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Notice

In the Matter of Certain Sucralose, Sweeteners Containing Sucralose, and Related Intermediate Compounds Thereof; Notice of Commission Issuance of a Limited Exclusion Order; Termination of Investigation

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AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has issued a limited exclusion order against eleven respondents in the above-captioned investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), and has terminated the investigation.

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FOR FURTHER INFORMATION CONTACT:

James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3065. 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.

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SUPPLEMENTARY INFORMATION:

The Commission instituted this investigation on May 10, 2007, based upon a complaint filed on behalf of Tate & Lyle Technology Ltd. of London, United Kingdom, and Tate & Lyle Sucralose, Inc. of Decatur, Illinois (collectively, “Tate & Lyle”). The complaint alleged violations of section 337(a)(1)(B) of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of sucralose, sweeteners containing sucralose, and related intermediate compounds thereof by reason of infringement of various claims of United States Patent Nos. 4,980,463 (“the `463 patent”); 5,470,969 (“the `969 Start Printed Page 16427patent”); 5,034,551 (“the `551 patent”); 5,498,709 (“the `709 patent”); and 7,049,435 (“the `435 patent”). The notice of investigation named twenty-five respondents.

On August 15, 2007, the Commission issued notice of its determination not to review an ID allowing JK Sucralose, Inc. (“JK Sucralose”) to intervene as a respondent in the investigation. On August 30, 2007, the Commission issued notice of its determination not to review an ID terminating the investigation with respect to ProFood International Inc. on the basis of a consent order. On October 3, 2007, the Commission issued notice of its determination not to review an ID adding Heartland Sweeteners, LLC (“Heartland Sweeteners”) as a respondent in the investigation. The respondents who remain parties to the investigation are therefore: Changzhou Niutang Chemical Plant Co. (“Changzhou Niutang Chemical”); Guangdong Food Industry Institute and L&P Food Ingredient Co., Ltd. (“GDFII”); Hebei Sukerui Science and Technology Co., Ltd. (“Hebei Sukerui Science”); JK Sucralose; Beijing Forbest Chemical Co., Ltd.; Beijing Forbest Trade Co., Ltd.; Forbest International USA, LLC; U.S. Niutang Chemical, Inc.; Garuda International, Inc.; Heartland Packaging Corporation; Heartland Sweeteners; MTC Industries, Inc.; Nantong Molecular Technology Co., Ltd.; AIDP, Inc.; Fortune Bridge Co., Inc. (“Fortune Bridge”); Nu-Scaan Nutraceuticals (“Nu-Scaan”); CJ America, Inc. (“CJ America”); Vivion, Inc. (“Vivion”); Gremount International Co., Ltd. (“Gremount”); Hebei Province Chemical Industry Academe (“Hebei Academe”); Hebei Research Institute of Chemical Industry (“Hebei Research”); Lianyungang Natiprol (Int'l) Co., Ltd. (“Lianyungang Natiprol”); Ruland Chemistry Co., Ltd. (“Ruland”); Shanghai Aurisco Trading Co., Ltd. (“Shanghai Aurisco”); and Zhongjin Pharmaceutical (Hong Kong) Co. (“Zhongjin”). Some of these respondents have been found in default.

On September 22, 2008, the presiding administrative law judge issued a final initial determination (“final ID”) finding no violation of section 337 (with the exception of certain non-participating and defaulted respondents). On October 6, 2008, Tate & Lyle, four sets of respondents, and the Commission investigative attorney (“IA”) each filed petitions for review. On November 21, 2008, the Commission issued notice of its determination to review the final ID in its entirety and requested briefing on the issues on review and on remedy, the public interest, and bonding, including responses to certain questions.

On review, the Commission found no violation on the merits with respect to the `463, `969, and `551 patents, for the reasons set forth in the Commission opinion. As to the `969 patent, respondents Shanghai Aurisco and Zhongjin were previously found to have defaulted. Additionally, the Commission found CJ America, Inc. to have admitted infringement and to have agreed to the entry of an exclusion order as to the `969 patent. As to the `709 and `435 patents, respondents Gremount, Hebei Academe, Lianyungang Natiprol, Ruland, and Hebei Research were previously found to have defaulted with respect to the `709 and `435 patents, and Shanghai Aurisco and Zhongjin were previously found to have defaulted with respect to the `709 patent. Additionally, the Commission found CJ America to have admitted infringement and to have agreed to the entry of a remedial order as to the `709 patent, that non-participating respondents Vivion and Fortune Bridge were subject to adverse inferences with respect to the `709 and `435 patents under Commission Rule 210.17, and that non-participating respondent Nu-Scaan was subject to adverse inferences with respect to the `709 patent under Commission Rule 210.17.

The Commission has determined that the appropriate form of relief in this investigation is a limited exclusion order prohibiting the unlicensed entry of certain sucralose and sweeteners containing sucralose by reason of infringement of one or more of claims 20, 21-26, 28, and 29 of the `969 patent by Shanghai Aurisco, Zhongjin, and CJ America; of claims 8, 9, and 13 of the `709 patent by Gremount, Hebei Academe, Lianyungang Natiprol, Hebei Research, Ruland, Shanghai Aurisco, Zhongjin, CJ America, Nu-Scaan, Vivion, and Fortune Bridge; and of claim 1 of the `435 patent by Gremount, Hebei Academe, Lianyungang Natiprol, Ruland, Hebei Research, Vivion, and Fortune Bridge, with the caveat that the order not apply to sucralose supplied to these respondents by the manufacturing respondents who were found to either not infringe or against whom infringement allegations were withdrawn as to the patents asserted in the investigation. These manufacturing respondents are Changzhou Niutang Chemical, GDFII, Hebei Sukerui Science, and JK Sucralose. The Commission further determined that the public interest factors enumerated in section 337(d)(1),(g)(1), 19 U.S.C. 1337(d)(1),(g)(1), do not preclude issuance of the limited exclusion order. Finally, the Commission determined that the bond under the limited exclusion order during the Presidential review period shall be in the amount of 100 percent of the entered value of the imported articles. The Commission's orders were delivered to the President and the United States Trade Representative on the day of their issuance.

The Commission has therefore terminated this investigation. 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 sections 210.16(c) and 210.41-.42, 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.16(c) and 210.41-.42, 210.50).

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Issued: April 9, 2009.

By order of the Commission.

Marilyn R. Abbott,

Secretary to the Commission.

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[FR Doc. E9-8154 Filed 4-9-09; 8:45 am]

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