81 FR 93960 - 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 Final Determination; Issuance of a Limited Exclusion Order; Termination of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 246 (December 22, 2016)

Page Range		93960-93962
FR Document		2016-30811

Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has issued a limited exclusion order prohibiting importation of infringing lithium metal oxide cathode materials for consumption in the United States.

Federal Register, Volume 81 Issue 246 (Thursday, December 22, 2016)

[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Notices]
[Pages 93960-93962]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-30811]


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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 Final 
Determination; Issuance of a Limited Exclusion Order; Termination of 
the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found a violation of section 337 in this investigation 
and has issued a limited exclusion order prohibiting importation of 
infringing lithium metal oxide cathode materials for consumption in the 
United States.

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. 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.

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

[[Page 93961]]

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 
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 
and a motion for a Commission hearing. 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. On March 22, 2016, the 
parties filed responses to the petitions for review.
    On April 8, 2016, 3M Corporation (``3M'') filed a motion to 
intervene under Commission Rule 210.19. 3M requested 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 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. 
Pursuant to Commission rule 210.45 (19 CFR 210.45), Umicore's request 
for a Commission hearing was granted.
    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. 
Interested public entities, including 3M and the Belgian Ambassador 
also submitted comments on the public interest.
    On August 2, 2016, Complainants filed a motion pursuant to 19 CFR 
210.15(a)(2) and 19 CFR 210.38(a) for the Commission to reopen the 
record in this Investigation to admit a July 6, 2016 news article that 
allegedly includes statements by Umicore Greater China Senior Vice 
President Chuxian Feng as to this investigation. On August 11 & 12, 
2016, Umicore and the IA filed respective oppositions to the motion. 
The Commission has determined to deny Complainants motion to reopen the 
record.
    The Commission was interested in hearing presentations concerning 
the appropriate remedy (if any) and the effect that such remedy would 
have upon the public interest. The Commission invited Government 
agencies, public-interest groups, and interested members of the public 
to make oral presentations on the issues of remedy and the public 
interest. The Commission held a public hearing on Thursday, November 
17, 2016, in the USITC Main Hearing Room. The hearing was limited to 
the issues of laches, contributory infringement, and the public 
interest. The hearing consisted of two panels. The first panel was 
limited to the parties (i.e., complainants, respondents, and the IA), 
who were given an opportunity to comment on the issues identified 
above. The second panel consisted of non-party witnesses on the public 
interest.
    The Commission thanks the various entities who appeared to testify 
on the public interest.
    Having examined the record of this investigation, including the 
final ID, the petitions for review, responses thereto, and all other 
appropriate submissions, the Commission has determined to reverse the 
ALJ's finding that Umicore does not induce infringement. The Commission 
finds that the record evidence fails to support the ALJ's finding that 
Umicore had a good faith belief of non-infringement. The Commission has 
determined to affirm the ALJ's finding that Umicore's laches defense 
fails on the merits. The Commission vacates and takes no position on 
the legal question of whether laches is an available defense at the 
Commission. The Commission has determined to vacate and take no 
position on the ALJ's finding that Complainants established the 
existence of a domestic industry under 19 U.S.C. 1337(a)(3)(C) with 
respect to BASF.
    Having found a violation of section 337 in this investigation, the 
Commission has determined that the appropriate form of relief is a 
limited exclusion order prohibiting the unlicensed entry of lithium 
metal oxide cathode materials that infringe one or more of claims 1-4, 
7, 13, and 14 of the '082 patent, or claims 1-4, 8, 9, and 17 of the 
'143 patent that are manufactured by, or on behalf of, or imported by 
or on behalf of Umicore N.V. and Umicore USA Inc. or any of their 
affiliated companies, parents, subsidiaries, agents, or other related 
business entities, or their successors or assigns.
    The Commission has also determined that the public interest factors 
enumerated in section 337(d) (19 U.S.C. 1337(d)) does not preclude 
issuance of the limited exclusion order. Finally, the Commission has 
determined that a bond in the amount of three percent of entered value 
is required to permit

[[Page 93962]]

temporary importation during the period of Presidential review (19 
U.S.C. 1337(j)) of lithium metal oxide cathode materials that are 
subject to the limited exclusion 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: December 16, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-30811 Filed 12-21-16; 8:45 am]
 BILLING CODE 7020-02-P

Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Notices 93961

containing same by reason of On March 14, 2016, Umicore filed a upon the public interest. The
infringement of one or more of claims petition for review of the ID and a Commission invited Government
1–4, 7, 13, and 14 of U.S. Patent No. motion for a Commission hearing. Also agencies, public-interest groups, and
6,677,082 (‘‘the ’082 patent’’) and claims on March 14, 2016, the Commission interested members of the public to
1–4, 8, 9, and 17 of U.S. Patent No. investigative attorney (‘‘IA’’) petitioned make oral presentations on the issues of
6,680,143 (‘‘the ’143 patent’’). Id. The for review of the ID’s finding that a remedy and the public interest. The
notice of investigation named the laches defense fails as a matter of law Commission held a public hearing on
following respondents: Umicore N.V. of in section 337 investigations. Further on Thursday, November 17, 2016, in the
Brussels, Belgium; Umicore USA Inc. of March 14, 2016, Complainants filed a USITC Main Hearing Room. The hearing
Raleigh, North Carolina (collectively, contingent petition for review of the ID. was limited to the issues of laches,
‘‘Umicore’’); Makita Corporation of On March 22, 2016, the parties filed contributory infringement, and the
Anjo, Japan; Makita Corporation of responses to the petitions for review. public interest. The hearing consisted of
America of Buford, Georgia; and Makita On April 8, 2016, 3M Corporation two panels. The first panel was limited
U.S.A. Inc. of La Mirada, California (‘‘3M’’) filed a motion to intervene to the parties (i.e., complainants,
(collectively, ‘‘Makita’’). Id. The Office under Commission Rule 210.19. 3M respondents, and the IA), who were
of Unfair Import Investigations is a party requested that the Commission grant it given an opportunity to comment on the
to the investigation. ‘‘with full participation rights in this issues identified above. The second
On November 5, 2015, the ALJ Investigation in order to protect its panel consisted of non-party witnesses
granted a joint motion by Complainants significant interests in the accused on the public interest.
and Makita to terminate the materials.’’ The Commission thanks the various
investigation as to Makita based upon On May 11, 2016, the Commission entities who appeared to testify on the
settlement. See Order No. 32 (Nov. 5, determined to review the final ID in public interest.
2015). The Commission determined not part. 81 FR 30548–50 (May 17, 2016). Having examined the record of this
to review. See Notice (Nov. 23, 2015). Specifically, the Commission investigation, including the final ID, the
determined to review (1) the ID’s petitions for review, responses thereto,
On December 1, 2015, the ALJ granted
contributory and induced infringement and all other appropriate submissions,
an unopposed motion by Complainants
findings; (2) the ID’s domestic industry the Commission has determined to
to terminate the investigation as to findings under 19 U.S.C. 1337(a)(3)(C); reverse the ALJ’s finding that Umicore
claim 8 of the ’082 patent. See Order No. and (3) the ID’s findings on laches. The does not induce infringement. The
35 (Dec. 1, 2015). The Commission Commission determined to deny 3M’s Commission finds that the record
determined not to review Order No. 35. motion to intervene, but stated that it evidence fails to support the ALJ’s
See Notice (Dec. 22, 2015). would consider 3M’s comments in finding that Umicore had a good faith
On February 29, 2016, the ALJ issued considering remedy, bonding and the belief of non-infringement. The
his final ID, finding a violation of public interest this investigation if a Commission has determined to affirm
section 337 by Umicore in connection violation of Section 337 is found. the ALJ’s finding that Umicore’s laches
with claims 1–4, 7, 13, and 14 of the Pursuant to Commission rule 210.45 (19 defense fails on the merits. The
’082 patent and claims 1–4, 8, 9, and 17 CFR 210.45), Umicore’s request for a Commission vacates and takes no
of the ’143 patent. Specifically, the ID Commission hearing was granted. position on the legal question of
found that the Commission has subject The Commission requested the parties whether laches is an available defense at
matter jurisdiction, in rem jurisdiction to brief their positions on the issues the Commission. The Commission has
over the accused products, and in under review with reference to the determined to vacate and take no
personam jurisdiction over Umicore. ID applicable law and the evidentiary position on the ALJ’s finding that
at 10–11. The ID found that record, and posed specific briefing Complainants established the existence
Complainants satisfied the importation questions. On May 23, 2016, the parties of a domestic industry under 19 U.S.C.
requirement of section 337 (19 U.S.C. filed submissions to the Commission’s 1337(a)(3)(C) with respect to BASF.
1337(a)(1)(B)). Id. at 9–10. The ID found questions. On June 3, 2016, the parties Having found a violation of section
that the accused products directly filed responses to the initial 337 in this investigation, the
infringe asserted claims 1–4, 7, 13, and submissions. Interested public entities, Commission has determined that the
14 of the ’082 patent; and asserted including 3M and the Belgian appropriate form of relief is a limited
claims 1–4, 8, 9, and 17 of the ’143 Ambassador also submitted comments exclusion order prohibiting the
patent, and that Umicore contributorily on the public interest. unlicensed entry of lithium metal oxide
infringes those claims. See ID at 65–71, On August 2, 2016, Complainants cathode materials that infringe one or
83–85. The ID, however, found that filed a motion pursuant to 19 CFR more of claims 1–4, 7, 13, and 14 of the
Complainants failed to show that 210.15(a)(2) and 19 CFR 210.38(a) for ’082 patent, or claims 1–4, 8, 9, and 17
Umicore induces infringement of the the Commission to reopen the record in of the ’143 patent that are manufactured
asserted claims. Id. at 79–83. The ID this Investigation to admit a July 6, 2016 by, or on behalf of, or imported by or on
further found that Umicore failed to news article that allegedly includes behalf of Umicore N.V. and Umicore
establish that the asserted claims of the statements by Umicore Greater China USA Inc. or any of their affiliated
’082 or ’143 patents are invalid for lack Senior Vice President Chuxian Feng as companies, parents, subsidiaries, agents,
of enablement or incorrect inventorship. to this investigation. On August 11 & 12, or other related business entities, or
ID at 118–20. The ID also found that 2016, Umicore and the IA filed their successors or assigns.
Umicore’s laches defense fails as a The Commission has also determined
sradovich on DSK3GMQ082PROD with NOTICES

respective oppositions to the motion.
matter of law (ID at 122–124) and also The Commission has determined to that the public interest factors
fails on the merits (ID at 124–126). deny Complainants motion to reopen enumerated in section 337(d) (19 U.S.C.
Finally, the ID found that Complainants the record. 1337(d)) does not preclude issuance of
established the existence of a domestic The Commission was interested in the limited exclusion order. Finally, the
industry that practices the asserted hearing presentations concerning the Commission has determined that a bond
patents under 19 U.S.C. 1337(a)(2). See appropriate remedy (if any) and the in the amount of three percent of
ID at 18, 24. effect that such remedy would have entered value is required to permit

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93962 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Notices

temporary importation during the DEPARTMENT OF LABOR Docket: To read or download
period of Presidential review (19 U.S.C. comments or other material in the
1337(j)) of lithium metal oxide cathode Occupational Safety and Health docket, go to http://www.regulations.gov
materials that are subject to the limited Administration or the OSHA Docket Office at the
exclusion order. The Commission’s [Docket No. OSHA–2010–0009 address above. All documents in the
orders and opinion were delivered to docket (including this Federal Register
the President and to the United States The Standard on Presence Sensing notice) are listed in the http://
Trade Representative on the day of their Device Initiation (PSDI) (Extension of www.regulations.gov index; however,
issuance. the Office of Management and some information (e.g., copyrighted
The authority for the Commission’s Budget’s (OMB) Approval of material) is not publicly available to
determination is contained in section Collections of Information (Paperwork) read or download from the Web site. All
337 of the Tariff Act of 1930, as Requirements submissions, including copyrighted
amended (19 U.S.C. 1337), and in Part material, are available for inspection
AGENCY: Occupational Safety and Health and copying at the OSHA Docket Office.
210 of the Commission’s Rules of Administration (OSHA), Labor.
Practice and Procedure (19 CFR part You also may contact Theda Kenney at
ACTION: Request for public comments. the address below to obtain a copy of
210).
By order of the Commission. SUMMARY: OSHA solicits public the ICR.
Issued: December 16, 2016. comments concerning its proposal to FOR FURTHER INFORMATION CONTACT:
Lisa R. Barton, extend the Office of Management and Theda Kenney or Todd Owen,
Budget’s (OMB) approval of the Directorate of Standards and Guidance,
Secretary to the Commission.
information collection requirements OSHA, U.S. Department of Labor, Room
[FR Doc. 2016–30811 Filed 12–21–16; 8:45 am]
specified in the Standard on Presence N–3609, 200 Constitution Avenue NW.,
BILLING CODE 7020–02–P Washington, DC 20210; telephone (202)
Sensing Device Initiation (29 CFR
1910.217(h)). 693–2222.
DATES: Comments must be submitted SUPPLEMENTARY INFORMATION:
INTERNATIONAL TRADE
COMMISSION (postmarked, sent, or received) by I. Background
February 21, 2017.
ADDRESSES:
The Department of Labor, as part of its
[USITC SE–16–043] continuing effort to reduce paperwork
Electronically: You may submit
comments and attachments and respondent (i.e., employer) burden,
Government in the Sunshine Act conducts a preclearance consultation
Meeting Notice electronically at http://
www.regulations.gov, which is the program to provide the public with an
Federal eRulemaking Portal. Follow the opportunity to comment on proposed
AGENCY HOLDING THE MEETING: United
instructions online for submitting and continuing information collection
States International Trade Commission.
comments. requirements in accord with the
TIME AND DATE: December 30, 2016 at Paperwork Reduction Act of 1995 (PRA)
Facsimile: If your comments,
11:00 a.m. including attachments, are not longer (44 U.S.C. 3506(c)(2)(A)). This program
PLACE: Room 101, 500 E Street SW., than 10 pages you may fax them to the ensures that information is in the
Washington, DC 20436, Telephone: OSHA Docket Office at (202) 693–1648. desired format, reporting burden (time
(202) 205–2000. Mail, hand delivery, express mail, and costs) is minimal, collection
STATUS: Open to the public. messenger, or courier service: When instruments are clearly understood, and
using this method, you must submit OSHA’s estimate of the information
MATTERS TO BE CONSIDERED: collection burden is accurate. The
your comments and attachments to the
1. Agendas for future meetings: None. OSHA Docket Office, Docket No. Occupational Safety and Health Act of
2. Minutes. OSHA–2010–0009 Occupational Safety 1970 (the OSH Act) (29 U.S.C. 651 et
3. Ratification List. and Health Administration, U.S. seq.) authorizes information collection
4. Vote in Inv. Nos. 701–TA–565 and Department of Labor, Room N–3653, by employers as necessary or
731–TA–1341 (Preliminary) (Hardwood 200 Constitution Avenue NW., appropriate for enforcement of the OSH
Plywood from China). The Commission Washington, DC 20210. Deliveries Act or for developing information
is currently scheduled to complete and (hand, express mail, messenger, and regarding the causes and prevention of
file its determinations on January 3, courier service) are accepted during the occupational injuries, illnesses, and
2017; views of the Commission are Department of Labor’s and Docket accidents (29 U.S.C. 657). The OSH Act
currently scheduled to be completed Office’s normal business hours, 10:00 also requires that OSHA obtain such
and filed on January 10, 2017. a.m. to 3:00 p.m., e.t. information with minimum burden
5. Outstanding action jackets: None. Instructions: All submissions must upon employers, especially those
In accordance with Commission include the Agency name and the OSHA operating small businesses, and to
policy, subject matter listed above, not docket number (OSHA–2010–0009) for reduce to the maximum extent feasible
disposed of at the scheduled meeting, the Information Collection Request unnecessary duplication of efforts in
may be carried over to the agenda of the (ICR). All comments, including any obtaining information (29 U.S.C. 657).
following meeting. personal information you provide, are Paragraph 1910.217(h) regulates the
placed in the public docket without use of presence sensing devices
sradovich on DSK3GMQ082PROD with NOTICES

By order of the Commission. change, and may be made available (‘‘PSDs’’) used to initiate the operation
Issued: December 19, 2016. online at http://www.regulations.gov. of mechanical power presses; a PSD
William R. Bishop, For further information on submitting (e.g., a photoelectric field or curtain)
Supervisory Hearings and Information comments see the ‘‘Public automatically stops the stroke of a
Officer. Participation’’ heading in the section of mechanical power press when the
[FR Doc. 2016–31021 Filed 12–20–16; 4:15 pm] this notice titled SUPPLEMENTARY device detects an operator entering a
BILLING CODE 7020–02–P INFORMATION. danger zone near the press. A

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Document Created: 2016-12-21 23:52:31
Document Modified: 2016-12-21 23:52:31

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		Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone 202-205-3042. 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.
FR Citation		81 FR 93960