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)

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.

[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]]

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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.

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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