83 FR 5805 - Certain Composite Aerogel Insulation Materials and Methods for Manufacturing the Same; Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order; Termination of the Investigation
INTERNATIONAL TRADE COMMISSION Federal Register Volume 83, Issue 28 (February 9, 2018)
Federal Register Volume 83, Issue 28 (February 9, 2018)
| Page Range | 5805-5806 | |
| FR Document | 2018-02577 |
[Federal Register Volume 83, Number 28 (Friday, February 9, 2018)] [Notices] [Pages 5805-5806] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-02577] [[Page 5805]] ----------------------------------------------------------------------- INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-1003] Certain Composite Aerogel Insulation Materials and Methods for Manufacturing the Same; Commission's Final Determination Finding a Violation of Section 337; 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 of the Tariff Act of 1930, as amended, in the unlawful importation, sale for importation, and sale after importation by respondents Nano Tech Co., Ltd. (``Nano'') of Zhejiang, China, and Guangdong Alison Hi-Tech Co., Ltd. (``Alison'') of Guangzhou, China, of certain composite aerogel insulation materials by reason of infringement of certain claims of U.S. Patent No. 7,078,359 (``the '359 patent''); U.S. Patent No. 6,989,123 (``the '123 patent''); and U.S. Patent No. 7,780,890 (``the '890 patent''). The Commission's determination is final, and the investigation is terminated. FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2392. 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 this investigation on June 8, 2016, based on a complaint filed by Aspen Aerogels, Inc. (``Aspen'') of Northborough, Massachusetts. 81 FR 36955-956 (Jun. 8, 2016). 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 composite aerogel insulation materials and methods for manufacturing the same by reason of infringement of certain claims of U.S. Patent No. 7,399,439 (``the '439 patent''); U.S. Patent No. 9,181,486 (``the '486 patent''); the '359 patent; the '123 patent; and the '890 patent. The complaint further alleges that an industry in the United States exists as required by 19 U.S.C. 1337(a)(2). The notice of investigation named Nano and Alison as respondents. The Office of Unfair Import Investigations (``OUII'') is also a party in this investigation. All asserted claims of the '439 patent and the '486 patent and certain asserted claims of the '359 have been terminated from the investigation. See Comm'n Notice (Nov. 2, 2016); Comm'n Notice (Feb. 9, 2017). Only claims 15-17, and 19 of the '123 patent; claims 1, 5, 7, 9, 12, 15, and 16 of the '359 patent; and claims 11-13, 15, 17-19, and 21 of the '890 patent (``the Asserted Claims'') remain in the investigation. On November 15, 2016, the presiding administrative law judge (``ALJ'') issued Order No. 19, granting Aspen's motion for summary determination that the economic prong of the domestic industry requirement has been satisfied under section 337(a)(3)(A) and (B). The Commission determined to review in part Order No. 19. See Comm'n Notice (Dec. 7, 2016). On review, the Commission affirmed with modification the summary determination that Aspen satisfies the economic prong of the domestic industry requirement. See id. at 1-2. On September 29, 2017, the ALJ issued the final initial determination (``ID''), finding a violation of section 337 by Respondents Alison and Nano in connection with claims 1, 5, 7, and 9 of the '359 patent; claims 15-17, and 19 of the '123 patent; and claims 11-13, 15, 17-19, and 21 of the '890 patent. The ID also found a violation of section 337 by Respondent Nano in connection with claims 12, 15, and 16 of the '359 patent. In addition, the ID found that Aspen has shown that its domestic industry products satisfy the technical prong of the domestic industry requirement for the Asserted Patents. The ID further found that Respondents have not shown that the Asserted Claims are invalid. The ID also contained the ALJ's Recommended Determination on remedy and bonding. On October 16, 2017, Respondents and OUII each filed a timely petition for review of the final ID. Respondents and OUII challenged certain of the ID's findings with respect to the validity of the Asserted Claims and the ID's findings with respect to claim 5 of the '359 patent. Respondent Alison separately challenged the ID's finding of infringement with respect to claim 9 of the '359 patent. That same day, Aspen filed a contingent petition for review of the final ID, challenging the ALJ's construction of two claim limitations in the '359 patent. On October 24, 2017, the parties filed timely responses to the petitions for review. On October 31, 2017, the parties filed their public interest comments pursuant to Commission Rule 210.50(a)(4). On November 30, 2017, the Commission determined to review the ID in part and requested briefing on issues it determined to review, and on remedy, the public interest, and bonding. 82 FR 57611-13 (Dec. 6, 2017). Specifically, with respect to the '359 patent, the Commission determined to review the ALJ's construction of the ``lofty fibrous batting'' limitation in claim 1 of the '359 patent. The Commission's review of the ``lofty fibrous batting'' limitation did not include the ID's finding that Respondents have not proven that the term is invalid for indefiniteness. The Commission also determined to review the ALJ's constructions of the additional limitations in claims 5 and 9, and the ``total surface area of that cross section'' limitation of claim 12 of the '359 patent, and the ID's associated findings on infringement and the technical prong of the domestic industry requirement with respect to those claims and claims 15 and 16 of the '359 patent. In addition, the Commission determined to review the ID's findings that the asserted claims of the '359 patent are not invalid in view of Ramamurthi by itself or in combination with other prior art. With respect to the '123 and the '890 patents, the Commission determined to review the ID's finding that claim 15 of the '123 patent and claims 11-13, 15, 17, and 21-23 of the '890 patent are not obvious in view of Ramamurthi and either Uchida or Yada. On December 15, 2017, Aspen and OUII each filed initial written submissions regarding issues on review, remedy, the public interest, and bonding. On the same day, Respondents jointly filed their initial written submission regarding issues on review, remedy, the public interest, and bonding. Responses to the initial written submissions were filed on December 22, 2017. Having examined the record of this investigation, including the parties' submissions and responses thereto, the Commission has determined that Aspen [[Page 5806]] has proven a violation of section 337: (1) Based on infringement of claims 1, 7, and 9 of the '359 patent; claims 15-17, and 19 of the '123 patent; and claims 11-13, 15, 17-19, and 21 of the '890 patent by Respondents Alison and Nano; and (2) based on infringement of claims 12, 15, and 16 of the '359 patent by Respondent Nano. Specifically, with respect to the '359 patent, the Commission affirms with modifications the ALJ's constructions of the ``lofty fibrous batting'' limitation in claim 1 and the ``about 1 to 20%'' limitation in claim 9. The Commission modifies the ALJ's constructions of the additional limitation in claim 5 and the ``the total surface area of that cross section'' limitation in claim 12. Applying these claim constructions, the Commission affirms the ID's findings that Respondents infringe claims 1, 7 and 9, and that Respondent Nano infringes claims 12, 15, and 16, but reverses the ID's finding that Respondents infringe claim 5. The Commission also reverses the ID's finding that Aspen's domestic industry products practice claim 5, but affirms the ID's finding that Aspen's domestic industry products practice the other asserted claims of the '359 patent. The Commission further affirms with modifications the ID's findings that claims 1, 5, 7, 9, and 12 of the '359 patent are not anticipated by Ramamurthi and that claims 9 and 16 are not rendered obvious in view of Ramamurthi and other prior art. The Commission takes no position on the ID's findings on secondary considerations of nonobviousness, With respect to the '123 patent and the '890 patent, the Commission affirms with modifications the ID's findings that claim 15 of the '123 patent and claims 11-13, 15, 17, and 21-23 of the '890 patent are not obvious in view of Ramamurthi and either Uchida or Yada. As with the '359 patent, the Commission takes no position on the ID's findings on secondary considerations of nonobviousness. The Commission has determined that the appropriate form of relief is a limited exclusion order prohibiting the unlicensed entry of infringing composite aerogel insulation materials that 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. The Commission has carefully considered the submissions of the parties and has determined that the public interest factors enumerated in section 337(d) do not preclude issuance of its order. Finally, the Commission has determined that excluded composite aerogel insulation materials may be imported and sold in the United States during the period of Presidential review (19 U.S.C. 1337(j)) with the posting of a bond of one-hundred (100) percent of the entered value for all infringing products manufactured by, for, or on behalf of Respondents. The Commission's Order 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: February 5, 2018. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2018-02577 Filed 2-8-18; 8:45 am] BILLING CODE 7020-02-P
![Federal Register / Vol. 83, No. 28 / Friday, February 9, 2018 / Notices 5805
INTERNATIONAL TRADE U.S.C. 1337, in the importation into the findings with respect to the validity of
COMMISSION United States, the sale for importation, the Asserted Claims and the ID’s
and the sale within the United States findings with respect to claim 5 of the
[Investigation No. 337–TA–1003]
after importation of certain composite ’359 patent. Respondent Alison
Certain Composite Aerogel Insulation aerogel insulation materials and separately challenged the ID’s finding of
Materials and Methods for methods for manufacturing the same by infringement with respect to claim 9 of
Manufacturing the Same; reason of infringement of certain claims the ’359 patent. That same day, Aspen
Commission’s Final Determination of U.S. Patent No. 7,399,439 (‘‘the ’439 filed a contingent petition for review of
Finding a Violation of Section 337; patent’’); U.S. Patent No. 9,181,486 (‘‘the the final ID, challenging the ALJ’s
Issuance of a Limited Exclusion Order; ’486 patent’’); the ’359 patent; the ’123 construction of two claim limitations in
Termination of the Investigation patent; and the ’890 patent. The the ’359 patent. On October 24, 2017,
complaint further alleges that an the parties filed timely responses to the
AGENCY: U.S. International Trade industry in the United States exists as petitions for review. On October 31,
Commission. required by 19 U.S.C. 1337(a)(2). The 2017, the parties filed their public
ACTION: Notice. notice of investigation named Nano and interest comments pursuant to
Alison as respondents. The Office of Commission Rule 210.50(a)(4).
SUMMARY: Notice is hereby given that Unfair Import Investigations (‘‘OUII’’) is On November 30, 2017, the
the U.S. International Trade also a party in this investigation. Commission determined to review the
Commission has found a violation of All asserted claims of the ’439 patent ID in part and requested briefing on
Section 337 of the Tariff Act of 1930, as and the ’486 patent and certain asserted issues it determined to review, and on
amended, in the unlawful importation, claims of the ’359 have been terminated remedy, the public interest, and
sale for importation, and sale after from the investigation. See Comm’n bonding. 82 FR 57611–13 (Dec. 6, 2017).
importation by respondents Nano Tech Notice (Nov. 2, 2016); Comm’n Notice Specifically, with respect to the ’359
Co., Ltd. (‘‘Nano’’) of Zhejiang, China, (Feb. 9, 2017). Only claims 15–17, and patent, the Commission determined to
and Guangdong Alison Hi-Tech Co., 19 of the ’123 patent; claims 1, 5, 7, 9, review the ALJ’s construction of the
Ltd. (‘‘Alison’’) of Guangzhou, China, of 12, 15, and 16 of the ’359 patent; and ‘‘lofty fibrous batting’’ limitation in
certain composite aerogel insulation claims 11–13, 15, 17–19, and 21 of the claim 1 of the ’359 patent. The
materials by reason of infringement of ’890 patent (‘‘the Asserted Claims’’) Commission’s review of the ‘‘lofty
certain claims of U.S. Patent No. remain in the investigation. fibrous batting’’ limitation did not
7,078,359 (‘‘the ’359 patent’’); U.S. On November 15, 2016, the presiding include the ID’s finding that
Patent No. 6,989,123 (‘‘the ’123 patent’’); administrative law judge (‘‘ALJ’’) issued Respondents have not proven that the
and U.S. Patent No. 7,780,890 (‘‘the ’890 Order No. 19, granting Aspen’s motion term is invalid for indefiniteness. The
patent’’). The Commission’s for summary determination that the Commission also determined to review
determination is final, and the economic prong of the domestic the ALJ’s constructions of the additional
investigation is terminated. industry requirement has been satisfied limitations in claims 5 and 9, and the
under section 337(a)(3)(A) and (B). The ‘‘total surface area of that cross section’’
FOR FURTHER INFORMATION CONTACT:
Commission determined to review in limitation of claim 12 of the ’359 patent,
Cathy Chen, Esq., Office of the General
part Order No. 19. See Comm’n Notice and the ID’s associated findings on
Counsel, U.S. International Trade
(Dec. 7, 2016). On review, the infringement and the technical prong of
Commission, 500 E Street SW,
Commission affirmed with modification the domestic industry requirement with
Washington, DC 20436, telephone (202) the summary determination that Aspen respect to those claims and claims 15
205–2392. Copies of non-confidential satisfies the economic prong of the and 16 of the ’359 patent. In addition,
documents filed in connection with this domestic industry requirement. See id. the Commission determined to review
investigation are or will be available for at 1–2. the ID’s findings that the asserted claims
inspection during official business On September 29, 2017, the ALJ of the ’359 patent are not invalid in
hours (8:45 a.m. to 5:15 p.m.) in the issued the final initial determination view of Ramamurthi by itself or in
Office of the Secretary, U.S. (‘‘ID’’), finding a violation of section 337 combination with other prior art. With
International Trade Commission, 500 E by Respondents Alison and Nano in respect to the ’123 and the ’890 patents,
Street SW, Washington, DC 20436, connection with claims 1, 5, 7, and 9 of the Commission determined to review
telephone (202) 205–2000. General the ’359 patent; claims 15–17, and 19 of the ID’s finding that claim 15 of the ’123
information concerning the Commission the ’123 patent; and claims 11–13, 15, patent and claims 11–13, 15, 17, and
may also be obtained by accessing its 17–19, and 21 of the ’890 patent. The ID 21–23 of the ’890 patent are not obvious
internet server at https://www.usitc.gov. also found a violation of section 337 by in view of Ramamurthi and either
The public record for this investigation Respondent Nano in connection with Uchida or Yada.
may be viewed on the Commission’s claims 12, 15, and 16 of the ’359 patent. On December 15, 2017, Aspen and
electronic docket (EDIS) at https:// In addition, the ID found that Aspen has OUII each filed initial written
edis.usitc.gov. Hearing-impaired shown that its domestic industry submissions regarding issues on review,
persons are advised that information on products satisfy the technical prong of remedy, the public interest, and
this matter can be obtained by the domestic industry requirement for bonding. On the same day, Respondents
contacting the Commission’s TDD the Asserted Patents. The ID further jointly filed their initial written
terminal on (202) 205–1810. found that Respondents have not shown submission regarding issues on review,
SUPPLEMENTARY INFORMATION: The
sradovich on DSK3GMQ082PROD with NOTICES
that the Asserted Claims are invalid. remedy, the public interest, and
Commission instituted this investigation The ID also contained the ALJ’s bonding. Responses to the initial written
on June 8, 2016, based on a complaint Recommended Determination on submissions were filed on December 22,
filed by Aspen Aerogels, Inc. (‘‘Aspen’’) remedy and bonding. 2017.
of Northborough, Massachusetts. 81 FR On October 16, 2017, Respondents Having examined the record of this
36955–956 (Jun. 8, 2016). The complaint and OUII each filed a timely petition for investigation, including the parties’
alleges violations of section 337 of the review of the final ID. Respondents and submissions and responses thereto, the
Tariff Act of 1930, as amended, 19 OUII challenged certain of the ID’s Commission has determined that Aspen
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![5806 Federal Register / Vol. 83, No. 28 / Friday, February 9, 2018 / Notices
has proven a violation of section 337: (1) Finally, the Commission has internet server (https://www.usitc.gov).
Based on infringement of claims 1, 7, determined that excluded composite The public record for this investigation
and 9 of the ’359 patent; claims 15–17, aerogel insulation materials may be may be viewed on the Commission’s
and 19 of the ’123 patent; and claims imported and sold in the United States electronic docket (EDIS) at https://
11–13, 15, 17–19, and 21 of the ’890 during the period of Presidential review edis.usitc.gov. Hearing-impaired
patent by Respondents Alison and (19 U.S.C. 1337(j)) with the posting of a persons are advised that information on
Nano; and (2) based on infringement of bond of one-hundred (100) percent of this matter can be obtained by
claims 12, 15, and 16 of the ’359 patent the entered value for all infringing contacting the Commission’s TDD
by Respondent Nano. products manufactured by, for, or on terminal at 202–205–1810.
Specifically, with respect to the ’359 behalf of Respondents. The SUPPLEMENTARY INFORMATION: On
patent, the Commission affirms with Commission’s Order and Opinion were September 15, 2017, the Commission
modifications the ALJ’s constructions of delivered to the President and to the instituted this investigation under
the ‘‘lofty fibrous batting’’ limitation in United States Trade Representative on section 337 of the Tariff Act of 1930, as
claim 1 and the ‘‘about 1 to 20%’’ the day of their issuance. amended, 19 U.S.C. 1337 (‘‘section
limitation in claim 9. The Commission The authority for the Commission’s 337’’), based on a complaint and an
modifies the ALJ’s constructions of the determination is contained in section amended complaint filed by Aqua
additional limitation in claim 5 and the 337 of the Tariff Act of 1930, as Shield, Inc. of West Babylon, NY
‘‘the total surface area of that cross amended (19 U.S.C. 1337), and in Part (‘‘Aqua Shield’’). 82 FR 43402, 43402–
section’’ limitation in claim 12. 210 of the Commission’s Rules of 03 (Sept. 15, 2017). The complaint, as
Applying these claim constructions, the Practice and Procedure (19 CFR part amended, alleges a violation of section
Commission affirms the ID’s findings 210). 337 by reason of infringement of certain
that Respondents infringe claims 1, 7
By order of the Commission. claims of U.S. Patent No. U.S. Patent
and 9, and that Respondent Nano
Issued: February 5, 2018. No. 6,637,160. The complaint named as
infringes claims 12, 15, and 16, but
Lisa R. Barton, respondents Inter Pool Cover Team of
reverses the ID’s finding that
Secretary to the Commission. the Czech Republic; Alukov HZ Spol.
Respondents infringe claim 5. The
S.R.O. of the Czech Republic; Alukov,
Commission also reverses the ID’s [FR Doc. 2018–02577 Filed 2–8–18; 8:45 am]
Spol. S.R.O. of Slovakia; Pool & Spa
finding that Aspen’s domestic industry BILLING CODE 7020–02–P
Enclosures, LLC, of Monroe Township,
products practice claim 5, but affirms
the ID’s finding that Aspen’s domestic NJ; and Poolandspa.com of Las Vegas,
industry products practice the other INTERNATIONAL TRADE NV (collectively, ‘‘Respondents’’). Id.
asserted claims of the ’359 patent. The COMMISSION The Office of Unfair Import
Commission further affirms with Investigations (‘‘OUII’’) is also a party in
[Investigation No. 337–TA–1069] this investigation. Id.
modifications the ID’s findings that
claims 1, 5, 7, 9, and 12 of the ’359 On January 5, 2018, Aqua Shield and
Certain Pool Spa Enclosures; Notice of Respondents filed a joint motion to
patent are not anticipated by Commission Determination Not To
Ramamurthi and that claims 9 and 16 terminate this investigation as to all
Review an Initial Determination (Order respondents based on a settlement
are not rendered obvious in view of No. 9) Terminating the Investigation;
Ramamurthi and other prior art. The agreement (the ‘‘Agreement’’). OUII filed
Termination of the Investigation a response supporting the motion.
Commission takes no position on the
ID’s findings on secondary AGENCY: U.S. International Trade On January 23, 2018, the presiding
considerations of nonobviousness, Commission. administrative law judge (Chief Judge
With respect to the ’123 patent and ACTION: Notice. Bullock) issued the ID, which grants the
the ’890 patent, the Commission affirms motion. The ID finds that the private
with modifications the ID’s findings that SUMMARY: Notice is hereby given that parties’ motion complies with
claim 15 of the ’123 patent and claims the U.S. International Trade Commission Rule 210.21(b), finding that
11–13, 15, 17, and 21–23 of the ’890 Commission (the ‘‘Commission’’) has the parties have provided a confidential
patent are not obvious in view of determined not to review a January 23, and a public version of the Agreement,
Ramamurthi and either Uchida or Yada. 2018, initial determination (Order No. 9) and also finding that the parties’ motion
As with the ’359 patent, the (the ‘‘ID’’) granting a joint motion to states that ‘‘[t]here are no other
Commission takes no position on the terminate this investigation based on a agreements, written or oral, express or
ID’s findings on secondary settlement agreement. This investigation implied, regarding the subject matter of
considerations of nonobviousness. is terminated. this Investigation.’’ The ID further
The Commission has determined that FOR FURTHER INFORMATION CONTACT: Ron considers the public interest, as is
the appropriate form of relief is a Traud, Office of the General Counsel, required under Commission Rule
limited exclusion order prohibiting the U.S. International Trade Commission, 210.50(b)(2), and determines that the
unlicensed entry of infringing 500 E Street SW, Washington, DC ‘‘termination of this Investigation does
composite aerogel insulation materials 20436, telephone (202) 205–3427. not impose any undue burdens on the
that are manufactured abroad by or on Copies of non-confidential documents public health and welfare, competitive
behalf of, or imported by or on behalf filed in connection with this conditions in the United States
of Respondents or any of their affiliated investigation are or will be available for economy, production of like or directly
companies, parents, subsidiaries, or inspection during official business competitive articles in the United
sradovich on DSK3GMQ082PROD with NOTICES
other related business entities, or their hours (8:45 a.m. to 5:15 p.m.) in the States, or United States consumers.’’
successors or assigns. The Commission Office of the Secretary, U.S. Accordingly, the ID grants the motion.
has carefully considered the International Trade Commission, 500 E No petitions for review of the ID were
submissions of the parties and has Street SW, Washington, DC 20436, filed.
determined that the public interest telephone 202–205–2000. General The Commission has determined not
factors enumerated in section 337(d) do information concerning the Commission to review the ID. This investigation is
not preclude issuance of its order. may also be obtained by accessing its terminated.
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Document Created: 2018-02-09 00:12:07
Document Modified: 2018-02-09 00:12:07
| 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 | Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2392. 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. | |
| FR Citation | 83 FR 5805 |
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