United States International Trade Commission Washington, D.C. 20436 In the Matter o f 1 .. . 1 Investigation No. 337-TA-52 1 Certain Apparatus for the Continuous Production of Copper Rod 1 COMMISSION DETERMINATION AND ORDER Introduction The United States International Trade Commission conducted investigation No. 337-TA-52 pursuant to section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) on the importation and sale o f certain apparatus for continuous production of copper rod. The Commission determined that there are violations of the statute by Fried. Krupp GmbH and Krupp International, Inc., with regard to United States Letters Patent No. 3,317,994, Trade Secret No. 5, concerning the rod coiling apparatus, and Trade Secret No. 11, concerning certain features of the in-line cooling and cleaning pipe. The Commission determined that there is no violation of section 337 by Western Electric Company, American Telephone and Telegraph Company, and Nassau Recycle Corporation. Determination . Having reviewed the evidentiary record in this matter, the Commission has L . determined: 2 1. That there are unfair methods o f competition and unfair acts in the importation or sale of articles for the continuous production of copper rod with respect to (1) infringement of United Letters Patent No. 3,317,994 by Fried. Krupp GmbH and Krupp International, Inc., (2) misappropriation of Trade Secret No. 5, concerning the rod coiling apparatus, by Fried. Krupp GmbH and .. Krupp International, Inc., and (3) misappropriation o f Trade Secret No. 11, a . concerning certain features of the in-line cooling and cleaning pipe, by Fried. Krupp GmbH and Krupp International, Inc., and that the tendency of these unfair practices is to substantially injure an industry, efficiently and economically operated, in the United States; 2. That there is no violation of section 337 of the Tariff Act o f 1930 by Western Electric Company, American Telephone and Telegraph Company and Nassau Recycle Corporation; 3. That the issuance of cease and desist orders pursuant to section 337(f), as set forth in the order below, is the appropriate means to remedy the respective patent and trade secret violations of section 337 which the Commission found to exist with respect to Fried. Krupp GmbH and Krupp International, Inc.; 4. That, after considering the effect of these cease and desist orders upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, these cease and desist orders I should be imposed; and 3 5. That the bond provided for in subsection 337(g)(3) of the Tariff Act of 1930 (19 U.S.C. 1337(g)(3)) shall be in the amount of 25 per cent ad valorem (ad valorem to be determined in accordance with section 402 of the Tariff Act of 1930 (19 U.S.C. 1401(a)) of the imported articles. - Order Accordingly, it is hereby ordered that: 1. Respondents Fried. Krupp GmbH and Krupp International, Inc., shall cease and desist from the importation into in the United States, or the sale to purchasers in the United States, of articles for the continuous production o f copper rod which are suitable for use in infringing--and are, in fact, subsequently so used with resulting infringement of--the method claimed by United States Letters Patent No. 3,317,994. This order shall be effective with respect to articles entered, or withdrawn from warehouse, for consumption on or after the date of publication in the Federal Register and on or before May 9, 1984, the date the aforesaid patent expires, except under license from Southwire Company and except as provided hereinafter by paragraph 4; 2. Respondents Fried. Krupp GmbH and Krupp International, Inc., shall cease and desist (a) from the importation into the United States, or the sale to purchasers in the United States, of articles for the continuous production of copper rod which incorporate in whole or in part the subject matter of Trade Secret No. 5, concerning the rod coiling apparatus and (b) from disclosing any of the subject matter of Trade Secret No. 5 in connection with such importation or sale. This order shall be effective with respect to articles entered, or withdrawn from warehouse, for consumption during the i 4 seven-year period beginning on the date this order is published in the Federal Register, except under license from Southwire Company and except as provided hereinafter by paragraph 4; 3. Respondents Fried. Krupp GmbH and Krupp International, Inc., shall cease and desist (a) from the importation into the United States, or the sale to purchasers in the United States, of articles for the continuous production o f copper rod which articles incorporate in whole or in part the subject matter of Trade Secret No. 11, concerning certain aspects of the rod cooling and cleaning line, and (b) from disclosing any of the subject matter o f Trade Secret No. 11 in connection with such importation or sale. This order shall be effective with respect to articles entered, or withdrawn from warehouse, for consumption during the five-year period beginning on the date this order is published in the Federal Register, except under license from Southwire Company and except as provided hereinafter by paragraph 4; 4. (a) Articles which are suitable for use in the practice of United States Letters Patent No. 3,317,994, (b) articles which incorporate in whole or in part the subject matter Trade Secret No. 5, concerning the rod coiling apparatus, and (c) articles which incorporate in whole or in part the subject matter Trade Secret No. 11, concerning certain features of the in-line cooling and cleaning pipe, are entitled to entry under bond in the amount of 25 percent ad valorem (ad valorem to be determined in accordance with section 402 of the Tariff Act o f 1930 (19 U.S.C. 1401(a)) from the day after the day this order is received by the President pursuant to section 337(g) of the Tariff Act of 1930 until such time as the President notifies the Commission that he approves or disapproves this sction, but, in any event, not later than sixty days after such day of receipt; 5 b 5. That, as an ancillary matter, paragraphs 1 and 3 of Order No. 70 of the Administrative Law Judge, dated January 19, 1979, relating to an alleged protective order violation in this proceeding, are hereby vacated; 6. That, in light of objections received from the parties, the matter proposed for admission into the record by counsel for Asarco, Inc., a non-party to this investigation, during the September 26, 1979, presentations before the Commission concerning relief, bonding, and the public interest (marked for identification as Exhibit OA-51, is not admitted into the record in this investigation. 7. That this determination and order and the public versions o f the cease and desist orders as well as the confidential versions of the cease and desist orders concerning Trade Secret Nos. 5 and 11 w i l l be served upon each party o f record in this investigation. This determination and order and the public versions o f the cease and desist orders w i l l be published in the Federal Register and served upon the United States Department of Health, Education and Welfare, the United States Department of Justice, the Federal Trade Commission, and the Secretary of the Treasury; and 8. That the United States International Trade Commission may amend this order at any time. By order of the Commission: Jd4z7+! -- Kenneth R. Mason S ec re t ary Issued: November 23, 1979 United States International Trade Commission Washington, D.C. 20436 In the Matter of 1 1 Investigation No. 337-TA-52 Certain Apparatus for the 1 Continuous Production of Copper Rod , , 1 ORDER REQUIRING FRIED. KRUPP GMBH AND KRUPP INTERNATIONAL, INC., TO CEASE . AND DESIST IMPORTING OR SELLING ARTICLES FOR THE CONTINUOUS PRODUCTION OF COPPER ROD WHICH ARTICLES ARE SUITABLE FOR USE IN INFRINGING--AND ARE, IN FACT, SUBSEQUENTLY SO USED WITH RESULTING INFRINGEMENT OF--THE METHOD CLAIMED BY UNITED STATES LETTERS PATENT NO. 3,317,994 I. Definitions The terms in quotations below shall be defined as shown for purposes of interpreting this Order: ItC ommission" refers to the United States International Trade Commission. "Krupp" refers to Fried. Krupp GmbH and Krupp International, Inc. "United States" refers to the fifty states, the District of Columbia, and Puerto Rico. 11. Conduct Prohibited Krupp shall not import into the United States, or sell to purchasers in the United States, articles for the continuous production of copper rod which are suitable for use in infringing--and are, in fact, subsequently so used with resulting infringement of-the method claimed by United States Letters 1 2 Patent No. 3,317,994. This order shall be effective with respect to articles entered, or withdrawn from warehouse, for consumption on or after the date of publication in the Federal Register and on or before May 9, 1984, the date the aforesaid patent expires, except under License from Southwire Company and except under bond during the 60-day period of presidential review, as determined by the Commission pursuant to section 337(g) of the Tariff Act of 1930. Importation into the United States and sale to purchasers in the United States shall, for the purposes of this Order, be deemed to have ceased when such articles have been shipped into the United States, the article or articles have been set up in working order, and commercial production of copper rod has begun. 111. Reporting Krupp shall report to the Commission: all sales, exports, and shipments of articles for the continuous production of copper rod to purchasers in the United States; all letters of intent, whether written, oral, or whatever form, to enter into contracts to sell, export or ship articles for the continuous production of copper rod to purchasers in the United States; all contracts, whether written, oral, or whatever form, to sell, export, or ship articles for the continuous production of copper rod to purchasers in the United States; and all delivery orders, bills of lading, and all other documents relating to the sale, export, or shipment of articles for the continuous production of copper rod to purchasers in the United States. The first such report under this paragraph shall be due 90 days after the publication of this Order in the Federal Register. Subsequent reports shall be due on November 30, 1980,