certain amorphous metal alloys and amorphous metal articles

368 Pages·2010·45.02 MB·English

In the Matter of
CERTAIN AMORPHOUS METAL ALLOYS
AND AMORPHOUS METAL ARTICLES
Investigation No. 337-TA-143
USITC PUBLICATION 1664
NOVEMBER 1984
UNITED STATES INTERNATIONAL TRADE COMMISSION
COMMISSIONERS
Paula Stern, Chairwoman
Susan W. Liebeler, Vice Chairman.
Alfred E. Eckes
Seeley G. Lodwick
David B. Ro_hr
Address all communications to
Kenneth R. Mason, Secretary to the Commission
United States International Trade Commission
Washington, DC 20436
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OCT
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OFFICE OF THE SECI?ETARY
U.S. INTL, TR4DE COMMI
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UNITED STATES INTERNATIONAL TRADE COMMISSION SSION
Washington, D.C. 20436
)
In the Matter of )
) Investigation No. 337-TA-143
CERTAIN AMORPHOUS METAL ALLOYS )
AND AMORPHOUS METAL ARTICLES )
)
)
)
NOTICE OF ISSUANCE OF GENERAL EXCLUSION ORDER
AGENCY: U.S. International Trade Commission.
ACTION: Notice is hereby given that the Commission has issued'a general
exclusion order in the above-captioned investigation.
AUTHORITY: 19 U.S.C. 9 1337.
SUPPLEMENTARY INFORMATION: By virtue of the Commission's decision not to
review the presiding officer's May 14, 1984, initial determination, the
subject investigation resulted in a Commission determination that there is a
violation of section 337 of the Tariff Act of 1930 (19 U.S.C. S 1337 and 19
U.S.C. 9 1337a) in the importation of certain amorphous metal articles. The
Commission found that all respondents except for Hitachi Ltd. had engaged in
unfair acts in connection with the importation of amorphous metal articles
mane by a process that would infringe claims 1, 2, 3, 5, 8, or 12 of U.S.
Letters Patent 4,221,257 if the process were practiced in the United States.
Such unfair acts were found to have a tendency to substantially injure an
inaustry, efficiently and economically cperated, in the United States.
A notice soliciting written comments on the issues of remedy, the public
interest, and bonding was published in the Federal Register of July 13, 1984,
(49 F.R. 29519). In addition to submissions filed by the parties, the
Commission received letters or statements filed on behalf of interested
members of the public and a national laboratory operated by the U.S.
Department of Energy.
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On October 15, 1984, the Commission determined that a general exclusion
order pursuant to section 337(d) is the appropriate remedy, that the public
interest considerations enumerated in section 337(d) do not preclude such
relief, and that the amount of the bond during the Presidential review period
under section 337(g) shall be 100 percent of the entered value of the imported
articles. The order does not apply to articles imported by and for the use of
the United States, or imported for, and to be used for, the United States with
the authorization or consent of the Government.
Copies of the Commission's Action And Order, its Opinion in support
tnereot, and all other nonconfidential documents filed in connection with this
investigation are available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, Docket Section, U.S.
International Trade Commission, 701 E Street NW., Washington, DC 20436,
telephone 2U2-523-0471.
FOR FURTHER INFORMATION CONTACT: P.N. Smithey, Esq., Office of the General
Counsel, U.S. International Trade Commission, telephone [phone].
By oraer of the Commission.
Kenneth R. Mason
Secretary
Issued: October 15, 1984
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C. 20436
)
In the Matter of )
) Investigation No. 337—TA-143
CERTAIN AMORPHOUS METAL ALLOYS )
AND AMORPHOUS METAL ARTICLES )
)
)
COMMISSION ACTION AND ORDER
Background
A complaint was filed with the Commission on March 11, 1983, by Allied
Corp., alleging unfair acts and methods of competition in the importation and
sale of certain amorphous metal alloys and amorphous metal articles. The
Commission on April 13, 1983, instituted the above—captioned investigation to
determine whether there is a violation of section 337 of the Tariff Act of
1930 (19 U.S.C. 9 1337 and'19 U.S.C. 9 1337a) in the importation of certain
amorphous metal alloys and amorphous metal articles into the United States, or
in their sale, by reason of alleged infringement of U.S. Letters Patents
3,856,513, 4,331,739, and 4,221,257, the effect or tendency of which is to
aestroy or substantially injure an industry, efficiently and economically
operated, in the United States. 48 F.R. 15963.
On May 14, 1984, the presiding officer issued an initial determination
that there is a violation of section 337 in the importation of certain
amorphous metal articles. The presiding officer determined that all
respondents except Hitachi Ltd. had engaged in unfair acts in the importation
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of amorphous metal articles made by a process that would infringe claims 1-3,
5, 8, or 12 of U.S. Letters Patent 4,221,257 if the process were practiced in
the United States. The presiding officer also found that the respondents'
unfair acts had the tendency to substantially injure an industry, efficiently
and economically operated, in the United States.
On July 6, 1984, the Commission determined not to review the initial
determination, thereby adopting the initial determination as the Commission's
determination on violation of section 337. 1/
A notice soliciting written comments on the issues of remedy, public
interest, and bonding was published in the Federal Register on July 13, 1984
(49 F.R. 29159). In addition to submissions from the parties, the Commission
received submissions from interested members of the public and a national
labororatory operated by the Department of Energy.
Action
Having determined that the issues of remedy, public interest, and bonding
are properly before the Commission, and having reviewed the aforesaid written
submissions and the information relating to those issues on the record, the
Commission has determined to issue a general exclusion order prohibiting entry
of amorphous metal articles made by a process that would infringe claims 1, 2,
3, 5, 8, or 12 of U.S. Letters Patent 4,221,257, if practiced in the United
States, except under license of the patent owner and as provided by law. The
Commission also has determined that the public-interest factors enumerated in
section 337(d) (19 U.S.C. 4 1337(d)) do not preclude issuance of such an
1/ The Commission notes that its determination is based in part on the
sanctions imposed in Order No. 32 against the Japanese-based respondent listed
in the notice of investigation as TDK Electronics, Co., Ltd.
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exclusion order, and that the bond during the presidential review period
should be in the amount of 100 percent of the entered value of the imported
articles.
Order
Accordingly it is hereby ORDERED that--
1. Amorphous metal articles manufactured abroad in accordance with the
process set forth in claims 1, 2, 3, 5, 8, and/or 12 of U.S. Letters
Patent 4,221,257 are excluded from entry into the United States for
the remaining term of said patent except (1) as provided in
paragraphs 2 and 3 of this order, or (2) as licensed by the patent
owner;
2. Pursuant to 19 U.S.C. § 1337(i), this Order shall not apply to
articles imported by and for the use of the United States, or
imported for, and to be used for, the United States with the
authorization or consent of the Government;
3. The amorphous metal articles ordered to be excluded are entitled to
entry into the United States under bond in the amount of 100 percent
of the entered value of the subject articles, from the day after
this order is received by the President pursuant to subsection (g)
of section 337 of the Tariff Act of 1930, until such time as the
President notifies the Commission that he approves or disapproves
this action, but, in any event, no later than 60 days after the date
of such receipt;
4. Notice of this Action and Order shall be published in the Federal
Register;
5. A copy of this Action and Order and of the Commission Opinion in
support thereof shall be served upon each party of record in this
investigation and upon the Department of Health and Human Services,
the Department of Justice, the Federal Trade Commission, and the
Secretary of Treasury; and
6. The Commission may amend this Order in accordance with the procedure
described in 19 CFR § 211.57.
By order of the Commission.
enneth R. Mason
Secretary
Issued: October 15, 1984
.
./
PUBLIC INSPECTION COPY (Confidential Business Information Deleted) *
586110
UNITED STATES INTERNATIONAL TRADE COMMISSION r • . ...•; I
Washington, DC 20436 "'

)
In the Matter of )
) Investigation No. 337—TA-143
CERTAIN AMORPHOUS METAL ALLOYS )
AND AMORPHOUS METAL ARTICLES )
)
)
COMMISSION OPINION ON REMEDY, THE PUBLIC INTEREST, AND BONDING
I. Remedy
We have determined that a general exclusion order is the appropriate
remedy for the violation in this case, since the facts in the record
demonstrate that the guidelines for the issuance of general exclusion orders
promulgated by the Commission in investigation No. 337—TA-90, Certain Airless
Paint Spray Pumps And Components Thereof have been met. 1/
In Paint Spray Pumps, we indicated that, in order for a complainant to
obtain a general exclusion order, a complainant must prove (1) a widespread
pattern of unauthorized use of the patented invention and (2) the existence of
business conditions from which it could be inferred that foreign manufacturers
*/ All confidential business information has been replaced by asterisks.
1/ The following abbreviations will be used in this opinion: ALJ--the
administrative law judge; CX—complainant's exhibit; CPX—complainant's
physical exhibit; FF—finding of fact appended to the ALJ's initial
determination; ID—the ALJ's initial determination; RX—respondents' exhibit;
SX--Commission investigative attorne0 exhibit; Tr.--evidentiary hearing
transcript. The citations to.tbe:)rOCoralfaVappear in this opinion are
representative of the information obtained on . thka—points in question but do
not include such all informatip.n., A , „
51098.3
7! 7
PUBLIC INSPECTION COPY (Confidential Business Information Deleted)
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other than the respondents might attempt to enter the U.S. market with
infringing articles. The purpose of these requirements was "to balance the
complainant's interest in obtaining complete protection from all potential
foreign infringers with the inherent potential of a general exclusion order to
disrupt legitimate trade." 2/
In the present investigation, there is a widespread pattern of
unauthorized use of the patented invention. All of the amorphous metal
articles accused in this investigation were found to be made by a process that
would infringe claims 1, 2, 3, 5, 8, and/or 12 of U.S. Letters Patent
4,221,257 (the '257 patent) if the process were performed in the United
States. 3/ The infringing articles were manufactured by three respondents in
Japan and by one respondent in Germany. 4/ The record shows that respondents'
sampling activities have been widespread. At least * * * * * potential
customers in the United States were involved. 5/
Business conditions in the United States and the world with respect to
amorphous metals are such that it reasonably can be inferred that foreign
manufacturers other than the respondents might attempt to enter the U.S.
market with articles produced according to the patented process. There is an
established demand for the amorphous metal articles made by the patented
process in the power electromagnetics, pulse power, electronics, security
strip, and brazing markets. 6/ Some U.S. consumers of amorphous metals in
2/ USITC Pub. 1199 (November 1981) at 18. See also Certain Self—Stripping
Electrical Tap Connectors, Inv. No. 337—TA-150 (October 1984); Certain
Caulking Guns, Inv. No. 337—TA-139, USITC Pub. 1507 (March 1984); Certain
Heavy—Duty Staple Gun Tackers, Inv. No. 337—TA-137, USITC Pub. 1506 (March
1984).
3/ ID at 61-73; FF 446-94, 516-53.
4/ Id.; Order No. 32; FF 7, 12, 15, 17.
5/ FF 905-1093.
6/ ID at 117-24.