By Eric Schweibenz
On June 1, 2009, the ITC issued a Notice determining to review the April 1, 2009 Remand Initial Determination (“RID”) in Certain R-134a Coolant (Otherwise Known as 1,1,1,2-Tetrafluorothane) (337-TA-623).

By way of background, this investigation was instituted in December 2007 based on a complaint filed by INEOS Fluor Holdings Ltd., INEOS Fluor Ltd. and INEOS Fluor Americas LLC (“INEOS”).  INEOS’ complaint alleged violations of section 337 by respondents Sinochem Modern Environmental Protection Chemicals (Xi’an) Co. Ltd., Sinochem Ningbo Ltd., Sinochem Environmental Protection Chemicals (Taicang) Co., Ltd., and Sinochem (U.S.A.) Inc. (collectively, “Sinochem”) in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain R-134a coolant (otherwise known as 1,1,1,2-tetrafluorothane) by reason of infringement of certain patents, including U.S. Patent No. 5,559,276 (the “‘276 patent”).

On December 1, 2008, Chief ALJ Paul J. Luckern issued a final initial determination (“ID”) that Sinochem infringed the ‘276 patent and the domestic industry requirement had been met.  ALJ Luckern further determined that Sincochem failed to establish that the ‘276 patent was invalid or unenforceable.  Following submissions by the parties, the Commission reviewed the ID with respect to invalidity and issued an order on January 30, 2009 remanding the investigation to the ALJ for further proceedings related to anticipation and obviousness because the disposition of these issues was unclear from the ALJ’s ID.

As explained in our April 6 post, on April 1, 2009, ALJ Luckern issued the Remand Determination concluding that Sinochem’s arguments regarding anticipation and obviousness were waived under the ground rules and, alternatively, that the arguments were without merit.  Sinochem subsequently filed a petition for review.

Through its June 1, 2009 notice, the ITC has determined to review the RID in its entirety.  The ITC also requested further briefing on five questions relating to obviousness and waiver issues.  According to the Notice, written submissions are due on June 15, 2009; and reply submissions are due on June 25, 2009.

The ITC also extended the target date for completion of this investigation to August 3, 2009.