U N I T ED S T A T ES I N T E R N A T I O N AL T R A DE C O M M I S S I ON
`Washington, D . C.
`
`In the Matter of
`
`C E R T A IN L I T H I UM M E T AL O X I DE
`C A T H O DE M A T E R I A L S, L I T H I U M-
`I ON B A T T E R I ES F OR P O W ER T O OL
`P R O D U C TS C O N T A I N I NG S A M E, A ND
`P O W ER T O OL P R O D U C TS W I TH
`L I T H I U M - I ON B A T T E R I ES
`C O N T A I N I NG S A ME
`
`Investigation No. 337-TA-951
`
`L I M I T ED E X C L U S I ON O R D ER
`
`The United States International Trade Commission ("Commission") has determined that
`
`there is a violation of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), in
`
`the unlawful importation, sale for importation, or sale within the United States after importation
`
`by Respondents Umicore N . V. and Umicore USA Inc. (collectively "Respondents") of certain
`
`lithium metal oxide cathode materials covered by one or more of claims 1-4, 7,13, and 14 of
`
`U.S. Patent No. 6,677,082 ("the '082 patent"), or claims 1-4, 8, 9, and 17 of U.S. Patent No.
`
`6,680,143 ("the'143 patent").
`
`Having reviewed the record in this investigation, including the written submissions of the
`
`parties, the Commission has made its determination on the issues of remedy, the public interest,
`
`and bonding. The Commission has determined that the appropriate form of relief is a limited
`
`exclusion order prohibiting entry of infringing lithium metal oxide cathode materials that are
`
`manufactured abroad by or on behalf of, or imported by or on behalf of Respondents or any of
`
`their affiliated companies, parents, subsidiaries, agents, or other related business entities, or their
`
`successors or assigns.
`
`
`Washington, D . C.
`
`In the Matter of
`
`C E R T A IN L I T H I UM M E T AL O X I DE
`C A T H O DE M A T E R I A L S, L I T H I U M-
`I ON B A T T E R I ES F OR P O W ER T O OL
`P R O D U C TS C O N T A I N I NG S A M E, A ND
`P O W ER T O OL P R O D U C TS W I TH
`L I T H I U M - I ON B A T T E R I ES
`C O N T A I N I NG S A ME
`
`Investigation No. 337-TA-951
`
`L I M I T ED E X C L U S I ON O R D ER
`
`The United States International Trade Commission ("Commission") has determined that
`
`there is a violation of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), in
`
`the unlawful importation, sale for importation, or sale within the United States after importation
`
`by Respondents Umicore N . V. and Umicore USA Inc. (collectively "Respondents") of certain
`
`lithium metal oxide cathode materials covered by one or more of claims 1-4, 7,13, and 14 of
`
`U.S. Patent No. 6,677,082 ("the '082 patent"), or claims 1-4, 8, 9, and 17 of U.S. Patent No.
`
`6,680,143 ("the'143 patent").
`
`Having reviewed the record in this investigation, including the written submissions of the
`
`parties, the Commission has made its determination on the issues of remedy, the public interest,
`
`and bonding. The Commission has determined that the appropriate form of relief is a limited
`
`exclusion order prohibiting entry of infringing lithium metal oxide cathode materials that are
`
`manufactured abroad by or on behalf of, or imported by or on behalf of Respondents or any of
`
`their affiliated companies, parents, subsidiaries, agents, or other related business entities, or their
`
`successors or assigns.
`
`
`
`The Commission has further determined that the public interest factors enumerated in 19
`
`U.S.C § 1337(d) do not preclude issuance of the limited exclusion order, and that the bond
`
`during the Presidential review period shall be in the amount of three percent (3%) of the entered
`
`value of covered products.
`
`Accordingly, the Commission hereby O R D E RS that:
`
`1.
`
`Lithium metal oxide cathode materials that infringe one or more of claims 1 -4, 7,
`
`13, and 14 of the '082 patent, or claims 1-4, 8, 9, and 17 of the '143 patent that are manufactured
`
`by, or on behalf of, or imported by or on behalf of Umicore N . V. and Umicore U SA Inc. or any
`
`of their affiliated companies, parents, subsidiaries, agents, or other related business entities, or
`
`their successors or assigns are excluded f r om entry for consumption into the United States, entry
`
`for consumption from a foreign trade zone, or withdrawal f r om a warehouse for consumption, for
`
`the remaining term of the patent, except under license of the patent's owner or as provided by
`
`law.
`
`2.
`
`Notwithstanding paragraph 1 of this Order, the aforesaid lithium metal oxide
`
`cathode materials are entitled to entry into the United States for consumption, entry for
`
`consumption from a foreign trade zone, or withdrawal f r om a warehouse for consumption, under
`
`bond in the amount of three percent (3%) of the entered value of the products pursuant to
`
`subsection Q) of section 337 o f t he Tariff Act of 1930, as amended, 19 U.S.C. § 13370), and the
`
`Presidential Memorandum for the United States Trade Representative of July 21, 2005 (70 Fed.
`
`Reg. 43,251), from the day after this Order is received by the United States Trade
`
`Representative, and until such time as the United States Trade Representative notifies the
`
`Commission that this action is approved or disapproved but, in any event, not later than 60 days
`
`after the issuance of receipt of this Order.
`
`2
`
`
`
`3.
`
`At the discretion of U.S. Customs and Border Protection ("CBP") and pursuant to
`
`procedures it establishes, persons seeking to import lithium metal oxide cathode materials that
`
`are potentially subject to this Order may be required to certify that they are familiar with the
`
`terms of this Order, that they have made appropriate inquiry, and thereupon state that, to the best
`
`of their knowledge and belief, the products being imported are not excluded from entry under
`
`paragraph 1 of this Order. At its discretion, CBP may require persons who have provided the
`
`certification described in this paragraph to furnish such records or analyses as are necessary to
`
`substantiate this certification.
`
`4.
`
`In accordance with 19 U.S.C. § 1337(1), the provisions of this Order shall not
`
`apply to infringing lithium metal oxide cathode materials that are imported by or for the use of
`
`the United States, or imported for and to be used for, the United States with the authorization or
`
`consent of the Government.
`
`5.
`
`The Commission may modify this Order in accordance with the procedures
`
`described in section 210.76 of the Commission's Rules of Practice and Procedure (19 C.F.R.
`
`§ 210.76).
`
`6.
`
`The Secretary shall serve copies of this Order upon each party of record in this
`
`investigation and upon the Department of Health and Human Services, the Department of
`
`Justice, the Federal Trade Commission, and CBP.
`
`7.
`
`Notice of this Order shall be published in the Federal
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`Register.
`
`By order of the Commission.
`
`Issued: December 16, 2016
`
`Lisa R. Barton
`Secretary to the Commission
`
`3
`
`
`
`C E R T A IN L I T H I UM M E T AL O X I DE C A T H O DE
`M A T E R I A L S, L I T H I U M - I ON B A T T E R I ES F OR P O W ER
`T O OL P R O D U C TS C O N T A I N I NG S A M E, AND P O W ER
`T O OL P R O D U C TS W I TH L I T H I U M - I ON B A T T E R I ES
`C O N T A I N I NG S A ME
`
`P U B L IC C E R T I F I C A TE OF S E R V I CE
`
`Inv. No. 337-TA- 951
`
`I, Lisa R. Barton, hereby certify that the attached C O M M I S S I ON O R D ER has been
`served by hand upon the Commission Investigative Attorney, Vu B u i, Esq., and the following
`parties as indicated, on December 16, 2016.
`
`^
`
`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`On Behalf of Complainants B A SF Corporation and UChicago
`Argonne L L C:
`
`D. Sean Trainor
`K I R K L A ND & E L L IS L LP
`655 Fifteenth Street, N . W.
`Washington, D.C. 20005
`
`On Behalf of Respondents Umicore N.V. and Umicore U SA
`Inc.:
`
`Joseph V. Colaianni, Jr.
`F I SH & R I C H A R D S ON P . C.
`1425 K Street, N.W., 1 1th Floor
`Washington, D.C. 20005
`
`• Via Hand Delivery
`Kl Via Express Delivery
`• V ia First Class Mail
`• Other:
`
`• V ia Hand Delivery
`[X] V ia Express Delivery
`• Via First Class Mail
`• Other:
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