as a matter of law in section 337 investigations. Further on March 14, 
2016, Complainants filed a contingent petition for review of the ID. 
That same day, Umicore filed a motion under Commission Rules 
210.15(a)(2) and 210.38(a) (19 CFR 210.15(a)(2) and 210.38(a)), for the 
Commission to reopen the record in this investigation to admit a paper 
published on October 29, 2015, and a press release issued that day 
(collectively, ``documents''). On March 22, 2016, the parties filed 
responses to the petitions for review. On March 24, 2016, Complainants 
and the IA filed oppositions to Umicore's motion to reopen the record. 
On April 5, 2016, Umicore moved for leave to file a reply. The 
Commission has determined to grant Umicore's motion for leave to file a 
reply.
    On April 8, 2016, 3M Corporation (``3M'') filed a motion to 
intervene under Commission Rule 210.19. 3M requests that the Commission 
grant it ``with full participation rights in this Investigation in 
order to protect its significant interests in the accused materials.''
    On May 11, 2016, the Commission determined to review the final ID 
in part. 81 FR 30548-50 (May 17, 2016). Specifically, the Commission 
determined to review (1) the ID's contributory and induced infringement 
findings; (2) the ID's domestic industry findings under 19 U.S.C. 
1337(a)(3)(C); and (3) the ID's findings on laches. The Commission 
determined to deny Umicore's motion to reopen the record to admit 
certain documents. Id. The Commission also determined to deny 3M's 
motion to intervene, but stated that it would consider 3M's comments in 
considering remedy, bonding and the public interest this investigation 
if a violation of Section 337 is found.
    The Commission requested the parties to brief their positions on 
the issues under review with reference to the applicable law and the 
evidentiary record, and posed specific briefing questions. On May 23, 
2016, the parties filed submissions to the Commission's questions. On 
June 3, 2016, the parties filed responses to the initial submissions.
    Pursuant to Commission rule 210.45 (19 CFR 210.45), Umicore's 
request for a Commission hearing was granted. Details of the hearing 
are set forth below.
    Commission Hearing: The Commission will hold the public hearing on 
Thursday, November 17, 2016, in the Commission's Main Hearing Room 
(Room 101), 500 E Street SW., Washington DC 20436, beginning at 10 a.m. 
The hearing will be limited to the issues of laches, contributory 
infringement, and the public interest. The hearing will consist of two 
panels. The first panel will be limited to the parties (i.e., 
complainants, respondents, and the IA), who will be given an 
opportunity to comment on the issues identified above based upon the 
record in this investigation. A representative for each of the private 
parties and the IA may present opening remarks not lasting more than 10 
minutes. After the opening remarks, the Commissioners may ask questions 
of the panelists. This is a public hearing; confidential business 
information (``CBI'') should not be discussed. A party, however, can 
draw the Commission's attention to CBI, if necessary, by pointing to 
where in the record the information can be found. The name and contact 
information of the parties' respective representatives must be filed 
with the Office of the Secretary by Friday, November 4, 2016. The first 
panel will be from 10 a.m. to 11:30 a.m.
    The second panel will be limited to public interest issues. In 
particular, the Commission will hear presentations concerning the 
appropriate remedy (if any) and the effect that such remedy would have 
upon the public interest. Government agencies, public-interest groups, 
and interested members of the public may make oral presentations on the 
issues of remedy and the public interest. Parties to the investigation 
are expected to present any public interest comments during the first 
panel and will not participate in the second panel. The panel will be 
conducted in like manner as the first panel, i.e., an opportunity will 
be given for opening remarks, not lasting more than 10 minutes, and 
Commissioners may ask questions of the panelists. The second panel will 
begin at 11:30 a.m.
    After the conclusion of the hearing, no additional written 
submissions or arguments will be permitted.
    Notice of Appearance: Written requests to appear at the Commission 
hearing with respect to the second panel (i.e., public interest only) 
must be filed with the Office of the Secretary by November 1, 2016. 
Persons who wish to participate must provide their email addresses as 
part of their contact information. Participants are also requested to 
provide a one-page synopsis of their oral presentations indicating what 
position they have on the public interest. These documents will be 
placed in the public record.
    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 11, 2016.
Lisa R. Barton,
Secretary to the Commission.

[FR Doc. 2016-24986 Filed 10-14-16; 8:45 am]
 BILLING CODE 7020-02-P

71534 Federal Register / Vol. 81, No. 200 / Monday, October 17, 2016 / Notices

the Commission’s TDD terminal on 202– INTERNATIONAL TRADE Tariff Act of 1930, as amended (19
205–1810. Persons with mobility COMMISSION U.S.C. 1337), in the importation into the
impairments who will need special United States, the sale for importation,
[Investigation No. 337–TA–951]
assistance in gaining access to the and the sale within the United States
Commission should contact the Office Certain Lithium Metal Oxide Cathode after importation of certain lithium
of the Secretary at 202–205–2000. Materials, Lithium-Ion Batteries for metal oxide cathode materials, lithium-
General information concerning the Power Tool Products Containing ion batteries for power tool products
Commission may also be obtained by Same, and Power Tool Products With containing same, and power tool
accessing its internet server (https:// Lithium-Ion Batteries Containing products with lithium-ion batteries
containing same by reason of
www.usitc.gov). The public record for Same; Commission’s Procedure for a
Public Hearing on the Issues of infringement of one or more of claims
these reviews may be viewed on the
1–4, 7, 13, and 14 of U.S. Patent No.
Commission’s electronic docket (EDIS) Laches, Contributory Infringement,
6,677,082 (‘‘the ’082 patent’’) and claims
at https://edis.usitc.gov. For further and the Public Interest
1–4, 8, 9, and 17 of U.S. Patent No.
information concerning the conduct of AGENCY: U.S. International Trade 6,680,143 (‘‘the ’143 patent’’). Id. The
these reviews and rules of general Commission. notice of investigation named the
application, consult the Commission’s ACTION: Notice. following respondents: Umicore N.V. of
Rules of Practice and Procedure, part Brussels, Belgium; Umicore USA Inc. of
201, subparts A through E (19 CFR part SUMMARY: Notice is hereby given that Raleigh, North Carolina (collectively,
201), and part 207, subparts A, D, E, and the U.S. International Trade ‘‘Umicore’’); Makita Corporation of
F (19 CFR part 207). Commission has determined to hold a Anjo, Japan; Makita Corporation of
public hearing on the issues of laches, America of Buford, Georgia; and Makita
SUPPLEMENTARY INFORMATION: On contributory infringement, and the U.S.A. Inc. of La Mirada, California
October 4, 2016, the Commission public interest. (collectively, ‘‘Makita’’). Id. The Office
determined that it should proceed to of Unfair Import Investigations is a party
DATES: The public hearing is scheduled
full reviews in the subject five-year for Thursday, November 17, 2016, to the investigation.
reviews pursuant to section 751(c) of the beginning at 10 a.m. See the Notice of On November 5, 2015, the ALJ
Tariff Act of 1930 (19 U.S.C. 1675(c)). Appearance section in SUPPLEMENTARY granted a joint motion by Complainants
With respect to the reviews on subject INFORMATION for more information. and Makita to terminate the
merchandise from Korea, the ADDRESSES: The Commission will hold investigation as to Makita based upon
Commission found that both the the public hearing in the Commission’s settlement. See Order No. 32 (Nov. 5,
domestic and respondent interested Main Hearing Room (Room 101), 500 E 2015). The Commission determined not
party group responses to its notice of Street SW., Washington, DC 20436. to review. See Notice (Nov. 23, 2015).
institution (81 FR 43238, July 1, 2016) Copies of non-confidential documents On December 1, 2015, the ALJ granted
were adequate. With respect to the filed in connection with this an unopposed motion by Complainants
reviews on subject merchandise from investigation are or will be available for to terminate the investigation as to
Japan and Taiwan, the Commission inspection during official business claim 8 of the ’082 patent. See Order No.
found that the domestic interested party hours (8:45 a.m. to 5:15 p.m.) in the 35 (Dec. 1, 2015). The Commission
group response was adequate and the Office of the Secretary, U.S. determined not to review Order No. 35.
International Trade Commission, 500 E See Notice (Dec. 22, 2015).
respondent interested party group On February 29, 2016, the ALJ issued
response was inadequate, but that Street SW., Washington, DC 20436,
his final ID, finding a violation of
circumstances warranted full reviews.1 telephone 202–205–2000. General
section 337 by Umicore in connection
A record of the Commissioners’ votes, information concerning the Commission with claims 1–4, 7, 13, and 14 of the
the Commission’s statement on may also be obtained by accessing its ’082 patent and claims 1–4, 8, 9, and 17
adequacy, and any individual Internet server (https://www.usitc.gov). of the ’143 patent. Specifically, the ID
Commissioner’s statements will be The public record for this investigation found that the Commission has subject
available from the Office of the may be viewed on the Commission’s matter jurisdiction, in rem jurisdiction
Secretary and at the Commission’s Web electronic docket (EDIS) at https:// over the accused products, and in
site. edis.usitc.gov. Hearing-impaired personam jurisdiction over Umicore. ID
persons are advised that information on at 10–11. The ID found that
Authority: These reviews are being this matter can be obtained by
conducted under authority of title VII of the
Complainants satisfied the importation
contacting the Commission’s TDD requirement of section 337 (19 U.S.C.
Tariff Act of 1930; this notice is published terminal on 202–205–1810.
pursuant to section 207.62 of the 1337(a)(1)(B)). Id. at 9–10. The ID found
FOR FURTHER INFORMATION CONTACT: that the accused products directly
Commission’s rules.
Panyin A. Hughes, Office of the General infringe asserted claims 1–4, 7, 13, and
By order of the Commission. Counsel, U.S. International Trade 14 of the ’082 patent; and asserted
Issued: October 11, 2016. Commission, 500 E Street SW., claims 1–4, 8, 9, and 17 of the ’143
Lisa R. Barton, Washington, DC 20436, telephone 202– patent, and that Umicore contributorily
205–3042. infringes those claims. See ID at 65–71,
Secretary to the Commission.
[FR Doc. 2016–24985 Filed 10–14–16; 8:45 am]
SUPPLEMENTARY INFORMATION: The 83–85. The ID, however, found that
Commission instituted this investigation Complainants failed to show that
jstallworth on DSK7TPTVN1PROD with NOTICES

BILLING CODE 7020–02–P
on March 30, 2015, based on a Umicore induces infringement of the
complaint filed by BASF Corporation of asserted claims. Id. at 79–83. The ID
1 With respect to the review on subject
Florham Park, New Jersey and UChicago further found that Umicore failed to
merchandise from Japan, Commissioner F. Scott
Argonne LLC of Lemont, Illinois establish that the asserted claims of the
Kieff concluded that both the domestic and (collectively, ‘‘Complainants’’). 80 FR ’082 or ’143 patents are invalid for lack
respondent interested party group responses were 16696 (Mar. 30, 2015). The complaint of enablement or incorrect inventorship.
adequate. alleges violations of section 337 of the ID at 118–20. The ID also found that

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Federal Register / Vol. 81, No. 200 / Monday, October 17, 2016 / Notices 71535

Umicore’s laches defense fails as a filed responses to the initial November 1, 2016. Persons who wish to
matter of law (ID at 122–124) and also submissions. participate must provide their email
fails on the merits (ID at 124–126). Pursuant to Commission rule 210.45 addresses as part of their contact
Finally, the ID found that Complainants (19 CFR 210.45), Umicore’s request for information. Participants are also
established the existence of a domestic a Commission hearing was granted. requested to provide a one-page
industry that practices the asserted Details of the hearing are set forth synopsis of their oral presentations
patents under 19 U.S.C. 1337(a)(2). See below. indicating what position they have on
ID at 18, 24. Commission Hearing: The the public interest. These documents
On March 14, 2016, Umicore filed a Commission will hold the public will be placed in the public record.
petition for review of the ID. Also on hearing on Thursday, November 17, The authority for the Commission’s
March 14, 2016, the Commission 2016, in the Commission’s Main determination is contained in section
investigative attorney (‘‘IA’’) petitioned Hearing Room (Room 101), 500 E Street 337 of the Tariff Act of 1930, as
for review of the ID’s finding that a SW., Washington DC 20436, beginning amended (19 U.S.C. 1337), and in part
laches defense fails as a matter of law at 10 a.m. The hearing will be limited 210 of the Commission’s Rules of
in section 337 investigations. Further on to the issues of laches, contributory Practice and Procedure (19 CFR part
March 14, 2016, Complainants filed a infringement, and the public interest. 210).
contingent petition for review of the ID. The hearing will consist of two panels.
The first panel will be limited to the By order of the Commission.
That same day, Umicore filed a motion Issued: October 11, 2016.
under Commission Rules 210.15(a)(2) parties (i.e., complainants, respondents,
and the IA), who will be given an Lisa R. Barton,
and 210.38(a) (19 CFR 210.15(a)(2) and
210.38(a)), for the Commission to opportunity to comment on the issues Secretary to the Commission.
reopen the record in this investigation identified above based upon the record [FR Doc. 2016–24986 Filed 10–14–16; 8:45 am]
to admit a paper published on October in this investigation. A representative BILLING CODE 7020–02–P
29, 2015, and a press release issued that for each of the private parties and the IA
day (collectively, ‘‘documents’’). On may present opening remarks not lasting
March 22, 2016, the parties filed more than 10 minutes. After the opening
DEPARTMENT OF JUSTICE
remarks, the Commissioners may ask
responses to the petitions for review. On
questions of the panelists. This is a Bureau of Alcohol, Tobacco, Firearms
March 24, 2016, Complainants and the
public hearing; confidential business and Explosives
IA filed oppositions to Umicore’s
information (‘‘CBI’’) should not be
motion to reopen the record. On April [OMB Number 1140–0046]
discussed. A party, however, can draw
5, 2016, Umicore moved for leave to file
the Commission’s attention to CBI, if
a reply. The Commission has Agency Information Collection
necessary, by pointing to where in the
determined to grant Umicore’s motion Activities; Proposed eCollection
record the information can be found.
for leave to file a reply. eComments Requested; Certification
The name and contact information of
On April 8, 2016, 3M Corporation the parties’ respective representatives on Agency Letterhead Authorizing
(‘‘3M’’) filed a motion to intervene must be filed with the Office of the Purchase of Firearm for Official Duties
under Commission Rule 210.19. 3M Secretary by Friday, November 4, 2016. of Law Enforcement Officer
requests that the Commission grant it The first panel will be from 10 a.m. to
‘‘with full participation rights in this AGENCY: Bureau of Alcohol, Tobacco,
11:30 a.m. Firearms and Explosives, Department of
Investigation in order to protect its The second panel will be limited to
significant interests in the accused Justice.
public interest issues. In particular, the
materials.’’ ACTION: 30-Day notice.
Commission will hear presentations
On May 11, 2016, the Commission concerning the appropriate remedy (if SUMMARY: The Department of Justice
determined to review the final ID in any) and the effect that such remedy (DOJ), Bureau of Alcohol, Tobacco,
part. 81 FR 30548–50 (May 17, 2016). would have upon the public interest. Firearms and Explosives (ATF), will
Specifically, the Commission Government agencies, public-interest submit the following information
determined to review (1) the ID’s groups, and interested members of the collection request to the Office of
contributory and induced infringement public may make oral presentations on Management and Budget (OMB) for
findings; (2) the ID’s domestic industry the issues of remedy and the public review and approval in accordance with
findings under 19 U.S.C. 1337(a)(3)(C); interest. Parties to the investigation are the Paperwork Reduction Act of 1995.
and (3) the ID’s findings on laches. The expected to present any public interest The proposed information collection
Commission determined to deny comments during the first panel and was previously published in the Federal
Umicore’s motion to reopen the record will not participate in the second panel. Register 81 FR 53161, on August 11,
to admit certain documents. Id. The The panel will be conducted in like 2016, allowing for a 60-day comment
Commission also determined to deny manner as the first panel, i.e., an period.
3M’s motion to intervene, but stated that opportunity will be given for opening
it would consider 3M’s comments in remarks, not lasting more than 10 DATES: Comments are encouraged and
considering remedy, bonding and the minutes, and Commissioners may ask will be accepted for an additional 30
public interest this investigation if a questions of the panelists. The second days until November 16, 2016.
violation of Section 337 is found. panel will begin at 11:30 a.m. FOR FURTHER INFORMATION CONTACT: If
The Commission requested the parties you have additional comments,
jstallworth on DSK7TPTVN1PROD with NOTICES

After the conclusion of the hearing,
to brief their positions on the issues no additional written submissions or particularly with respect to the
under review with reference to the arguments will be permitted. estimated public burden or associated
applicable law and the evidentiary Notice of Appearance: Written response time, have suggestions, need a
record, and posed specific briefing requests to appear at the Commission copy of the proposed information
questions. On May 23, 2016, the parties hearing with respect to the second panel collection instrument with instructions,
filed submissions to the Commission’s (i.e., public interest only) must be filed or desire any other additional
questions. On June 3, 2016, the parties with the Office of the Secretary by information, please contact Rinell

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Document Created: 2016-10-15 01:51:45
Document Modified: 2016-10-15 01:51:45

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.
Dates		The public hearing is scheduled for Thursday, November 17, 2016, beginning at 10 a.m. See the Notice of Appearance section in SUPPLEMENTARY INFORMATION for more information.
Contact		Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone 202-205-3042.
FR Citation		81 FR 71534