Certain Road Construction Machines and Components Thereof; Commission Determination To Modify Remedial Orders; Termination of Modification Proceeding

Lisa Barton
International Trade Commission
4 September 2020

[Federal Register Volume 85, Number 173 (Friday, September 4, 2020)]
[Notices]
[Pages 55320-55321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19585]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1088 (Modification)]


Certain Road Construction Machines and Components Thereof; 
Commission Determination To Modify Remedial Orders; Termination of 
Modification Proceeding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``Commission'') has determined to adopt the findings of the 
presiding Administrative Law Judge (``ALJ'') in the Recommended 
Determination (``RD'') and modify the limited exclusion order (``LEO'') 
and cease and desist order (``CDO'') issued in this investigation. The 
modification proceeding is terminated.

FOR FURTHER INFORMATION CONTACT: Houda Morad, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-4716. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
EDIS3Help@usitc.gov. General information concerning the Commission may 
also be obtained by accessing its internet server at https://www.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 the underlying 
investigation on November 29, 2017, based on a complaint filed by 
Caterpillar Inc. of Peoria, Illinois and Caterpillar Paving Products, 
Inc. of Minneapolis, Minnesota (collectively, ``Caterpillar''). See 82 
FR 56625-26 (Nov. 29, 2017). The complaint, as supplemented, alleges 
violations of section 337 of the Tariff Act of 1930, as amended (19 
U.S.C. 1337) (``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 road construction machines and 
components thereof by reason of infringement of certain claims of U.S. 
Patent Nos. 7,140,693 (``the '693 patent''), 9,045,871, and 7,641,419. 
See id. The notice of investigation names as respondents Wirtgen GmbH 
and Wirtgen Group Holding GmbH, both of Windhagen, Germany; Joseph 
V[ouml]gele AG of Ludwigshafen, Germany; and Wirtgen America, Inc. of 
Antioch, Tennessee (``Wirtgen America'') (collectively, ``Wirtgen''). 
See id. The Office of Unfair Import Investigations was not a party to 
this investigation. See id.
    On June 27, 2019, the Commission found a violation of section 337 
in the underlying investigation based on the infringement of claim 19 
of the '693 patent, and issued an LEO against the infringing articles 
imported by Wirtgen and a CDO (collectively, ``the remedial orders'') 
against Wirtgen America. See 84 FR 31910-11 (July 3, 2019).
    On January 16, 2020, the Commission determined to institute a 
modification proceeding under 19 U.S.C. 1337(k) and 19 CFR 210.76 to 
adjudicate Wirtgen's assertion that the remedial orders do not cover 
its redesigned series 1810 machines. See 85 FR 3944 (Jan. 23,

[[Page 55321]]

2020). On June 22, 2020, the ALJ issued the subject RD finding no 
infringement of claim 19 of the '693 patent by Wirtgen's redesigned 
series 1810 machines.
    On July 2, 2020, both Caterpillar and Wirtgen filed comments 
concerning the RD's findings, and on July 10, 2020, the parties filed 
responses to each other's comments. Wirtgen challenges the legality of 
the modification proceeding and the RD's finding that Wirtgen bears the 
burden of proof in such proceeding. In addition, Wirtgen faults the RD 
for construing a claim term, which, according to Wirtgen, is not 
permissible in the context of a modification proceeding. Caterpillar 
disagrees with the RD's claim construction and the RD's finding that 
Wirtgen's redesigned machines do not infringe claim 19 of the '693 
patent.
    Having reviewed the record of the underlying violation 
investigation, as well as the record of the modification proceeding, 
including the RD and the parties' comments and responses thereto, the 
Commission has modified the LEO and CDO to include an explicit carve-
out with respect to Wirtgen's redesigned series 1810 machines as stated 
in the accompanying Order. Specifically, the Commission affirms the 
RD's claim construction determination and noninfringement findings as 
to the redesigned series 1810 machine. The Commission rejects Wirtgen's 
challenges to the scope of the LEO and CDO, as issued, and Wirtgen's 
challenges to the propriety of this modification proceeding. The 
Commission's decisions are explained more fully in the Commission 
Opinion that accompanies this notice.
    The Commission vote for this determination took place on August 31, 
2020.
    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: August 31, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-19585 Filed 9-3-20; 8:45 am]
BILLING CODE 7020-02-P