UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`BEFORE THE HONORABLE PAUL J. LUCKERN
`
`ADMINISTRATIVE LAW JUDGE
`
`Inv. No. 337-TA-492
`
`
`
`
`CERTAIN PLASTIC GROCERY AND
`RETAIL BAGS
`
`
`In the Matter of
`
`COMPLAINANT SUPERBAG’S POST-HEARING SUBMISSION
`
`PUBLIC VERSION
`
`Steven R. Borgman
`Barry E. Engel
`Stephen S. Hodgson
`Gerald D. Malpass, Jr.
`VINSON & ELKINS L.L.P.
`
`2300 First City Tower
`1001 Fannin Street
`
`Houston, Texas 77002-6760
`Phone: 713-758-2002
`
`Facsimile: 713-615-5758
`
`ATTORNEYS FOR COMPLAINANT,
`SUPERBAG CORP.
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`BEFORE THE HONORABLE PAUL J. LUCKERN
`
`ADMINISTRATIVE LAW JUDGE
`
`
`
` Inv. No. 337-TA-492
`
`In the Matter of
`
`CERTAIN PLASTIC GROCERY AND
`RETAIL BAGS
`
`1.
`2
`
`3.
`4.
`
`5.
`
`TABLE OF CONTENTS
`
`Introduction: ...................................................................................................................... .. 1
`A Domestic Industry Exists with Respect to the ‘235 Patent: .......................................... .. 3
`a.
`Superbag Satisfies the Economic Prong: .............................................................. .. 3
`b.
`Superbag Satisfies the Technical Prong: ............................................................... .. 6
`Importation of the Accused Products by Respondents: .................................................... .. 7
`Infiingement of the ‘235 Patent: ....................................................................................... .. 7
`a.
`Overview of the ‘235 Patent: ................................................................................ .. 8
`b.
`Claim Construction Issues: ................................................................................. .. 11
`i.
`Applicable Legal Principles: ................................................................... .. 11
`ii.
`Claim Terms Not Disputed: .................................................................... .. 13
`iii.
`The Disputed Claim Language: .............................................................. .. 14
`iv.
`Construction of the “Weakened Portion Defining a Severance Line:”..... 15
`A.
`The “Plain Meaning” Definition: ................................................ .. 15
`B.
`The Specification’s Description: ................................................. .. 16
`C.
`The Extrinsic Evidence: .............................................................. .. 18
`D.
`Respondents’ Proposed Constructions Are Improper: ................ .. 21
`“Means for Releaseably Bonding:” ......................................................... .. 25
`v.
`Superbag Practices the ‘235 Patent: .................................................................... .. 27
`Respondents’ Bags Infiinge the ‘235 Patent: ...................................................... .. 28
`i.
`Universal ................................................................................................. .. 29
`ii.
`Prime Source ........................................................................................... .. 29
`iii.
`Hmong ..................................................................................................... .. 29
`iv.
`Thai Plastic .............................................................................................. .. 30
`v.
`Spectrum .................................................................................................. .. 30
`vi.
`Pan Pacific ............................................................................................... .. 31
`vii.
`Nantong ................................................................................................... .. 3 1
`viii.
`Bee Lian .................................................................................................. .. 31
`ix.
`Polson ...................................................................................................... .. 32
`A General Exclusion Order Is Appropriate: .................................................................... .. 32
`a.
`There Has Been Widespread Infringement of the ‘235 Patent: .......................... .. 33
`b.
`The Relevant Business Conditions Show That a General Exclusion Order is
`Needed: ................................................................................................................ .. 34
`i.
`There Is an Established and Growing Demand for the Bags Covered by the
`‘235 Patent: ............................................................................................. .. 34
`
`c.
`d.
`
`

`
`ii.
`
`Foreign Producers Can Easily Use the Existing Distribution Chain for
`Infringing Bags: ....................................................................................... .. 35
`There Are Very Low Barriers to Entry for Foreign Producers: .............. .. 35
`iii.
`It Is Very Difficult to Identify Foreign Producers of Infringing Bags: 36
`iv.
`Foreign Producers Could Easily Circumvent Limited Exclusion Orders: 37
`v.
`A General Exclusion Order Will Not Adversely Affect the Public Interest:37
`vi.
`A Bond of 80% Is Appropriate: ...................................................................................... .. 37
`Conclusion: ...................................................................................................................... .. 38
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`BEFORE THE HONORABLE PAUL J. LUCKERN
`ADMINISTRATIVE LAW JUDGE
`
`Inv. No. 337-TA-492
`
`
`
`In the Matter of
`
`CERTAIN PLASTIC GROCERY AND
`RETAIL BAGS
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Bristol-Myers Squibb Co. v. Teva Pharmaceuticals USA, Inc., 2003 U.S. Dist. LEXIS 19105
`(S.D.N.Y. Oct. 27, 2003) ........................................................................................................ .. 24
`
`Certain Airless Paint Spray Pumps, 1981 ITC LEXIS 167, ITC Inv. No. 337-TA-90, USITC
`Pub. 1199, Commission Opinion (Nov. 1981) .................................................................. .. 32, 33
`
`Certain Condensers, Parts Thereofand Products Containing Same, including Air Conditioners
`for Automobiles, 1997 ITC LEXIS 262, ITC Inv. No. 337-TA-334, Comm’n Opinion (Sept.
`10, 1997) ................................................................................................................................. .. 33
`
`Certain Cube Puzzles, Inv. No. 337-TA—112, USITC Pub. No. 1334, 219 U.S.P.Q. 322 (Int’l
`Trade Comm’n 1983) ................................................................................................................ .. 5
`
`Certain Excimer Laser Systemsfor Vision Correction Surgery and Components Thereofand
`Methods for Performing Such Surgery Inv. No. 33 7-TA-419, I 999 WI 321914, Order No. 9,
`Initial Determination (May 7, I999) ......................................................................................... .. 5
`
`Certain Ink Jet Print Cartridges and Components Thereof, 2002 WL 31464980, ITC Inv. No.
`337-TA—446 ............................................................................................................................... .. 3
`
`Certain Methods ofMaking Carbonated Candy Prods., 1991 ITC LEXIS 925, ITC Inv. No. 337-
`TA-292 ...................................................................................................................................... .. 8
`
`Certain Plastic Molding Machines with Control Systems Having Programmable Operator
`Interfaces Incorporating General Purpose Computers and Components ThereofII Inv. No.
`33 7-TA-462, 2001 WI. 1356210, Order No. 9, Initial Determination Granting Motion for
`Summary Determination (Nov. 1, 2001) ............................................................................... .. 4, 5
`
`Certain Rare-Earth Magnets and Magnetic Materials and Articles Containing the Same, 1999
`ITC LEXIS 342, ITC Inv. No. 337-TA-413 (Sept. 8, 1999) ....................................... .. 33, 35, 36
`
`Certain Static Random Access Memories, ITC Inv. No. 337-TA-341, Order No. 5 (Dec. 30,
`1992). ........................................................................................................................................ .. 6
`
`iii
`
`

`
`Certain Tool Handles, Tool Holders, Tool Sets, and Components Therefor, 2003 ITC LEXIS
`380, 3 & 4, USITC Inv. No. 337-TA-483, Order No. 14 (June 20, 2003) .............................. .. 13
`
`Certain Two-Handle Centerset Faucets and Escutcheons, and Components Thereofi 2000 ITC
`LEXIS 123, ITC Inv. No 337-TA-422 (March 17, 2000) ............................................. .. 8, 34, 36
`
`Custom Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d 955 (Fed. Cir. 1986) ........ .. 19
`
`IMS Tech. Inc. v. Haas Automation Inc., 206 F.3d 1422 (Fed. Cir. 2000) ................................. .. 25
`
`Insituform Techs., Inc. v. Cat Contracting, Inc., 161 F.3d 688 (Fed. Cir. 1998) ........................ ..24
`
`Intellectual Property Dev., Inc. v. UA-Columbia Cablevision of Westchester, Inc., 336 F .3d 1308
`(Fed. Cir. 2003) ....................................................................................................................... .. 12
`
`Johns Hopkins University v. Cell Pro, Inc., 152 F.3d 1342 (Fed. Cir. 1998) ............................. ..23
`
`Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985 (Fed. Cir. 1999) ............... .. 11, 12
`
`McCarty v. Lehigh Valley R.R., 160 U.S. 110 (1895) ................................................................. .. 11
`
`Tanabe Seiyaku Co., Ltd. v. United States Int ’l Trade Comm ’n, 109 F.3d 726 (Fed. Cir. 1997) . 24
`
`Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1205 (Fed. Cir. 2002) ........................ .. 13
`
`Wind Turbines, Inv. No. 337-TA—376, Comm’n Opinion at 21 (1996) ........................................ .. 4
`
`Statutes
`
`19U.S.C.§1337 ................................................................................................................... ..1,3,7
`
`19 U.S.C. § 1337(d)(2) .......................................................................................................... ..33, 37
`
`19 U.S.C. § 1337(j) ..................................................................................................................... ..37
`
`19 U.S.C. §§ 1337(a)(3)(A), (B), & (C) .................................................................................... .. 3, 4
`
`35 U.S.C.§112, 11 6 .................................................................................................................... ..25
`
`Other Authorities
`Webster ’s 11 New Riverside University Dictionary, The Riverside Publishing Co., Houghton
`Mifflin Co., Boston (1988) ...................................................................................................... .. 16
`
`Rules
`
`210.16 ................................................................................................................................ ..3,31,32
`
`iv
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`BEFORE THE HONORABLE PAUL J. LUCKERN
`ADMINISTRATIVE LAW JUDGE
`
`Inv. No. 337-TA-492
`
`
`
`In the Matter of
`
`CERTAIN PLASTIC GROCERY AND
`RETAIL BAGS
`
`COMPLAINANT SUPERBAG’S POST-HEARING SUBMISSION
`
`Complainant Superbag Corp.
`
`(“Superbag”) respectfully submits the following Post-
`
`Hearing Submission in this Investigation:
`
`1.
`
`Introduction:
`
`Superbag filed its Complaint asserting violations of 19 U.S.C.
`
`§ 1337 with the
`
`Commission on April 2, 2003. Superbag asserted that the Respondents had sold for import,
`
`imported, or sold afier import into the United States plastic T-shirt bags which infiinge U.S.
`Patent No. 5,188,235 (the “‘235 patent”). The Notice of Investigation was issued on May 2,
`
`2003, and was published in the Federal Register on May 8, 2003. 68 Fed. Reg. 24755. The
`
`Complaint named the following respondents: Hmong Industries, Inc. (“Hmong”), Thai Plastic
`
`Bags Industries Co., Ltd. (“Thai Plastic”), Spectrum Plastics, Inc. (“Spectrum”) and Pan Pacific
`
`Plastics Mfg., Inc. (“Pan Pacific”).
`
`On August 8, 2003, Superbag filed a motion seeking leave to amend to add additional
`
`respondents.
`
`In Order No. 7, Superbag’s motion to amend was granted. The additional
`
`respondents included Advance Polybag,
`
`Inc.
`
`(“Advance”), Universal Polybag Co., Ltd.
`
`(“Universal”), Prime Source International LLC (“Prime Source”), Nantong Huasheng Plastic
`
`Products Co. (“Nantong”), Bee Lian Plastic Marketing PTE Ltd. (“Bee Lian”), and Polson
`
`Products Limited (“Polson”).
`
`

`
`In Order No. 20, Superbag’s motion for a summary determination was granted in part as
`
`to importation issues.
`
`Specifically, an Initial Determination was issued as to Respondents
`
`Hmong, Thai Plastic, Spectrum, Pan Pacific, and Universal as to importation of the plastic bags
`
`accused of infringing the ‘235 patent; i.e., that each had made such bags for import into the
`
`United States and/or had imported such bags into the United States.
`
`Superbag and Spectrum entered into a consent order stipulation and Superbag moved for
`
`tennination of the Investigation and entry of a consent order as to Spectrum. That motion was
`
`granted in Order No. 23 on January 8, 2004.
`
`Superbag and respondents Advance and Universal entered into a settlement agreement
`
`and cross-license as of January 12, 2004.
`
`Superbag, Advance and Universal moved for
`
`termination of the Investigation as to Advance and Universal on January 16, 2004, based on the
`
`Termination for Settlement signed by these three parties. On January 30, 2004, the ITC Staff
`
`filed a response supporting the parties’ motion.
`
`On January 22, 2004, Superbag moved for termination of the Investigation as to Prime
`
`Source and for entry of a proposed consent order based on the Consent Order Stipulation signed
`
`by Superbag and Prime Source. On February 2, 2004, the ITC Staff filed a response supporting
`
`Superbag’s motion as to Prime Source.
`
`Superbag and Pan Pacific moved for termination of the Investigation as to Pan Pacific
`
`based on a Termination for Settlement Agreement dated January 21, 2004. On February 2, 2004,
`
`the ITC Staff filed a response supporting the parties’ motion as to Pan Pacific.
`
`Respondents Hmong and Thai Plastic did not file prehearing statements or participate in
`
`the hearing on January 20-21, 2004.
`
`

`
`Respondents Nantong and Bee Lian did not respond to the complaint, file prehearing
`
`statements, or participate in the hearing on January 20-21, 2004. Respondents Nantong and Bee
`
`Lian were found in default pursuant to Commission Rule 210.16 in Orders Nos. 26 and 27 in this
`
`Investigation. Pursuant to Commission rules 210.16(b)(3) and 2l0.16(c)(1), Nantong and Bee
`
`Lian have waived the right
`
`to contest Superbag’s allegations and the facts alleged in the
`
`Complaint will be presumed to be true with respect to Nantong and Bee Lian.
`
`During the hearing on January 20 and 21, 2004, Superbag submitted its evidence of
`
`violations of Section 337,
`
`including evidence of the existence of a domestic industry,
`
`infringement of the ‘235 patent, facts relevant to the need for a general exclusion order, and the
`
`appropriate bonding amount during the period of Presidential review. All testimony and exhibits
`
`offered by Complainant were admitted in evidence without objection. None of the Respondents
`
`submitted any evidence.
`
`2.
`
`A Domestic Industry Exists with Respect to the ‘235 Patent:
`
`Superbag’s evidence satisfies the technical and economic prongs of the domestic industry
`
`requirement. The two prongs of the domestic industry requirement test whether the complainant
`
`is exploiting the patent at issue at a level sufficient to constitute a “domestic industry.” Thus, the
`
`“technical” prong requires the complainant to show that it is practicing the patent.
`
`19 U.S.C.
`
`§§ l337(a)(2) & (3); see also Certain Ink Jet Print Cartridges and Components Thereof [Print
`
`Cartridges], 2002 WL 31464980, ITC Inv. No. 337-TA-446, Comm’n Opinion at 3 n.3 (2002).
`
`The “economic” prong requires that
`
`the complainant’s production operations meet certain
`
`“substantiality” requirements. See 19 U.S.C. §§ 1337(a)(3)(A), (B), & (C).
`
`a.
`
`Superbag Satisfies the Economic Prong:
`
`To satisfy the economic prong of the domestic industry requirement, Superbag may
`
`show:
`
`(1) significant investment in plant and equipment; (2) significant employment of labor
`
`

`
`and capital; or (3) substantial investment in its exploitation, including engineering, research and
`
`development, or licensing. See 19 U.S.C. §§ 1337 (a)(3)(A), (B), & (C). Meeting any one of the
`
`three requirements satisfies the economic prong of the domestic industry requirement. Wind
`
`Turbines, Inv. No. 337-TA-376, Comm’n Opinion at 21 (1996).
`
`Mr. Isaac Bazbaz testified that Superbag employs over 250 people at its facilities in
`
`Houston, Texas. (Bazbaz, Tr. 168).
`
`[
`
`]
`
`Mr. Bazbaz also explained that Superbag made both “tabbed” and “tabless” bags; only
`
`the tabless bags are covered by the ‘235 patent.
`
`(Bazbaz, Tr. 168-169). Superbag uses most of
`
`the same equipment to make both kinds of bags.
`
`(Bazbaz, Tr. 169). Because about [
`
`] of
`
`Superbag’s production is of the tabless bags covered by the ‘235 patent,
`
`the proportion of
`
`Superbag’s employees, investments in equipment, book value of equipment, and spending on
`
`research and development as to bags covered by the ‘235 patent is approximately [
`
`] of
`
`Superbag’s total employees, investment, book value, and spending. (Bazbaz, Tr. 169).
`
`In Certain Plastic Molding Machines with Control Systems Having Programmable
`
`Operator Interfaces Incorporating General Purpose Computers and Components ThereofII, the
`
`ALJ found equipment investments of $29.5 million, with a net book value of $8 million, to be
`
`significant.
`
`Inv. No. 337-TA-462, 2001 WL 1356210, Order No. 9, Initial Determination
`
`Granting Motion for Summary Determination (Nov. 1, 2001) (not reviewed by the Comm’n).
`
`The evidence shows that Superbag has greater investments in equipment and machinery than that
`
`found sufficient in Plastic Molding Machines.
`
`(Bazbaz, Tr. 173-175; CX-87). Similarly, the
`
`book value of Superbag’s equipment and machinery is greater than that in Plastic Molding
`
`Machines.
`
`Id. Even if reduced to reflect the proportion of tabless bags covered by the ‘235
`
`

`
`patent to all of Superbag’s production of plastic bags, Superbag’s investment and book value are
`
`still greater than the amounts considered sufficient in Plastic Molding Machines.
`
`In Certain Excimer Laser Systems for Vision Correction Surgery and Components
`
`Thereof and Methods for Performing Such Surgery, a 17,000 square foot facility worth
`
`$4,318,000 was found to be a “significant investment.” Inv. No. 337-TA-419, 1999 WL 321914,
`
`Order No. 9, Initial Determination (May 7, 1999) (not reviewed by the Comm’n) (June 7, 1999);
`
`see also Certain Cube Puzzles, Inv. No. 337-TA-112, USITC Pub. No. 1334, 219 U.S.P.Q. 322,
`
`335 (Int’l Trade Comm’n 1983) (finding $250,000 spent on the production of molds and
`
`improvements in design and materials to be a significant investment). As noted above, Superbag
`
`has spent far more on its equipment and facilities, even if reduced to reflect the proportion of
`
`Superbag’s tabless bags to overall production. (Bazbaz, Tr. 173-175; CX-87).
`
`In Certain Cube Puzzles, employment of “up to 200 people” was deemed “significant.”
`
`Certain Cube Puzzles, Inv. No. 337-TA-112, USITC Pub. No. 1334, 219 U.S.P.Q. at 334.
`
`Superbag employs more people than the number found sufficient in Certain Cube Puzzles.
`
`(Bazbaz, Tr. 168-69). Hence, Superbag satisfies the economic prong of the domestic industry
`
`requirement.
`
`Superbag licensed the ‘235 patent to Sonoco Products Company (“Sonoco”).
`
`(Bazbaz,
`
`Tr. 190-191; CX-3, p 5.3; CX-3, Confidential Exhibit C2). Sonoco makes and sells plastic T-
`
`shirt bags covered by the claims of the ‘235 patent.
`
`(Benoit, Tr. 247-248 & 311-312; CX-78, at
`
`64-69). Sonoco has about 800 employees and recently sold its plastic bag division for $123
`
`million. (CX-80, at 17). Sonoco has four plants in the United States at which it manufactures T-
`
`shirt bags.
`
`(Bazbaz, Tr. 214-15). A substantial majority of its T-shirt bag production is of
`
`

`
`tabless T-shirt bags in accordance with the claims of the ‘235 patent. (CX-80, at 17; Bazbaz, Tr.
`
`178-79, 190-91, 215).
`
`Superbag may satisfy the domestic industry requirement by showing that its licensees
`
`practice the ‘235 patent. Certain Static Random Access Memories, ITC Inv. No. 337-TA-341,
`
`Order No. 5 (Dec. 30, 1992). As noted above, Superbag also practices the ‘235 patent by making
`
`and selling bags and bag packs covered by the ‘235 patent. The practice of the ‘235 patent by
`
`Sonoco — a licensee and an even larger company than Superbag — further shows that there is a
`
`substantial domestic industry practicing the ‘235 patent.
`
`b.
`
`Superbag Satisfies the Technical Prong:
`
`For purposes of satisfying the technical prong of the domestic industry requirement, the
`
`test for claim coverage is the same as the test for claim coverage used in patent infringement
`
`determinations. See Print Cartridges, Inv. No. 337-TA-446, 2002 WL 31464980, Comm’n
`
`Opinion at 6. First, the claims of the patent are construed; then, the complainant’s article is
`
`compared against the claims to determine whether it falls within the scope of the claims. See Id.
`
`at 6-9. Superbag need only show that it practices at least one claim of the ‘235 patent to satisfy
`
`the technical prong. Print Cartridges, Inv. No. 337-TA-446, Comm’n Opinion at 3 n.3.
`
`During the hearing, Mr. Gordon Benoit testified as an expert witness.
`
`(Benoit, Tr. 243).
`
`Among other things, Mr. Benoit explained that the bags and bag packs made by Superbag are
`
`covered by claims 1-8 and 15-19 of the ‘235 patent. (Benoit, Tr. 247-48 & Tr. 267-84; CPX—2A;
`
`CPX-2; CX-78, at 19-24; CX-164). This evidence demonstrates that Superbag satisfies the
`
`technical prong of the domestic industry requirement. (Claim construction, the scope of the ‘235
`
`patent, and infringement issues are addressed in more detail below.)
`
`

`
`3.
`
`Importation of the Accused Products by Respondents:
`
`In Order No. 20, the Administrative Law Judge granted in part Superbag’s motion for
`
`summary determination as to importation and infringement. The Administrative Law Judge
`
`issued an Initial Determination as to certain Respondents with respect to their importation of the
`
`accused products. As noted above, Superbag entered into a Settlement Agreement and Cross-
`
`License Agreement with Advance.
`
`Pursuant
`
`to that agreement, Superbag, Advance, and
`
`Universal moved for termination of this Investigation as to Advance and Universal. Superbag
`
`therefore believes that the issue of importation as to Advance is moot. As discussed below,
`
`however, the issue of infringement by Universal prior to the settlement remains significant with
`
`respect to the general exclusion order requested by Superbag.
`
`Superbag also entered into a Consent Order Stipulation with Prime Source.
`
`In that
`
`Stipulation, Prime Source admits to the jurisdiction of the Commission. Prime Source earlier
`
`admitted that it acts as an importer’s agent with respect to the accused products. (CX-77, at 5-6).
`
`Because Section 337 reaches the actions of agents of importers, Prime Source’s actions are
`
`covered by Section 337. See 19 U.S.C. § 1337(a)(4). [
`
`The issue of infringement by Prime Source remains important with respect to the general
`
`exclusion order requested by Superbag.
`
`Polson has not appeared in this investigation. Polson Products has apparently ceased
`
`operations, as the papers served by Complainant in this investigation on Polson have been
`
`l
`
`returned to Complainant.
`
`[
`
`]
`
`4.
`
`Infringement of the ‘235 Patent:
`
`To determine infringement, the claims are first construed to determine their scope. Next,
`
`the claims as construed are compared to the accused products. If the accused product falls within
`
`

`
`the scope of any claim, literal infringement exists. Certain Methods of Making Carbonated
`
`Candy Prods., 1991 ITC LEXIS 925, at *10, ITC Inv. No. 337-TA-292, Comm’n Opinion
`
`(March 8, 1990).
`
`As detailed below, the accused products of each of the Respondents literally infringe the
`
`‘235 patent. Although Superbag granted Universal a license under the ‘235 patent pursuant to
`
`the Settlement Agreement and Cross-License Agreement, Universal’s importation of infringing
`
`bags prior to the license remains significant. Such earlier infringement by Universal (as well as
`
`by Respondents Spectrum, Prime Source, and Pan Pacific, each of whom has entered into a
`
`consent order stipulation or an agreement to terminate) demonstrates a widespread pattern of
`
`infringement of the ‘235 patent by foreign producers, importers, and distributors. Such evidence
`
`demonstrates that a general exclusion order is appropriate. See Certain Two-Handle Centerset
`
`Faucets and Escutcheons, and Components Thereofi 2000 ITC LEXIS 123, *98-99, ITC Inv. No
`
`337-TA-422 (March 17, 2000) (Final Initial and Recommended Determinations) [hereafier
`
`“Centerset Faucets”].
`
`In Centerset Faucets, the Administrative Law Judge noted that it was
`
`appropriate to consider evidence regarding respondents who were terminated from the
`
`investigation on the basis of consent orders in determining the appropriate remedy.
`
`21.
`
`Overview of the ‘235 Patent:
`
`The ‘235 patent contains nineteen claims. Only claims 1-8 and 15-19 are at issue in this
`
`Investigation. Claims 1-5 and 15-18 are directed to the bags, while claims 6-8 and 19 are
`
`directed to bag packs. Of these, claims 1, 6, l5, and 19 are the independent claims. The relevant
`
`independent claims read as follows:
`
`In a bag construction of the type comprising front and rear bag walls, a
`1.
`closed bottom, and a top portion, said top portion having a pair of laterally spaced
`handles, said handles comprising integral extensions of said front and rear bag
`walls, said front and rear bag walls, between said handles, defining an open bag
`mouth, each said handle extending above the bag mouth from a lower handle
`
`

`
`portion defining the lateral extent of said bag mouth to an upper handle portion
`defining a hand grip,
`
`the improvement comprising front and rear central mounting tabs formed
`integrally with said front and rear bag walls and extending upwardly from the
`lower portion of said open bag mouth, a central mounting aperture associated with
`each of said front and rear mounting tabs and adapted for cooperation with a
`support hook of a rack for mounting said bag and a weakened portion defining a
`severance line in each of said front and rear mounting tabs extending from said
`mounting aperture to the top of said mounting tabs,
`
`whereby when said bag is mounted on said rack with said support hook of said
`rack engaging said mounting aperture, said mounting tabs will sever along said
`severance line as said front and rear bag walls are moved forwardly of said
`mounting hook, so that said bag may be removed from said bag rack without
`leaving any portion of said mounting tabs on said hook.
`
`***
`
`A bag pack mountable on a support rack of the type having a pair of
`6.
`laterally spaced elongated support rods and a central, upwardly facing, support
`hook disposed between said support rods, said bag pack comprising:
`
`multiple stacked handle bags, each handle bag comprising a pair of laterally
`spaced upwardly projecting handles receivable on said spaced elongated support
`rods and a central mounting tab disposed between said spaced upwardly
`projecting handles for cooperation with said mounting hook of said rack, said
`multiple stacked bags being positioned with the corresponding handles of the pair
`of handles and the corresponding central mounting tabs of each bag in stacked
`aligned overlying relation forming a stack of central mounting tabs and a pair of
`handle stacks, means releaseably bonding the individual mounting tabs of said
`stock of mounting tabs to each other, means releaseably bonding the individual
`handles of said handle stacks to each other, aligned mounting apertures through
`the handles of each handle stack for simultaneous reception of each handle stack
`over a corresponding one of said support arms receivable through the aligned
`apertures, aligned central mounting apertures associate with said aligned
`mounting tabs for simultaneous reception of each mounting tab in said stack of
`mounting tabs over said hook of said rack and a weakened portion comprising a
`severance line extending generally vertically of each of said aligned mounting
`tabs, from said central mounting apertures to the top of said aligned mounting
`tabs, whereby when said bag pack is mounted on said rack with said mounting
`hook through said aligned central mounting apertures, said individual bags may
`be separated from said bag pack and removed from said mounting rack by
`severing said mounting tabs along said generally vertically extending severance
`lines in said mounting tabs and without leaving any portion of said mounting tabs
`on said hook.
`
`

`
`***
`
`In a bag construction of the type comprising front and rear bag walls, a
`15.
`closed bottom, and a top portion, said top portion having a pair of laterally spaced
`handles, said handles comprising integral extensions of said front and rear bag
`walls, said front and rear bag walls, between said handles defining an open bag
`mouth, each said handle extending above the bag mouth from a lower handle
`portion defining the lateral extent of said bag mouth to an upper handle portion
`defining a hand grip,
`
`the improvement comprising front and rear mounting apertures formed in said
`front and rear bag walls and adapted for cooperation with a support hook of a rack
`for mounting said bag and a weakened portion defining a severance line in at least
`one of said front and rear bag walls extending from said mounting aperture to the
`top portion of said bag wall defining said bag mouth, whereby when said bag is
`mounted on said rack with said support hook of said rack engaging said mounting
`apertures, said bag wall having said severance line will sever along said severance
`line as said bag wall is moved forwardly of said mounting hook, so that said bag
`may be removed from said bag rack without leaving any portion of said wall
`having said severance line on said hook.
`
`***
`
`A bag pack mountable on a support rack of the type having a pair of
`19.
`laterally spaced elongated support rods and a central, upwardly facing, support
`hook disposed between said support rods, said bag pack comprising:
`
`multiple stacked handle bags, each handle bag comprising front and rear bag
`walls, a pair of laterally spaced handles projecting upwardly from said bag walls
`and receivable on said elongated spaced support rods, said multiple stacked bags
`being positioned with the corresponding handles of the pair of handles and the
`corresponding walls of said front and rear bag walls stacked in aligned overlying
`relation, forming a stack of bag walls and a pair of handle stacks, means
`releaseably bonding the individual bag walls of said stack of bag walls to each
`other, means releaseably bonding the individual handles of said handle stacks to
`each other, aligned mounting apertures through the handles of each handle stack
`for simultaneous reception of each handle stack over a corresponding one of said
`support arms receivable through the aligned apertures, aligned central mounting
`apertures formed in said fi'ont and rear bag walls for simultaneous reception of
`each bag wall in said stack of bag walls over said hook of said rack and a
`weakened portion defining a severance line formed in at least one of said front
`and rear bag walls of each bag and extending from said mounting aperture in said
`bag wall to the top portion of said bag wall, whereby when said bag pack is
`mounted on said rack with said mounting hook through said aligned central
`mounting apertures, said bag wall having said severance line will sever along said
`severance line as said bag wall is moved forwardly of said mounting hook, so that
`said bag may be disengaged from said bag pack and removed from said support
`
`10
`
`

`
`rack without leaving any portion of said wall having said severance line on said
`hook.
`
`CX-1, ‘235 patent, cols. 5-8.
`
`None of the issued claims was the subject of an amendment during prosecution (except to
`
`add issued claims 15-19). CX-5.
`
`In a Response to Office Action submitted on July 13, 1992,
`
`Superbag’s attorney described the then pending claims as follows:
`
`All such claims are characterized by a novel feature incorporated into the plastic
`bags covered by the claims in which the bags have front and rear central mounting
`apertures associated with the front and rear bag walls and adapted for cooperation
`with a support hook of a rack for mounting the bags and in which a weakened
`portion defining a severance line in each of the front and rear bag walls extends
`from the mounting aperture to the top of the bag walls, so that when the bag i