[Federal Register Volume 85, Number 111 (Tuesday, June 9, 2020)]
[Notices]
[Pages 35330-35331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12411]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1151]
Certain Photovoltaic Cells and Products Containing Same; Notice
of Commission Decision to Review in Part and, on Review, to Affirm With
Modification an Initial Determination Granting Respondents' Motions for
Summary Determination of Non-Infringement; 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 determined to review in part and, on review, to affirm
with modification an initial determination (``ID'') (Order No. 40) of
the presiding administrative law judge (``ALJ'') granting respondents'
motions for summary determination of non-infringement. The
investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2310. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.usitc.gov.
[[Page 35331]]
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 April 9, 2019, based on a complaint filed on behalf of Hanwha Q
CELLS USA, Inc. of Dalton, Georgia and HQC-AMC \1\ of Seoul, Republic
of Korea (collectively, ``Hanwha''). 84 FR 14134-35 (April 9, 2019).
The complaint alleges violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337''), based upon the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain photovoltaic
cells and products containing same by reason of infringement of certain
claims of U.S. Patent No. 9,893,215. The complaint further alleges the
existence of a domestic industry. The Commission's notice of
investigation named the following respondents: JinkoSolar Holding Co.,
Ltd., c/o Conyers Trust Company (Cayman) Limited of Grand Cayman KY1-
111, Cayman Islands; JinkoSolar (U.S.) Inc. of San Francisco,
California; Jinko Solar (U.S.) Industries Inc. of San Francisco,
California; Jinko Solar Co., Ltd. of Jiangxi, China; Zhejiang Jinko
Solar Co., Ltd. of Haining City, China; Jinko Solar Technology Sdn.
Bhd. of Persekutuan, Malaysia (collectively, ``Jinko''); LONGi Solar
Technology Co., Ltd. of Shaanxi, China; LONGi Green Energy Technology
Co., Ltd. of Shaanxi, China; LONGi (H.K.) Trading Ltd. of Wanchai, Hong
Kong; LONGi (Kuching) Sdn. Bhd. of Sarawak, Malaysia; Taizhou LONGi
Solar Technology Ltd. of Jiangsu, China; Zhejiang LONGi Solar
Technology Ltd. of Zhejiang, China; Hefei LONGi Solar Technology Ltd.
of Anhui, China; LONGi Solar Technology (U.S.) Inc. of San Ramon,
California (collectively, ``LONGi''); and REC Solar Holdings AS of
Oslo, Norway; REC Solar Pte. Ltd. of Tuas, Singapore; and REC Americas,
LLC of San Mateo, California (collectively, ``REC'') (collectively,
``Respondents''). The Office of Unfair Import Investigations (``OUII'')
is participating in the investigation.
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\1\ Complainant HQC-AMC was subsequently replaced by Hanwha
Solutions Corporation. Order No. 38 (Jan. 30, 2020), unreviewed by
Comm'n Notice (Mar. 2, 2020); see also 85 FR 13182-83 (Mar. 6,
2020).
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On August 19, September 13, and September 18, 2019, LONGi, Jinko,
and REC, respectively, filed a motion for summary determination on
infringement. On September 26, 2019, the ALJ issued a Markman Order
(Order No. 24), construing certain claim terms in dispute. On October
10, 2019, the ALJ issued Order No. 26, which struck Hanwha's late-filed
contentions concerning infringement under the doctrine of equivalents
(DOE).
On April 10, 2020, the ALJ issued the subject ID (Order No. 40),
granting Respondents' motions for summary determination of non-
infringement. The subject ID finds no literal infringement by any of
the accused products. Although the ALJ struck Hanwha's late-filed DOE
contentions in Order No. 26, the ID also addresses the merits of the
DOE contentions and finds no infringement by equivalents due to
prosecution history estoppel.
On April 22, 2020, Hanwha filed a petition for review seeking
review of the finding of no literal infringement. Hanwha does not seek
review of the ALJ's decision to strike its DOE contentions. On May 5,
2020, Respondents and OUII each filed a response in opposition to
Hanwha's petition.
Having reviewed the record including Order No. 24, the subject ID,
the parties' briefing before the ALJ, and Hanwha's petition and
responses thereto, the Commission has determined to review in part the
subject ID (and underlying Markman Order). On review, the Commission
has determined to affirm with modification the ID's grant of summary
determination. Specifically, the Commission clarifies that the findings
made on pages 24-26 of the ID relate to statements made by the patentee
during prosecution. The ID notes that those findings support the
determination that prosecution history estoppel precludes the
application of the DOE with respect to the claim terms at issue. The
Commission clarifies that these findings also support Order No. 24's
claim construction of these terms, including a determination that
prosecution disclaimer applies in construing these terms. As one
example, the finding on page 25 of the ID that ``the patentee `made
numerous and unambiguous' representations that the '215 patent claims
solar cells hav[ing] a two-layer passivation stack, and no more'' lends
support to a finding of prosecution disclaimer and Order No. 24's
construction of the claim terms at issue. See, e.g., Omega Eng'g, Inc.
v. Raytek Corp., 334 F.3d 1314, 1323-24 (Fed. Cir. 2003); Trading
Technologies Intern., Inc. v. Open E Cry, LLC, 728 F.3d 1309, 1322
(Fed. Cir. 2013) (``a single action during prosecution can engender
both a prosecution disclaimer and prosecution history estoppel.'')
(emphasis in original).
The investigation is terminated with a finding of no violation of
section 337.
The Commission vote for this determination took place on June 3,
2020.
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: June 3, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-12411 Filed 6-8-20; 8:45 am]
BILLING CODE 7020-02-P