UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`CERTAIN AUTOMOTIVE PARTS
`
`Inv. No. 337-TA-557
`
`MOTION FOR LEAVE TO SUPPLEMENT RESPONDENTS’
`PETITION FOR REVIEW UNDER COMMISSION RULE 210.47
`
`00 --4
`
`On May 1, 2007, Respondents Keystone Automotive Industries, Inc.; U.S. Auto Parts
`
`Network, Inc.; Gordon Auto Body Parts Co., Ltd.; Y.C.C. Parts Manufacturing Co., Ltd.; TYC
`
`Brother Industrial Co., Ltd.; and Depo Auto Parts Ind. Co., Ltd. (“Respondents”) submitted their
`
`Motion For Leave To File A Petition For Review Under Commission Rule 210.47. Respondents
`
`did so immediately after the Supreme Court issued its April 30, 2007 decision in KSR
`
`International Co. v. Teleflex Inc., 550 US. - 2007.
`
`On May 4,2007, the Commission issued a Notice Of Commission Determination To
`
`Waive Reconsideration Rule Deadline And To Extend Target Date, in which the Commission
`
`determined to waive Rule 210.47 and to consider Respondents’ Petition For Reconsideration.
`
`Respondents now respectfully request leave to supplement their Petition For Reconsideration.
`
`The attached supplement includes exhibits from the record that provide a visual comparison
`
`v.:- 3 * < ~ A L $
`submit that the attached supplement will facilitate consideration of the Petitio
`I For Reviy*Lii
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`light of the KSR decision.
`
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`Office of the
`Seirttary
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`
`Washington, D.C.
`
`CERTAIN AUTOMOTIVE PARTS
`
`Inv. No. 337-TA-557
`
`MOTION FOR LEAVE TO SUPPLEMENT RESPONDENTS’
`PETITION FOR REVIEW UNDER COMMISSION RULE 210.47
`
`00 --4
`
`On May 1, 2007, Respondents Keystone Automotive Industries, Inc.; U.S. Auto Parts
`
`Network, Inc.; Gordon Auto Body Parts Co., Ltd.; Y.C.C. Parts Manufacturing Co., Ltd.; TYC
`
`Brother Industrial Co., Ltd.; and Depo Auto Parts Ind. Co., Ltd. (“Respondents”) submitted their
`
`Motion For Leave To File A Petition For Review Under Commission Rule 210.47. Respondents
`
`did so immediately after the Supreme Court issued its April 30, 2007 decision in KSR
`
`International Co. v. Teleflex Inc., 550 US. - 2007.
`
`On May 4,2007, the Commission issued a Notice Of Commission Determination To
`
`Waive Reconsideration Rule Deadline And To Extend Target Date, in which the Commission
`
`determined to waive Rule 210.47 and to consider Respondents’ Petition For Reconsideration.
`
`Respondents now respectfully request leave to supplement their Petition For Reconsideration.
`
`The attached supplement includes exhibits from the record that provide a visual comparison
`
`v.:- 3 * < ~ A L $
`submit that the attached supplement will facilitate consideration of the Petitio
`I For Reviy*Lii
`’ k ,
`
`.p-
`
`:v
`
`light of the KSR decision.
`
`557.0~7
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`Office of the
`Seirttary
`1flt.f Tradt c,,rnm,sSlon
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`
`
`
`Basil J. Lewris
`Robert D. Litowitz
`Smith R. Brittingham IV
`Alan A. Wright
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, L.L.P.
`901 New York Avenue, N.W.
`Washington, DC 20001-4413
`(202) 408-4000
`(202) 408-4400 fax
`
`John R. Alison
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, L.L.P.
`12D, 167 Dun Hua North Road
`Taipei 105, Taiwan, R.O.C.
`0 1 1-886-22-7 12-700 1
`01 1-886-22-712-7080 fax
`
`Attorneys for Respondents
`
`Dated: May 16, 2007
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`CERTAIN AUTOMOTIVE PARTS
`
`Inv. No. 337-TA-557
`
`SUPPLEMENT TO RESPONDENTS’ PETITION
`FOR REVIEW UNDER COMMISSION RULE 210.47
`
`On May 1,2007, Respondents Keystone Automotive Industries, Inc.; U.S. Auto Parts
`
`Network, Inc.; Gordon Auto Body Parts Co., Ltd.; Y.C.C. Parts Manufacturing Co., Ltd.; TYC
`
`Brother Industrial Co., Ltd.; and Depo Auto Parts Ind. Co., Ltd. (“Respondents”) submitted their
`
`Motion For Leave To File A Petition For Review Under Commission Rule 2 10.47. On May 4,
`
`2007, the Commission issued a Notice Of Commission Determination To Waive Reconsideration
`
`Rule Deadline And To Extend Target Date, in which the Commission determined to waive Rule
`
`2 10.47 and to consider Respondents’ Petition For Reconsideration. Complainant Ford Global
`
`Technologies, LLC (“Ford”) and the Office of Unfair Import Investigations (“OUII”) each
`
`oppose reconsideration.
`
`Respondents now respectfully supplement their Petition For Reconsideration with the
`
`following exhibits from the record, which provide a visual comparison between the design
`
`patents at issue and Complainant’s own antecedent designs for the “P221” and “P273” that the
`
`ALJ found had been placed in public use by Complainant, and which Complainant concedes are
`
`the closest prior art:
`
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`
`More than any verbal description, these images show that the patented designs are merely
`
`“advances that would occur in the ordinary course without real innovation . . . .” KSR
`
`International Co. v. Telejlex Inc., 550 US. - 2007. (KSR Opinion at 15). The KSR decision
`
`recognizes what OUII and Complainant do not -- that not every “innovation” merits exclusive
`
`rights under the patent laws. The issue is not, as postured by Complainant, whether one of
`
`ordinary skill can predict “what the next Ford F-150 will look like.” (Complainant Opposition at
`
`12). Rather, to paraphrase the KSR decision, the operative question in this case is whether an
`
`automotive designer of ordinary skill, starting with the closest prior art pictured above, and
`
`wishing to refine those near final designs, would use something more than “ordinary innovation”
`
`to end up with the patented designs. Id. at 24. As illustrated above, the patented designs in this
`
`case, to the extent they represent any innovation at all, reflect merely the “inferences and creative
`
`steps that a person of ordinary skill in the art would employ.” (KSR Opinion at 14).
`
`Under Complainant’s approach to obviousness, any change to a design that was in public
`
`use is a non-obvious, patentable change. KSR rejects such efforts to nullify Section 103 of the
`
`patent law. While Complainant wishes to ignore KSR, the Commission should not.
`
`Respondents’ respectfully submit that proper application of the Supreme Court holding and
`
`teachings in KSR compels a finding that each of Complainant’s patents not previously deemed
`
`invalid for anticipation should be held invalid for obviousness.
`
`7
`
`
`
`Dated: May 16,2007
`
`Basil J. Lewris
`Robert D. Litowitz
`Smith R. Brittingham IV
`Alan A. Wright
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, L.L.P.
`901 New York Avenue, N.W.
`Washington, DC 2000 1-44 1 3
`(202) 408-4000
`(202) 408-4400 f a
`
`John R. Alison
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, L.L.P.
`12D, 167 Dun Hua North Road
`Taipei 105, Taiwan, R.O.C.
`01 1-886-22-712-7001
`01 1-886-22-712-7080 fax
`
`Attorneys for Respondents
`
`8
`
`
`
`Certain Automotive Parts
`
`Inv. No. 337-TA-557
`
`CERTIFICATE OF SERVICE
`
`I, Todd Bagchi, hereby certify that on May 16,2007, a copy of the forgoing document
`was filed and served as indicated:
`
`The Honorable Marilyn R. Abbott, Secretary
`U.S. International Trade Commission
`500 E Street, S.W., Room 112
`Washington, D.C. 20436
`(Original and 13 Copies)
`
`The Honorable Paul J. Luckern
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W., Room 317
`Washington, D.C. 20436
`(2 Copies)
`
`Juan Cockburn, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Room 401
`Washington, D.C. 20436
`
`Counsel for Ford Global Technologies:
`
`Ernie L. Brooks
`Frank A. Angileri
`Sangeeta G. Shah
`Brooks Kushman P.C.
`1000 Town Center
`Twenty-Second Floor
`Southfield, Michigan 48075
`
`V. James Adduci I1
`Adduci, Mastriani & Schaumberg LLC
`1200 17fi Street N.W.
`Washington, D.C. 20036
`
`[7 Via First Class Mail
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`0 Via Facsimile
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`
`0 Via First Class Mail
`Via Hand Delivery
`[7 Via Overnight Courier
`Via Facsimile
`
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, L.L.P.
`901 New York Avenue, N.W.
`Washington, D.C. 20001
`(202) 408-4000
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