[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Notices]
[Pages 60871-60872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25281]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-740]
In the Matter of Certain Toner Cartridges and Components Thereof;
Notice of Commission Final Determination of Violation of Section 337;
Termination of Investigation; Issuance of General Exclusion Order and
Cease and Desist Orders
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 in the above-captioned
investigation. The Commission has determined to issue a general
exclusion order and cease and desist orders. The investigation is
terminated.
FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-2301. 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
http://www.usitc.gov. The public record for this investigation may be
viewed on the Commission's electronic docket (EDIS) at http://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 October 12, 2010, based on a complaint filed by Lexmark
International, Inc. of Lexington, Kentucky (``Lexmark''). 75 FR 62564-
65 (Oct. 12, 2010). The complaint alleges violations of section 337 of
the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``Section 337''),
in the importation into the United States, the sale for importation,
and the sale within the United States after importation of certain
toner cartridges and components thereof by reason of infringement of
certain claims of U.S. Patent Nos. 5,337,032 (``the `032 patent'');
5,634,169 (``the `169 patent''); 5,758,233 (``the `233 patent'');
5,768,661 (``the `661 patent''); 5,802,432 (``the `432 patent'');
5,875,378 (``the `378 patent''); 6,009,291 (``the `291 patent'');
6,078,771 (``the `771 patent''); 6,397,015 (``the `015 patent'');
6,459,876 (``the `876 patent''); 6,816,692 (``the `692 patent'');
6,871,031 (``the `031 patent''); 7,139,510 (``the `510 patent'');
7,233,760 (``the `760 patent''); and 7,305,204 (``the `204 patent'').
The complaint further alleges the existence of a domestic industry.
The Commission's notice of investigation named as respondents
Ninestar Image Co. Ltd., (a/k/a Ninestar Technology Co., Ltd.) of
Guangdong, China (``Ninestar''); Ninestar Image Int'l, Ltd. of
Guangdong, China (``Ninestar Image Int'l''); Seine Image International
Co. Ltd. of New Territories, Hong Kong (``Seine Image''); Ninestar
Technology Company, Ltd. of Piscataway, New Jersey (``Ninestar Tech'');
Ziprint Image Corporation of Walnut, California (``Ziprint''); Nano
Pacific Corporation of South San Francisco, California (``Nano
Pacific''); IJSS Inc. (d/b/a TonerZone.com Inc. and Inkjet Superstore)
of Los Angeles, California (``IJSS''); Chung Pal Shin (d/b/a Ink
Master) of Cerritos, California (``Ink Master''); Nectron
International, Inc. of Sugarland, Texas (``Nectron''); Quality
Cartridges Inc. of Brooklyn, New York (``QCI''); Direct Billing
International Incorporated (d/b/a Office Supply Outfitter and d/b/a The
Ribbon Connection) of Carlsbad, California (``Direct Billing''); E-
Toner Mart, Inc. of South El Monte, California (``E-Toner''); Alpha
Image Tech of South El Monte, California (``Alpha Image''); ACM
Technologies, Inc. of Corona, California (``ACM''); Virtual Imaging
Products Inc. of North York, Ontario; Acecom Inc.--San Antonio (d/b/a
Inksell.com) of San Antonio, Texas (``Acecom''); Ink Technologies
Printer Supplies, LLC (d/b/a Ink Technologies LLC) of Dayton, Ohio
(``Ink Tech''); Jahwa Electronics Co., Ltd of Chungchongbuk-do, South
Korea; Huizhou Jahwa Electronics Co., Ltd. of Guangdong Province,
China; Copy Technologies, Inc. of Atlanta, Georgia (``Copy Tech'');
Laser Toner Technology, Inc. of Atlanta, Georgia (``LTT''); C&R
Service, Incorporated of Corinth, Texas (``C&R''); Print-Rite Holdings
Ltd., of Chai Wan, Hong Kong (``Print-Rite''); and Union Technology
Int'l (M.C.O.) Co., Ltd. of Rodrigo Rodrigues, Macao.
The Commission determined not to review an initial determination
terminating the investigation as to Print-Rite based on a settlement
agreement. Commission Notice (Jan. 10, 2011) (Order No. 11). The
Commission determined to review and affirm several initial
determinations finding several
[[Page 60872]]
respondents in default under Commission Rules 210.16(a)(2) and (b)(2)
based on those respondents' elections to default. Commission Notice
(Mar. 3, 2011) (Order Nos. 15-16); Commission Notice (Mar. 11, 2011)
(Order Nos. 17-18); Commission Notice (Mar. 11, 2011) (Order No. 19).
The Commission determined not to review two other initial
determinations finding the remaining respondents in default. Commission
Notice (Mar. 23, 2011) (Order No. 23); Commission Notice (April 6,
2011) (Order No. 24).
On April 25, 2011, Lexmark filed a motion pursuant to Commission
Rule 210.18 (19 CFR 210.18) for summary determination of violation of
Section 337 and requesting issuance of a general exclusion order and
cease and desist orders against defaulting respondents. On May 5, 2011,
the Commission investigative attorney (``IA'') filed a response
supporting the motion, on the condition that Lexmark submit the
following: (1) A declaration from its expert, Charles Reinholtz,
averring that the statements in his expert report are true and correct,
and (2) a declaration from Andrew Gardner that the accused products do
not have any substantial non-infringing uses. Lexmark filed the
submissions per the IA's request.
On June 1, 2011, the ALJ issued an initial determination (Order No.
26) (``ID'') granting Lexmark's motion for summary determination of
violation of Section 337. The ID also contained the ALJ's recommended
determination on remedy and bonding. Specifically, the ALJ recommended
issuance of a general exclusion order (``GEO'') and cease and desist
orders (``CDOs'') against the defaulting respondents. The ALJ further
recommended that the Commission set a bond of 100 percent during the
period of Presidential review.
On July 12, 2011, the Commission determined not to review the ID
and called for briefing on remedy, the public interest, and bonding. 76
FR 41822-24 (July 15, 2011). On August 1, 2011, Lexmark submitted an
initial brief on remedy, the public interest, and bonding, requesting
that the Commission issue a GEO and CDOs and set a bond of 100 percent
during the period of Presidential review. The brief included a proposed
GEO and a proposed CDO. Also on August 1, 2011, the IA submitted an
initial brief on remedy, the public interest, and bonding, supporting
Lexmark's request for a GEO and CDOs, as well as a bond of 100 percent.
The IA's brief also included a proposed GEO and a proposed CDO.
The Commission has determined that the appropriate form of relief
is the following: (1) A GEO under 19 U.S.C. 1337(d)(2), prohibiting the
unlicensed entry of toner cartridges and components thereof that
infringe one or more of claim 1 of the `032 patent; claims 1-3, 32, 33,
36, and 42 of the `169 patent; claims 1 and 2 of the `233 patent;
claims 1 and 2 of the `661 patent; claims 1-3 of the `432 patent;
claims 1, 2, and 14 of the `378 patent; claims 1 and 2 of the `291
patent; claims 1, 2, 5, 6, 10, and 15 of the `771 patent; claims 1, 2,
7, 10, 11, 14, 15, 17, 22, and 24 of the `015 patent; claims 1-3 and 28
of the `876 patent; claim 1 of the `692 patent; claims 1, 3, 5, 8, and
10 of the `031 patent; claims 1 and 6 of the `510 patent; claims 11,
12, and 14 of the `760 patent; and claims 1, 7, 14, and 15 of the `204
patent; and (2) CDOs directed to defaulting domestic respondents E-
Toner, Alpha Image, Copy Tech, LTT, C&R, ACM, Ink Master, Direct
Billing, Ink Tech, QCI, IJSS, Acecom, Ninestar Tech, Ziprint, Nano
Pacific, and Nectron and defaulting foreign respondents Ninestar,
Ninestar Image Int'l, and Seine Image.
The Commission has further determined that the public interest
factors enumerated in Section 337(d) and (f) (19 U.S.C. 1337(d), (f))
do not preclude issuance of the GEO and the CDOs. The Commission has
determined that the bond for temporary importation during the period of
Presidential review (19 U.S.C. 1337(j)) shall be in the amount of 100
percent of the value of the imported articles that are subject to the
order. The Commission's orders were delivered to the President and 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 sections 210.42-50 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42-50).
By order of the Commission.
Issued: September 27, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-25281 Filed 9-29-11; 8:45 am]
BILLING CODE 7020-02-P