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Certain Pet Food Treats; Issuance of a Limited Exclusion Order Against a Respondent Found in Default; Termination of Investigation

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U.S. International Trade Commission.




Notice is hereby given that the U.S. International Trade Commission has issued a limited exclusion order against a respondent found in default in the above-captioned investigation and has terminated the investigation.

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Michelle Walters, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-5468. 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 ( The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810.

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This patent-based section 337 investigation was instituted by the Commission based on a complaint filed by complainants, Thomas J. Baumgartner and Hillbilly Smokehouse, Inc., both of Rogers, Arkansas. 69 FR 32044 (June 8, 2004). The complainants alleged violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain pet food treats by reason of infringement of United States Design Patent No. 383,886 (the “886 patent”). The amended complaint named six respondents, including TsingTao ShengRong Seafood, Inc. of China (“TsingTao China”). The Commission has terminated the investigation as to the five other respondents based on findings of non-infringement, failure to prosecute, or settlement agreements. No petitions for review of the ALJ's Initial Determinations (“IDs”) were filed.

On August 19, 2004, complainants filed a motion for an order directed to several respondents, including TsingTao China, to show cause why they should not be found in default for failing to respond to the complaint and notice of investigation. TsingTao China did not file a response to complainants' motion. On October 4, 2004, the ALJ issued an Start Printed Page 37111order (Order No. 6) requiring TsingTao China to show cause why it should not be found in default. TsingTao China did not respond to the show cause order. On November 10, 2004, the ALJ issued an ID (Order No. 8), which was not reviewed by the Commission, finding respondent TsingTao China in default. On November 22, 2004, the complainants filed a motion for immediate relief against TsingTao China based on the ‘886 patent.

On April 13, 2005, the Commission issued a notice indicating (1) that it had determined not to review the ALJ's ID granting the Commission investigative attorney's (“IA”) motion for summary determination of no violation because of noninfringement of the ‘886 patent by Pet Center, Inc., and (2) that it was terminating the investigation as to the last respondent, Pet Center. 70 FR 20596 (April 20, 2005). The Commission also requested briefing on the issues of remedy, the public interest, and bonding relating to the default finding of unlawful importation and sale of infringing products by TsingTao China. Id. The IA submitted his brief on remedy, the public interest, and bonding and his proposed order on April 25, 2005. The complainants did not submit a brief or a proposed order and the respondent did not file a reply submission.

The Commission found that each of the statutory requirements of section 337(g)(1)(A)-(E), 19 U.S.C. 1337(g)(1)(A)-(E), has been met with respect to defaulting respondent TsingTao China. Accordingly, pursuant to section 337(g)(1), 19 U.S.C. 1337(g)(1), and Commission rule 210.16(c) 19 CFR 210.16(c), the Commission presumed the facts alleged in the amended complaint to be true. The Commission determined that the appropriate form of relief in this investigation is a limited exclusion order prohibiting the unlicensed entry of pet food treats covered by the ‘886 patent that are manufactured abroad by or on behalf of, or imported by or on behalf of, TsingTao China or any of its affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns. The Commission further determined that the public interest factors enumerated in section 337(g)(1), 19 U.S.C. 1337(g)(1), do not preclude issuance of the limited exclusion order. Finally, the Commission determined that the amount of bond to permit temporary importation during the Presidential review period shall be in the amount of 100 percent of the entered value of the infringing imported pet food treats. The Commission's order was delivered to the President on the day of its 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 section 210.16(c) of the Commission's Rules of Practice and Procedure (19 CFR 210.16(c)).

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Issued: June 22, 2005.

By order of the Commission.

Marilyn R. Abbott,

Secretary to the Commission.

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[FR Doc. 05-12684 Filed 6-27-05; 8:45 am]