Notice2021-20984
Certain Chemical Mechanical Planarization Slurries and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding
Primary source
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Published
September 28, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the Administrative Law Judge's ("ALJ") final initial determination ("ID") issued on July 8, 2021, finding a violation of section 337 in the above-referenced investigation. The Commission requests briefing from the parties on certain issues under review, as indicated in this notice, and submissions from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding as indicated in this notice under the schedule set forth below.
Full Text
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<title>Federal Register, Volume 86 Issue 185 (Tuesday, September 28, 2021)</title>
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[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Notices]
[Pages 53674-53676]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20984]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1204]
Certain Chemical Mechanical Planarization Slurries and Components
Thereof; Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions on the Issues Under Review and on Remedy, the Public
Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the Administrative Law
Judge's (``ALJ'') final initial determination (``ID'') issued on July
8, 2021, finding a violation of section 337 in the above-referenced
investigation. The Commission requests briefing from the parties on
certain issues under review, as indicated in this notice, and
submissions from the parties, interested government agencies, and
interested persons on the issues of remedy, the public interest, and
bonding as indicated in this notice under the schedule set forth below.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3042. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#5c1918150f6f1439302c1c292f35283f723b332a"><span class="__cf_email__" data-cfemail="c580818c96f68da0a9b585b0b6acb1a6eba2aab3">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. 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: On July 7, 2020, the Commission instituted
this investigation under section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``section 337''), based on a complaint filed
by Cabot Microelectronics Corporation (``CMC'') of Aurora, Illinois. 85
FR 40685-86 (July 7, 2020). The complaint, as supplemented, alleges
violations of section 337 in the importation into the United States,
the sale for importation, or the sale within the United States after
importation of certain chemical mechanical planarization (``CMP'')
slurries and components thereof by reason of infringement of one or
more of claims 1, 3-6, 10, 11, 13, 14, 18-20, 24, 26-29, 31, 35-37, and
39- 44 of U.S. Patent No. 9,499,721 (``the '721 patent''). Id. at
40685. The Commission's notice of investigation named as respondents
DuPont de Nemours, Inc. of Wilmington, Delaware; Rohm and Haas
Electronic Materials CMP, LLC of Newark, Delaware; Rohm and Haas
Electronic Materials CMP Asia Inc. (d/b/a Rohm and Haas Electronic
Materials CMP Asia Inc., Taiwan Branch (U.S.A.)) of Taoyuan City,
Taiwan; Rohm and Haas Electronic Materials Asia-Pacific Co., Ltd. of
Miaoli, Taiwan; Rohm and Haas Electronic Materials K.K. of Tokyo,
Japan; and Rohm and Haas Electronic Materials LLC of Marlborough,
Massachusetts (collectively, ``Respondents'' or ``DuPont''). Id. at
40686. The Office of Unfair Import Investigations (``OUII'') is
participating in this investigation. Id.
On October 1, 2020, the ALJ issued an initial determination
granting CMC's unopposed motion to amend the complaint and notice of
investigation to assert infringement of claims 17 and 46 of the '721
patent. Order No. 7 (Oct. 1, 2020), unreviewed by Notice (Oct. 16,
2020).
On November 10, 2020, the ALJ issued an initial determination
granting
[[Page 53675]]
CMC's unopposed motion to amend the complaint and notice of
investigation to change the name of Complainant from Cabot
Microelectronics Corporation to CMC Materials, Inc. Order No. 8 (Nov.
10, 2020), unreviewed by Notice (Nov. 24, 2020).
On January 26, 2021, the ALJ issued an initial determination
granting CMC's unopposed motion to amend the complaint and notice of
investigation to reflect the conversion of Rohm and Haas Electronic
Materials, Inc. to Rohm and Haas Electronic Materials CMP, LLC. Order
No. 13 (Jan. 26, 2021), unreviewed by Notice (Feb. 11, 2021).
On January 26, 2021, the ALJ issued an initial determination
granting CMC's unopposed motion to terminate the investigation as to
claim 5 of the '721 patent. Order No. 12 (Jan. 26, 2021), unreviewed by
Notice (Feb. 16, 2021).
On July 8, 2021, the ALJ issued the subject final ID finding a
violation of section 337. The ID found that the parties do not contest
personal jurisdiction, and that the Commission has in rem jurisdiction
over the accused products. ID at 11. The ID further found that the
importation requirement under 19 U.S.C. 1337(a)(1)(B) is satisfied. ID
at 11-30. The ID also found that CMC established the existence of a
domestic industry that practices the '721 patent. ID at 144-169, 297-
314. The ID concluded that CMC proved that Respondent's accused
products infringe the asserted claims of the '721 patent and that
Respondents failed to show that the asserted claims are invalid. ID at
87-144. The ID included the ALJ's recommended determination on remedy
and bonding (``RD''). The RD recommended that, should the Commission
find a violation, issuance of a limited exclusion order and cease and
desist orders would be appropriate. ID/RD at 316-331. The RD also
recommended imposing a bond in the amount of one hundred percent of the
entered value for covered products imported during the period of
Presidential review. ID at 331.
On July 15, 2021, OUII filed a motion to extend the time for the
parties to file petitions for review from July 20, 2021 (with responses
due July 28, 2021) to July 29, 2021 (with responses due August 12,
2021). On July 16, 2021, the Chair granted the motion.
On July 29, 2021, Respondents and OUII filed separate petitions for
review of the ID. On August 12, 2021, CMC submitted responses to the
petitions filed by DuPont and OUII, and OUII submitted a response to
DuPont's petition.
On August 30, 2021, the Commission extended the due date for
determining whether to review the final ID from September 8, 2021, to
September 22, 2021.
Having examined the record of this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review the ID's findings on importation, infringement,
and domestic industry. The Commission has determined not to review the
remainder of the ID. The parties are requested to brief their positions
with reference to the applicable law and the evidentiary record
regarding only the following issues:
(1) Please discuss whether, including under the framework
articulated by Chair Kearns in his Additional Views in Certain High-
Density Fiber Optic Equipment and Components Thereof, Inv. No. 337-TA-
1194, the Fuso BS-3 particles should be considered articles that
directly infringe the asserted claims of the '721 patent and therefore
are articles that infringe under section 337. See Certain High-Density
Fiber Optic Equipment and Components Thereof, Inv. No. 337-TA-1194,
Comm'n Op. at 98-104, Additional Views of Chair Kearns Regarding
``Articles that Infringe'' (Aug. 23, 2021).
(2) The ID credits the entirety of investments in certain assets
necessary for manufacturing the DI products, including a portion of the
845 Enterprise Facility and certain equipment at the 845 Enterprise
Facility, even though these assets may also be used to manufacture
other products. ID at 301-303. Please indicate why allocation to the DI
products is not required under the facts of this investigation, and the
percentage of these assets that are used for the DI products as opposed
to other products.
In connection with the final disposition of this investigation, the
Commission may issue: (1) An exclusion order that could result in the
exclusion of the subject articles from entry into the United States,
and/or (2) a cease-and-desist order that could result in the respondent
being required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. Accordingly, the Commission is
interested in receiving written submissions that address the form of
remedy, if any, that should be ordered. If a party seeks exclusion of
an article from entry into the United States for purposes other than
entry for consumption, the party should so indicate and provide
information establishing that activities involving other types of entry
either are adversely affecting it or likely to do so. For background,
see Certain Devices for Connecting Computers via Telephone Lines, Inv.
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (Dec. 1994).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation. In that regard, the parties are
requested to also brief their positions on the following questions:
(1) Is there currently a shortage of semiconductor chips available
in the United States, and if so, how long is this shortage likely to
continue?
(2) How would an exclusion order or cease and desist order impact
the availability of semiconductor chips in the United States?
(3) If the Commission issues an exclusion order directed to
DuPont's infringing CMP products, including the BS-3 particle, are
there other CMP products readily available that can meet domestic
demand? Please identify sources of these alternatives and their
capacity to replace the excluded products.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. See
Presidential Memorandum of July 21, 2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles would be entitled to enter the
United States under bond, in an amount determined by the Commission and
prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: The parties to this investigation are
requested to file written submissions on the issues of remedy, the
public interest, and bonding. Such submissions should address the
recommended determination by the ALJ on remedy and bonding. In their
initial submissions, Complainant is also requested to identify the
remedy sought
[[Page 53676]]
and Complainant and OUII are requested to submit proposed remedial
orders for the Commission's consideration. Complainant is also
requested to state the date that the patent expires and the HTSUS
subheadings under which the accused products are imported. Complainant
is further requested to supply the names of known importers of the
Respondent's products at issue in this investigation.
The parties' written submissions and proposed remedial orders must
be filed no later than the close of business on October 6, 2021. Reply
submissions must be filed no later than the close of business on
October 13, 2021. Opening submissions are limited to 50 pages. Reply
submissions are limited to 30 pages. Such submissions should address
the ALJ's recommended determination on remedy and bonding. Interested
government agencies and any other interested parties are also
encouraged to file written submissions on the issues of remedy, the
public interest, and bonding. Third-party submissions should be filed
no later than the close of business on October 6, 2021. No further
submissions on any of these issues will be permitted unless otherwise
ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1204'') in a prominent place on
the cover page and/or the first page. (See Handbook on Filing
Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>). Persons with questions regarding
filing should contact the Secretary at (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. A redacted
non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission's vote on this determination took place on September
22, 2021.
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
210).
By order of the Commission.
Issued: September 22, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-20984 Filed 9-27-21; 8:45 am]
BILLING CODE 7020-02-P
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