By Eric Schweibenz
On April 26, 2010, ALJ E. James Gildea issued Order No. 33 denying a motion brought by nonparties Samsung Electronics America, Inc., Samsung Electronics Co., Ltd., Samsung Semiconductor, Inc., Samsung Telecommunications America, LLC, Hewlett-Packard Company, and Transcend Information, Inc. (collectively, the “Nonparties”) requesting permission to participate as amicus curiae in the remanded portion of the investigation in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650).

By way of background, the ITC issued a notice on December 14, 2009 determining to review a portion of ALJ Gildea’s October 13, 2009 final initial determination (“ID”) finding that no violation of Section 337 had occurred in connection with the non-defaulting respondents’ importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain coaxial cable connectors by reason of infringement of U.S. Patent No. 5,470,257, and asking the parties and members of the public to comment on “the interpretation of section 337(a)(3) as it pertains to licensing.”  See our December 16, 2009 post for more details.  On April 14, the Commission issued the public version of its opinion vacating the ID insofar as ALJ Gildea found that a domestic industry exists under section 337(a)(3)(C), and affirming in part, reversing in part, and remanding on a number of other issues included in the ID.  See our April 16, 2010 post for more details.

Citing the Commission’s request for public comment, the Nonparties appealed to the ALJ’s discretionary authority and requested to participate in the remand hearing and submit remanded briefing, as well as limited access to the confidential record.  The Nonparties argued that “there are serious concerns about the complete development of the record,” and that they would like an opportunity to participate in litigating “foundational issues regarding the domestic industry requirement.”  Complainant John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) opposed the motion, arguing that the OUII will “fully and ably” represent the public interest and that “extensive cross examination” by the OUII is anticipated at the remand hearing, thus obviating the need for the Nonparties to develop the record in place of the defaulting respondents.  PPC also argued that the Nonparties have no expertise in the coaxial cable industry and will “delay and interfere with the resolution of the issues before the ALJ and not contribute meaningfully to the development of the record,” and objected to providing the Nonparties with access to its confidential business information.  OUII argued that the Nonparties inappropriately seek full litigating status, even though their request is for amicus curiae status, and that they do not have a common interest relating to the property of the defaulting respondents, just a “generalized concern regarding other investigations.”

ALJ Gildea found that the Nonparties and other members of the general public have had ample opportunity to respond to the ITC’s request for commentary on the interpretation of Section 337(a)(3) as it pertains to licensing.  ALJ Gildea noted that the Commission reviewed and considered the public’s comments in arriving at its decision to remand a portion of the investigation for further proceedings, and observed that the remand order – which provided detailed instructions relating to the remand of the investigation – did not provide for further comment or participation by the general public.  Furthermore, ALJ Gildea determined that the issues under consideration on remand are narrow, fact-specific, and guided by the principles set forth in both the ITC’s opinion and remand order.  Thus, ALJ Gildea found that the Nonparties’ additional commentary and participation during remand are not warranted and the anticipated delay and added complexity caused by amicus curiae participation would run counter to the ITC’s order to issue a remand initial determination “at the earliest practicable time.”  To the extent that the remand hearing is open to the public, ALJ Gildea stated that the Nonparties are welcome to observe the proceedings.