[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Notices]
[Pages 71354-71355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29665]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-777]
Certain Muzzle-Loading Firearms and Components Thereof
Determination To Review in Part ALJ Initial Determination; Denial of
Temporary Relief
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the initial determination
(``ID'') issued by the presiding administrative law judge (``ALJ'') on
August 31, 2011, denying complainants' motion for temporary relief. The
Commission has determined not to review the ID's denial of temporary
relief and its analyses of irreparable harm. On review, the Commission
has determined to take no position on the remainder of the ID.
FOR FURTHER INFORMATION CONTACT: Erin D.E. Joffre, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 205-2550. 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
(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 June 17, 2011, based on a complaint filed by Thompson/Center Arms
Company, Inc. (``T/C'') and Smith & Wesson Corp. (``Smith & Wesson'')
of Springfield, Massachusetts (``Complainants''). 76 FR 35469 (Jun. 17,
2011). The complainants named seven respondents: (1) Dikar Sociedad
Cooperativa Limitada of Bergara, Spain; (2) Blackpowder Products Inc.
of Duluth, Georgia; (3) Connecticut Valley Arms of Duluth, Georgia; (4)
Bergara Barrels North America of Duluth, Georgia; (5) Bergara Barrels
Europe of Bergara, Spain; (6) Ardesa Firearms of Zamudio (Vizcaya),
Spain; and (7) Traditional Sporting Goods, Inc., d/b/a Traditions
Sporting Firearms of Saybrook, Connecticut. The complaint alleges
violations of section 337 based upon the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain muzzle-loading firearms and components
thereof by reason of infringement of certain claims of U.S. Patent No.
7,908,781 (``the `781 patent''); U.S. Patent No. 7,814,694 (``the `694
patent''); U.S. Patent No. 7,140,138 (``the `138 patent''); U.S. Patent
No. 6,604,311 (``the `311 patent''); U.S. Patent No. 5,782,030 (``the
`030 patent''); and U.S. Patent No. 5,639,981 (``the `981 patent''). On
July 8, 2011, the ALJ granted Complainants' motion to partially
terminate the investigation as to the `781 and `138 patents. Order No.
7 (July 8, 2011), Notice of Commission Determination Not to Review
(July 22, 2011).
The Complainants also filed with their complaint in this
investigation a motion for temporary relief directed only to
respondents Traditions and Ardesa (collectively, ``TEO Respondents'')
that requested the Commission to issue a temporary limited exclusion
order and temporary cease and desist orders. The
[[Page 71355]]
Complainants' motion for temporary relief initially addressed the `781,
`694, `138, `030, and `981 patents. During the initial pre-hearing
conference, however, the parties entered into a stipulation that
limited the Complainants' motion to the `694 patent--specifically,
claims 1, 10 and 11. The Initial Determination (``ID'') at issue is the
ALJ's denial of the Complainants' motion. In the subject ID, the ALJ
analyzed the four factors for determining whether to grant preliminary
relief: The likelihood of success on the merits, irreparable harm, the
balance of hardships, and the public interest.
The ID found that the Complainants had not demonstrated that they
would suffer irreparable harm. Specifically, the ID found that the
Complainants failed to demonstrate an irreparable harm from the
following: (1) Price erosion; (2) exclusivity erosion; (3) loss of
goodwill and reputation; (4) lost sales and market share; or (5)
reduced investment. The ALJ found that the lack of irreparable harm
precluded temporary relief in this investigation. The ALJ also found
the following: a likelihood of success on the merits with respect to
claim 10 of the `694 patent; that the balance of hardships did not
favor either party; and that the public interest would not preclude
preliminary relief.
On September 12, 2011, the TEO Respondents filed opening comments
and on September 14, 2011, the Complainants submitted reply comments as
authorized by 19 CFR 210.66(c), (e)(1). These comments do not take
issue with the ALJ's findings regarding the lack of irreparable harm.
Instead, the comments principally deal with Complainants' likelihood of
success on the merits, challenging various aspects of the ALJ's
analyses of infringement and the balance of hardships.
Having examined the record of this investigation, including the
ALJ's ID and the subsequent comments and reply comments, the Commission
finds that irreparable harm has not been demonstrated. It was
Complainants' burden to demonstrate that such harm was likely absent
temporary relief, and it failed to meet that burden. Winter v. Natural
Res. Defense Council, Inc., 129 S. Ct. 365, 375 (2008). The Commission
has therefore determined not to review the ID's finding of lack of
irreparable harm and the ID's denial of temporary relief.
Because irreparable harm is dispositive here, the Commission need
not evaluate the remaining factors, i.e., the likelihood of success on
the merits, the balance of hardships, or the public interest.
Therefore, the Commission has determined to review the ID's findings on
the likelihood of success, the balance of hardships, and the public
interest and to take no position on them. See Beloit Corp. v. Valmet
Oy, 742 F.2d 1421 (Fed. Cir. 1984).
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 section 210.66 of the Commission's Rules of Practice and Procedure
(19 CFR 210.66).
By order of the Commission.
Issued: November 10, 2011.
James Holbein,
Secretary to the Commission.
[FR Doc. 2011-29665 Filed 11-16-11; 8:45 am]
BILLING CODE 7020-02-P