Notice2022-01234
Certain Variable Speed Wind Turbine Generators and Components Thereof; Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation
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Published
January 24, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 of the Tariff Act of 1930, as amended, by Siemens Gamesa Renewable Energy Inc.; Siemens Gamesa Renewable Energy A/S; and Gamesa Electric, S.A.U., and has determined to issue a limited exclusion order and cease and desist orders. The investigation is terminated.
Full Text
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<title>Federal Register, Volume 87 Issue 15 (Monday, January 24, 2022)</title>
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[Federal Register Volume 87, Number 15 (Monday, January 24, 2022)]
[Notices]
[Pages 3586-3587]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01234]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1218]
Certain Variable Speed Wind Turbine Generators and Components
Thereof; Notice of the Commission's Final Determination Finding a
Violation of Section 337; Issuance of a Limited Exclusion Order and
Cease and Desist Orders; Termination of the Investigation
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 found a violation of section 337 of the Tariff Act of
1930, as amended, by Siemens Gamesa Renewable Energy Inc.; Siemens
Gamesa Renewable Energy A/S; and Gamesa Electric, S.A.U., and has
determined to issue a limited exclusion order and cease and desist
orders. The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Robert Needham, 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 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#7336373a20403b161f033306001a07105d141c05"><span class="__cf_email__" data-cfemail="dd9899948eee95b8b1ad9da8aeb4a9bef3bab2ab">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server (<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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on September 8, 2020, based on a complaint filed on behalf of General
Electric Company of Boston, Massachusetts (``GE''). 85 FR 55492-93
(Sept. 8, 2020). The complaint, as supplemented, alleged violations of
section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, based upon the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain variable
speed wind turbine generators and components thereof by reason of
infringement of one or more of claims 1, 3, 6, 7, 12, 15-16, 21-24, 29,
30, and 33-38 of U.S. Patent No. 6,921,985 (``the '985 patent'') and
claims 1 and 2 of the U.S. Patent No. 7,629,705 (``the '705 patent'').
Id. at 55493; Order No. 10 (Dec. 2, 2020), unreviewed by Comm'n Notice
(Dec. 22, 2020). Id. The Commission's notice of investigation named as
respondents Siemens Gamesa Renewable Energy Inc. of Orlando, Florida;
Siemens Gamesa Renewable Energy A/S of Brande, Denmark; and Gamesa
Electric, S.A.U. of Zamudio, Spain (collectively, ``SGRE''). Id. at
26493; 85 FR 55493. The Office of Unfair Import Investigations is not a
party to the investigation. Id.
The Commission subsequently terminated the investigation with
respect to claims 3, 7, 15, 16, 21-24, 36, and 38 of the '985 patent
and claim 2 of the '705 patent based on GE's partial withdrawal of the
complaint. Order No. 20 (Mar. 30, 2021), unreviewed by Comm'n Notice
(Apr. 15, 2021) (terminating the investigation with respect to claims
3, 7, 36, and 38 of the '985 patent and claim 2 of the '705 patent);
Order No. 24 (Apr. 26, 2021), unreviewed by Comm'n Notice (May 17,
2021) (terminating the investigation with respect to claims 15, 16, and
21-24 of the '985 patent). Accordingly, at the time of the Final ID,
the remaining asserted claims were claims 1, 6, 12, 29, 30, 33-35, and
37 of the '985 patent and claim 1 of the '705 patent.
The Commission also issued a summary determination that GE
satisfied the economic prong of the domestic industry requirement with
respect to both asserted patents. Order No. 23 (Apr. 26, 2021),
unreviewed by Comm'n Notice (May 26, 2021).
On September 10, 2021, the ALJ issued a final initial determination
(``Final ID'') finding a violation of section 337 with respect to
claims 1, 6, 12, 29, 30, 33-35, and 37 of the '985 patent and finding
no violation with respect to claim 1 of the '705 patent. Final ID at
147. The Final ID found that GE showed that SGRE induced infringement
of claims 1, 6, 12, 29, 30, 33-35, and 37 of the '985 patent and claim
1 of the '705 patent, and that GE showed that it satisfied the
technical prong of the domestic industry requirement with respect to
both patents. The Final ID also found that SGRE showed that claim 1 of
the '705 patent is directed to ineligible subject matter but failed to
show that any asserted claim of the '985 patent is invalid or patent
ineligible.
On September 22 and 24, 2021, GE and SGRE, respectively, filed
petitions for review of the Final ID. GE and SGRE opposed each other's
petitions on September 30, 2021, and October 4, 2021, respectively.
On November 12, 2021, the Commission determined to review the
[[Page 3587]]
Final ID in part. Specifically, the Commission determined to review the
following issues: (1) The Final ID's finding that the accused products
satisfy the limitation ``a second mode of operation comprising the low
voltage event'' of claims 1, 6, and 12 of the '985 patent; (2) the
Final ID's finding that the accused turbines having a doubly-fed
induction generator (``DFIG'') satisfy the limitation ``turbine
controller causes the blade pitch control system to vary the pitch of
the one or more blades'' of claims 1, 6, and 12 of the '985 patent; (3)
the Final ID's finding that certain full-converter turbines with later
versions of software and DFIG Products infringe claims 29, 30, 33-35,
and 37 of the '985 patent; and (4) the Final ID's finding that the
accused products satisfy the limitation ``during the entire duration of
and subsequent to a zero voltage fault that lasts for an undetermined
period of time'' of claim 1 of the '705 patent. The Commission also
determined to take no position on whether GE showed that the accused
products satisfy the limitation ``during the entire duration of and
subsequent to a zero voltage fault that lasts for an undetermined
period of time,'' and therefore affirmed the Final ID's finding of no
violation as to claim 1 of the '705 patent based on 35 U.S.C. 101. The
Commission did not review any other findings presented in the final ID.
The Commission sought briefing from the parties on six issues and
requested briefing from the parties, interested government agencies,
and interested persons on remedy, bonding, and the public interest. On
December 7, 2021, GE and SGRE filed their initial submissions in
response to the Commission's request for briefing. On December 14,
2021, GE and SGRE filed their reply submissions in response to the
Commission's request for briefing. The Commission also received
submissions from U.S. Representative Paul Tonko; U.S. Representative
William Timmons; Senator Patrick Leahy; Senator Tim Scott; Senators
John Hoeven, Kevin Cramer, and Kelly Armstong; Senators Charles
Grassley and Joni Ernst; Governor Kim Reynolds of Iowa; Governor Laura
Kelly of Kansas; RWE Renewables Americas, LLC; Enel Green Power North
America, Inc.; Avangrid Renewables, LLC; Allete Clean Energy; Clearway
Energy Group, LLC; Algonquin Power & Utilities Corp.; and MidAmerican
Energy Company.
Having examined the record of this investigation, including the
Final ID, the petitions for review, responses, and other submissions
from the parties and the public, the Commission has determined that GE
failed to show any accused SGRE products satisfies the limitation ``a
second mode of operation comprising the low voltage event'' found in
claims 1, 6, and 12 of the '985 patent. The Commission has further
determined that GE failed to show that the accused SGRE DFIG products
satisfy the limitation ``turbine controller causes the blade pitch
control system to vary the pitch of the one or more blades'' of claims
1, 6, and 12 of the '985 patent. Finally, the Commission finds that GE
showed that the accused full-converter wind turbine generators with
earlier versions of software infringe claims 29, 30, 33-35, and 37 of
the '985 patent, but that GE did not show that the accused DFIG wind
turbines generators or the accused full-converter wind turbine
generators with later versions of software infringed those claims. The
Commission therefore reverses the Final ID's finding that SGRE
infringes claims 1, 6, and 12 of the '985 patent, but finds that GE
showed infringement of claims 29, 30, 33-35, and 37 of the '985 patent
by the accused full-converter wind turbine generators with earlier
versions of software. Accordingly, the Commission finds that GE has
shown a violation of section 337 by SGRE with respect to claims 29, 30,
33-35, and 37 of the '985 patent.
The Commission's determinations are explained more fully in the
accompanying Opinion. All other findings in the ID under review that
are consistent with the Commission's determinations are affirmed.
The Commission has determined that the appropriate form of relief
in this investigation is a limited exclusion order with respect to SGRE
prohibiting the importation of certain variable speed wind turbine
generators and components thereof that are covered by one or more of
claims 29, 30, 33-35, and 37 of the '985 patent, and cease and desist
orders that prohibits SGRE from further importing, selling, and
distributing those products in the United States. The Commission has
further determined that the public interest factors enumerated in
subsection 337(d)(1) and (f)(1) (19 U.S.C. 1337(d)(1) and (f)(1))
warrant an exemption in both orders for the service and repair of
subject articles that were sold to U.S. consumers as of the date of the
orders, but do not otherwise preclude the issuance of the limited
exclusion order or the cease and desist orders. Finally, the Commission
has determined that the bond for importation during the period of
Presidential review shall be in the amount of zero percent (0%) (i.e.,
no bond) of the entered value of such articles.
The Commission's notice, order, and opinion were delivered to the
President and to the United States Trade Representative on the day of
their issuance. The Commission has also notified the Secretary of the
Treasury and Customs and Border Protection of the order. The
investigation is hereby terminated.
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: January 18, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-01234 Filed 1-21-22; 8:45 am]
BILLING CODE 7020-02-P
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