PUBLIC VERSION
`PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`Washington, D.C.
`
`In the Matter of
`In the Matter of
`CERTAIN AUTOMOTIVE PARTS
`CERTAIN AUTOMOTIVE PARTS
`
`Inv. No. 337-TA-651
`Inv. No. 337-TA-651
`
`ORDER NO. 21:
`ORDER NO. 21:
`
`INITIAL DETERMINATION FINDING THAT COMPLAINA~T
`INITIAL DETERMINATION FINDING THAT COMPLAINANT
`HAS SATISFIED THE ECONOMIC PRONG OF THE DOMBTIC
`HAS SATISFIED THE ECONOMIC PRONG OF THE DOMESTIC
`INDUSTRY REQUIREMNT
`INDUSTRY REQUIREMNT
`(March 6,2009)
`(March 6, 2009)
`On January 7,2009, Complainant Ford Global Technologies, L.L.C. (“Ford”), moved for
`On January 7,2009, Complainant Ford Global Technologies, L.L.C. ("Ford"), moved for
`summary determination that it had satisfied that economic prong of the domestic industry
`summary determination that it had satisfied that economic prong of the domestic industry
`requirement. (Motion Docket No. 65 1-034).l
`requirement. (Motion Docket No. 651-034).1
`
`On January 29,2009, the Commission Investigative Staff filed a response in support of
`On January 29,2009, the Commission Investigative Staff filed a response in support of
`
`Ford’s motion.
`Ford's motion.
`On January 29,2009, Respondents Keystone Automotive Industries, Inc., LKQ
`On January 29,2009, Respondents Keystone Automotive Industries, Inc., LKQ
`
`Corporation, Jui Li Enterprise Co., Y.C.C. Parts Manufacturing Co., Ltd., TYC Brother Industrial
`Corporation, Jui Li Enterprise Co., Y.C.C. Parts Manufacturing Co., Ltd., TYC Brother Industrial
`Co., Ltd., Taiwan Kai Yih Industrial Co., Ltd., and T.Y.G. Products, L.P. (collectively,
`Co., Ltd., Taiwan Kai Yih Industrial Co., Ltd., and T.Y.G. Products, L.P. (collectively,
`“Respondents”) filed a response stating that they did not oppose Ford’s motion.
`"Respondents") filed a response stating that they did not oppose Ford's motion.
`Pursuant to Commission Rule 2 10.18, summary determination “. . .shall be rendered if
`Pursuant to Commission Rule 210.18, summary determination " ... shall be rendered if
`
`pleadings and any depositions, answers to interrogatories, and admission on file, together with the
`pleadings and any depositions, answers to interrogatories, and admission on file, together with the
`
`affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
`affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
`
`1 On January 28,2009, Ford, Respondents, and Staff stipulated and agreed to extend the deadline for their responses
`1 On January 28, 2009, Ford, Respondents, and Staff stipulated and agreed to extend the deadline for their responses
`to January 29,2009. This stipulation is hereby GRANTED.
`to January 29, 2009. This stipulation is hereby GRANTED.
`- 1 -
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`
`

`
`PUBLIC VERSION
`PUBLIC VERSION
`party is entitled to summary determination as a matter of law.” 19 C.F.R. 9 21 O.l8(b); see also
`party is entitled to summary determination as a matter oflaw." 19 C.F.R. § 210.18(b); see also
`DeMartina Sports, Inc. v. Worth, Inc., 239 F.3d 13 14, 1322 (Fed. Cir. 2001); Wenger Mfg., Inc. v.
`DeMartina Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed. Cir. 2001); Wenger Mfg., Inc. v.
`Coating Machinery Systems, Inc., 239 F.3d 1225, 123 1 (Fed. Cir. 2001). The evidence “must be
`Coating Machinery Systems, Inc., 239 F.3d 1225, 1231 (Fed. Cir. 2001). The evidence "must be
`reviewed in a light most favourable to the party opposing the motion.. .with doubt resolved in favor
`reviewed in a light most favourable to the party opposing the motion ... with doubt resolved in favor
`of the nonmovant.” Crown Operations Int’l, Ltd. v. Solutia, Inc., 289 F.3d 1367, 1375 (Fed. Cir.
`of the nonmovant." Crown Operations Int'l, Ltd v. Solutia, Inc., 289 F.3d 1367, 1375 (Fed. Cir.
`2002); see also Xerox Corp. v. 3Com Corp., 267 F.3d. 1361,1364 (Fed. Cir. 2001) (“When ruling
`2002); see also Xerox Corp. v. 3Com Corp., 267 F.3d. 1361, 1364 (Fed. Cir. 2001) ("When ruling
`on a motion for summary judgment, all of the nonmovant’s evidence is to be credited, and all
`on a motion for summary judgment, all of the nonmovant's evidence is to be credited, and all
`justifiable inferences are to be drawn in the nonmovant’s favor.”). “Issues of fact are genuine only
`justifiable inferences are to be drawn in the nonmovant's favor."). "Issues of fact are genuine only
`if the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving
`if the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving
`party.” Id. at 1375 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986)). The trier
`party." Id at 1375 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986». The trier
`of fact should “assure itself that there is no reasonable version of the facts, on the summary
`of fact should "assure itself that there is no reasonable version of the facts, on the summary
`judgment record, whereby the nonmovant could prevail, recognizing that the purpose of summary
`judgment record, whereby the nonmovant could prevail, recognizing that the purpose of summary
`
`judgment is not to deprive a litigant of a fair hearing, but to avoid unnecessary trial.” EMI Group
`judgment is not to deprive a litigant of a fair hearing, but to avoid unnecessary trial." EMI Group
`North America, Inc. v. Intel Corp., 157 F.3d 887, 891 (Fed. Cir. 1998). “Where an issue as to a
`North America, Inc. v. Intel Corp., 157 F.3d 887,891 (Fed. Cir. 1998). "Where an issue as to a
`material fact cannot be resolved without observation of the demeanor of witnesses in order to
`material fact cannot be resolved without observation of the demeanor of witnesses in order to
`evaluate their credibility, summary judgment is not appropriate.” Smart Technology, Ltd., v. Resco
`evaluate their credibility, summary judgment is not appropriate." Smart Technology, Ltd, v. Resco
`Metal andPlastics Corp., 264 F.3d 1344, 1357 (Fed. Cir. 2001 (Dyk, C.J., concurring). “In other
`Metal and Plastics Corp., 264 F.3d 1344, 1357 (Fed. Cir. 2001 (Dyk, C.J., concurring). "In other
`words, ‘[slummary judgment is authorized when it is quite clear what the truth is,’ [citations
`words, '[s]ummary judgment is authorized when it is quite clear what the truth is,' [citations
`
`omitted], and the law requires judgment in favour of the movant based upon facts not in genuine
`omitted], and the law requires judgment in favour of the movant based upon facts not in genuine
`dispute.” Paragon Podiatry Laboratory, Inc. v. KLMLaboratories, Inc., 984 F.2d 1 182,1185 (Fed.
`dispute." Paragon Podiatry Laboratory, Inc. v. KLM Laboratories, Inc., 984 F.2d 1182, 1185 (Fed.
`
`Cir. 1983).
`Cir. 1983).
`
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`
`

`
`PUBLIC VERSION
`PUBLIC VERSION
`In patent proceedings under Section 337, a complainant must establish that an industry
`In patent proceedings under Section 337, a complainant must establish that an industry
`
`“relating to the articles protected by the patent.. .exists or is in the process of being established” in
`"relating to the articles protected by the patent. .. exists or is in the process of being established" in
`the United States. 19 U.S.C. 5 1337(a)(2). Under Commission precedent, the domestic industry
`the United States. 19 U.S.C. § 1337(a)(2). Under Commission precedent, the domestic industry
`requirement of Section 337 consists of a “technical prong” and an “economic prong.” The
`requirement of Section 337 consists of a ''technical prong" and an "economic prong." The
`
`technical prong is satisfied when it is determined that the complainant’s activities related to an
`technical prong is satisfied when it is determined that the complainant's activities related to an
`article “protected by the patent.” The economic prong is satisfied when it is determined that the
`article "protected by the patent." The economic prong is satisfied when it is determined that the
`economic activities set forth in subsections (A), (B), andor (C) of subsection 337(a)(3) have taken
`economic activities set forth in subsections (A), (B), and/or (C) of subsection 337(a)(3) have taken
`place or are taking place with respect to the protected articles. Certain Data Storage Systems and
`place or are taking place with respect to the protected articles. Certain Data Storage Systems and
`Components Thereof, Inv. No. 337-TA-47 1, Initial Determination Granting EMC’s Motion No.
`Components Thereof, Inv. No. 337-TA-471, Initial Determination Granting EMC's Motion No.
`
`471 -8 Relating to the Domestic Industry Requirement’s Economic Prong (unreviewed) at 3 (Public
`471-8 Relating to the Domestic Industry Requirement's Economic Prong (unreviewed) at 3 (Public
`Version, October 25,2002). With respect to the economic prong, 19 U.S.C. 0 1337(a)(2) and (3)
`Version, October 25, 2002). With respect to the economic prong, 19 U.S.C. § 1337(a)(2) and (3)
`
`provide, in full:
`provide, in full:
`(2) Subparagraphs (B), (C), (D), and (E) of paragraph (1) apply only
`(2) Subparagraphs (B), (C), (D), and (E) of paragraph (1) apply only
`if an industry in the United States, relating to the articles protected
`if an industry in the United States, relating to the articles protected
`by the patent, copyright, trademark, mask work, or design concerned,
`by the patent, copyright, trademark, mask work, or design concerned,
`exists or is in the process of be established.
`exists or is in the process of be established.
`(3) For the purposes of paragraph (2)’ an industry in the United
`(3) For the purposes of paragraph (2), an industry in the United
`States shall be considered to exist if there is in the United States,
`States shall be considered to exist if there is in the United States,
`with respect to the articles protected by the patent, copyright,
`with respect to the articles protected by the patent, copyright,
`trademark, mask work, or other design concerned-
`trademark, mask work, or other design concerned-
`
`(A) significant investment in plant and equipment;
`(A) significant investment in plant and equipment;
`(B) significant employment of labor or capital; or
`(B) significant employment of labor or capital; or
`(C) substantial investment in its exploration, including
`(C) substantial investment in its exploration, including
`engineering, research and development, or licensing.
`engineering, research and development, or licensing.
`
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`
`

`
`PUBLIC VERSION
`PUBLIC VERSION
`Given that these criteria are in the disjunctive, satisfaction of any one of them will be
`Given that these criteria are in the disjunctive, satisfaction of anyone of them will be
`sufficient to meet the domestic industry requirement. Certain Integrated Circuit Chipsets and
`sufficient to meet the domestic industry requirement. Certain Integrated Circuit Chipsets and
`Products Containing the Same, Inv. No. 337-TA-428, Order No. 10 at 3, Initial Determination
`Products Containing the Same, Inv. No. 337-TA-428, Order No. 10 at 3, Initial Determination
`(unreviewed) (May 4,2000) (citing Certain Variable Speed Wind Turbines and Components
`(unreviewed) (May 4,2000) (citing Certain Variable Speed Wind Turbines and Components
`ThereoJ Inv. No. 337-TA-376, Commission Op. at 15, USITC Pub. 3003 (Nov. 1996)).
`Thereof, Inv. No. 337-TA-376, Commission Op. at 15, USITC Pub. 3003 (Nov. 1996».
`Design patents are directed to the appearance of an article of manufacture and only protect
`Design patents are directed to the appearance of an article of manufacture and only protect
`the “ornamental design” for an article of manufacture. See 35 U.S.C. 5 171. A design that is
`the "ornamental design" for an article of manufacture. See 35 U.S.C. § 171. A design that is
`dictated by function alone is not valid under $ 17 1 because it is not “ornamental” for the purposes
`dictated by function alone is not valid under § 171 because it is not "ornamental" for the purposes
`of the statute. See Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373,1378 (Fed. Cir. 2002) (“the design
`of the statute. See Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1378 (Fed. Cir. 2002) ("the design
`of a useful article is deemed functional where the appearance of the claimed design is ‘dictated by’
`ofa useful article is deemed functional where the appearance of the claimed design is 'dictated by'
`the use or purpose of the article.”(citations omitted)).
`the use or purpose ofthe article."(citations omitted».
`The Commission has long held “that the domestic industry inquiry under Section 337 is not
`The Commission has long held "that the domestic industry inquiry under Section 3 3 7 is not
`limited to the activities of the patent owner, but also involved the activities of any licensees.” Wind
`limited to the activities of the patent owner, but also involved the activities of any licensees." Wind
`Turbines, Inv. No. 337-TA-376, REMAND, Commission Op. at 20, USITC Pub. 3072 (Nov. 1997)
`Turbines, Inv. No. 337-TA-376, REMAND, Commission Op. at 20, USITC Pub. 3072 (Nov. 1997)
`(internal citations omitted); see also Certain Static Random Access Memories, Inv. No.
`(internal citations omitted); see also Certain Static Random Access Memories, Inv. No.
`337-TA-341, Order No. 5.; Certain Dynamic Random Access Memories, Components Thereof and
`337 -TA-341, Order No.5.; Certain Dynamic Random Access Memories, Components Thereof and
`Products Containing the Same, Inv. No. 337-TA-242 at 62 (Sept. 1987); and Certain Microsphere
`Products Containing the Same, Inv. No. 337-TA-242 at 62 (Sept. 1987); and Certain Microsphere
`Adhesives, Processes for Making Same, and Products Containing Same, Inv. No. 337-TA-366
`Adhesives, Processesfor Making Same, and Products Containing Same, Inv. No. 337-TA-366
`(Sept. 1995). “Indeed, it has been the long-standing Commission practice to examine the activities
`(Sept. 1995). "Indeed, it has been the long-standing Commission practice to examine the activities
`of licensees in making domestic industry determinations.” Id. at 20, n. 14. The Commission has
`oflicensees in making domestic industry determinations." Id. at 20, n.14. The Commission has
`relied solely on the activities of the licensees in establishing the economic prong of the domestic
`relied solely on the activities of the licensees in establishing the economic prong of the domestic
`
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`

`
`0
`
`•
`
`[
`Thousands of American workers are employed to manufacture the parts in the
`Thousands of American workers are employed to manufacture the parts in the
`•
`United States. (Id. at Exh. 6, Porcari Decl. 7 4);
`United States. (Id. at Exh. 6, Porcari Decl. ~ 4);
`E
`•
`[
`Neither Respondents nor Staff disputes any of these material facts. Accordingly, the
`Neither Respondents nor Staff disputes any ofthese material facts. Accordingly, the
`
`PUBLIC VERSION
`PUBLIC VERSION
`industry requirement. ,Id. (citing Certain Diltiazen Hydrochloride and Diltiazem Preparations, Inv.
`industry requirement.ld. (citing Certain Diltiazen Hydrochloride and Diltiazem Preparations, Inv.
`
`No. 337-TA-349, Initial Determination (unreviewed portion) at 133-141)).
`No. 337-TA-349, Initial Determination (unreviewed portion) at 133-141)).
`
`Ford relies on at the following activities to establish the economic prong of its Section 337
`Ford relies on at the following activities to establish the economic prong of its Section 337
`
`complaint:
`complaint:
`
`•
`0
`
`0
`
`•
`
`A team of Ford designers and engineers worked on designing the parts and ensuring
`A team ofFord designers and engineers worked on designing the parts and ensuring
`•
`0
`their manufacturing feasibility in the United States. (Ford Memo. at Exh. 6, Porcari Decl. 7 6);
`their manufacturing feasibility in the United States. (Ford Memo. at Exh. 6, Porcari Decl. ~ 6);
`The Mustang vehicles are assembled at a plant in Flat Rock, Michigan. (Id. at 7 8);
`The Mustang vehicles are assembled at a plant in Flat Rock, Michigan. (Id. at ~ 8);
`1
`[
`]
`[
`1
`]
`
`0
`
`0
`
`1
`]
`
`Administrative Law Judge finds that the activities of Ford satisfy the economic prong of the
`Administrative Law Judge finds that the activities ofFord satisfy the economic prong of the
`
`domestic industry requirement.
`domestic industry requirement.
`The motion for summary determination that Ford has satisfied the economic prong of the
`The motion for summary determination that Ford has satisfied the economic prong of the
`
`domestic industry requirement is hereby GRANTED.
`domestic industry requirement is hereby GRANTED.
`Pursuant to 19 C.F.R. 5 2 10.42(h), this initial determination shall become the
`Pursuant to 19 C.F.R. § 21O.42(h), this initial determination shall become the
`
`determination of the Commission unless a party files a petition for review of the initial
`determination of the Commission unless a party files a petition for review of the initial
`determination pursuant to 19 C.F.R. 5 210.43(a), or the Commission, pursuant to 19 C.F.R. 5
`determination pursuant to 19 C.F.R. § 21 0.43 (a), or the Commission, pursuant to 19 C.F.R. §
`
`21 0.44, orders on its own motion a review of the initial determination or certain issues contained
`210.44, orders on its own motion a review of the initial determination or certain issues contained
`
`- 5 -
`- 5 -
`
`

`
`herein.
`herein.
`
`PUBLIC VERSION
`PUBLIC VERSION
`
`Within seven days of the date of this document, each party shall submit to the Office of the
`Within seven days of the date of this document, each party shall submit to the Office of the
`
`Administrative Law Judges a statement as to whether or not it seeks to have any portion of this
`Administrative Law Judges a statement as to whether or not it seeks to have any portion of this
`document deleted from the public version. The parties’ submissions may be made by facsimile
`document deleted from the public version. The parties' submissions may be made by facsimile
`
`and/or hard copy by the aforementioned date.
`and/or hard copy by the aforementioned date.
`Any party seeking to have any portion of this document deleted from the public version
`Any party seeking to have any portion of this document deleted from the public version
`thereof must submit to this office a copy of this document with red brackets indicating any portion
`thereof must submit to this office a copy of this document with red brackets indicating any portion
`asserted to contain confidential business information. The parties’ submissions concerning the
`asserted to contain confidential business information. The parties' submissions concerning the
`public version of this document need not be filed with the Commission Secretary.
`public version of this document need not be filed with the Commission Secretary.
`
`SO ORDERED.
`SO ORDERED.
`
`- 6 -
`-6-
`
`cdcj*<;
`~ .. ....... ,.-.... ?p ..... C:')
`- ___.
`c- - -‘
`"L.--(w.. _
`"_ .. > •• ___ w-. ___ ~.~_
`--.-e ..-
`c .......... ·-
`Theodore R. Essex
`Theodore R. Essex
`Administrative Law Judge
`Administrative Law Judge
`
`1
`
`II
`
`

`
`IN THE MATTER OF CERTAIN AUTOMOTIVE PARTS
`IN THE MATTER OF CERTAIN AUTOMOTIVE PARTS
`
`Inv. No. 337-TA-651
`Inv. No. 337-TA-651
`
`PUBLIC CERTIFICATE OF SERVICE
`PUBLIC CERTIFICATE OF SERVICE
`
`I, Marilyn R. Abbott, hereby certify that the attached ORDER 21 was served by hand upon, the
`I, Marilyn R. Abbott, hereby certify that the attached ORDER 21 was served by hand upon, the
`Commission Investigative Attorney, Mareesa A. Frederick, Esq., and the following parties as
`Commission Investigative Attorney, Mareesa A. Frederick, Esq., and the following parties as
`indicated on
`2009.
`March 6 ,
`2009.
`indicated on
`March 6,
`
`U.S. International Trade Commission
`u.s. International Trade Commission
`500 E Street, SW, Room 112A
`500 E Street, SW, Room 112A
`Washington, D.C. 20436
`Washington, D.C. 20436
`
`COMPLAINANT FORD GLOBAL TECHNOLOGIES, LLC.:
`COMPLAINANT FORD GLOBAL TECHNOLOGIES, LLC.:
`V. James Adduci 11, Esq.
`V. James Adduci II, Esq.
`ADDUCI, MASTRIANI & SCHAUMBERG, LLP
`ADDUCI, MASTRIANI & SCHAUMBERG, LLP
`1200 Seventeenth Street, NW
`1200 Seventeenth Street, NW
`Washington, DC 20036
`Washington, DC 20036
`
`) Via Hand Delivery
`(
`) Via Hand Delivery
`(
`w i
`a
` Overnight Mail
`~ia Overnight Mail
`( ) Via First Class Mail
`(
`) Via First Class Mail
`)Other:
`(
`) Other: ___ _
`(
`
`RESPONDENTS KEYSTONE AUTOMOTIVE INDUSTRIES, INC., LKO
`RESPONDENTS KEYSTONE AUTOMOTIVE INDUSTRIES, INC., LKO
`CORPORATION, US AUTOPARTS NETWORKS, 1NC.JUI LI ENTERPRISE CO.,
`CORPORATION, US AUTOPARTS NETWORKS, INC.JUI LI ENTERPRISE CO.,
`YCC PARTS MANUFACTURING CO., LTD, TYC BROTHER INDUSTRIAL CO., LTD
`YCC PARTS MANUFACTURING CO., LTD, TYC BROTHER INDUSTRIAL CO., LTD
`TAIWAN KAI YIH INDUSTRIAL CO., LTD, TYG PRODUCTS, LP:
`TAIWAN KAI YIH INDUSTRIAL CO., LTD, TYG PRODUCTS, LP:
`
`Scott M. Daniels, Esq.
`Scott M. Daniels, Esq.
`WESTERMAN, HATTORI,
`WESTERMAN, HATTORI,
`DANIELS & ADRIAN, LLP
`DANIELS & ADRIAN, LLP
`1250 Connecticut Avenue, NW, Suite 700
`1250 Connecticut Avenue, NW, Suite 700
`Washington, DC 20036
`Washington, DC 20036
`
`) Via Hand Delivery
`(
`) Via Hand Delivery
`(
`( d i a Overnight Mail
`(---rYia Overnight Mail
`( ) Via First Class Mail
`(
`) Via First Class Mail
`)Other:
`(
`) Other: ___ _
`(
`
`

`
`IN THE MATTER OF CERTAIN AUTOMOTIVE PARTS
`IN THE MATTER OF CERTAIN AUTOMOTIVE PARTS
`
`Inv. No. 337-TA-651
`Inv. No. 337-TA-651
`
`CERTIFICATE OF SERVICE - PAGE 2
`
`CERTIFICATE OF SERVICE - PAGE 2
`
`PUBLIC MAILING LIST
`PUBLIC MAILING LIST
`
`Heather Hall
`LEXIS - NEXIS
`Heather Hall
`LEXIS - NEXIS
`9443 Springboro Pike
`9443 Springboro Pike
`Miamisburg, OH 45342
`Miamisburg, OH 45342
`Kenneth Clair
`Kenneth Clair
`THOMSON WEST
`THOMSON WEST
`1 100 Thirteen Street; NW, Suite 200
`1100 Thirteen Street; NW, Suite 200
`Washington, D.C. 20005
`Washington, D.C. 20005
`
`) Via Hand Delivery
`(
`) Via Hand Delivery
`(
`( - 4 V i a Overnight Mail
`( .----rVia Overnight Mail
`) Via First Class Mail
`(
`(
`) Via First Class Mail
`)Other:
`(
`)Other: ___ _
`(
`
`( ) Via Hand Delivery
`(
`) Via Hand Delivery
`M V i a Overnight Mail
`~ia Overnight Mail
`( ) Via First Class Mail
`(
`) Via First Class Mail
`)Other:
`(
`) Other: ___ _
`(