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)

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, 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.

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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