H324074

HQ H324074 November 30, 2023 OT:RR:BSTC:EOE H324074 SEH CATEGORY: 19 U.S.C. §1337; Unfair Competition VIA EMAIL: Tommy.Martin@BakerBotts.com; DLCMC177@BakerBotts.com Tommy Martin, Esq. Katharine Burke, Esq. Baker Botts L.L.P. 700 K Street, NW Washington, DC 20001 RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1204; Certain Chemical Mechanical Planarization Slurries and Components Thereof Dear Mr. Martin: Pursuant to 19 C.F.R. Part 177, the Exclusion Order Enforcement Branch (“EOE Branch”), Regulations and Rulings, U.S. Customs and Border Protection (“CBP”) issues this administrative ruling in response to the ruling request and accompanying Exhibits A-Y (collectively, “ruling request”) submitted on behalf of CMC Materials, Inc. (“CMC”), the complainant from Investigation No. 337-TA-1204 (“the 1204 investigation” or “underlying investigation”) at the U.S. International Trade Commission (“Commission” or “ITC”). Specifically, CMC requested a ruling whether the limited exclusion order (“LEO”) that the Commission issued under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”), covers [[ ]], namely [[ ]], when imported to make certain chemical mechanical planarization (“CMP”) slurries, such as the Optiplane 2300 and Optiplane 2600 families, that were at issue in the underlying investigation. See, e.g., Ruling Request at 1-2. This request for an administrative ruling under 19 C.F.R. § 177 has been conducted on an inter partes basis, with consent of the relevant parties: (1) your client CMC, the ruling requester and complainant from the 1204 investigation and (2) the following respondents from the 1204 investigation (collectively “DuPont”): DuPont de Nemours, Inc., of Wilmington, Delaware; Rohm and Haas Electronic Materials CMP LLC of Newark, Delaware; Rohm and Haas Electronic Materials CMP Asia Inc. (d/b/a Rohm and Haas Electronic Materials CMP Asia Inc., Taiwan Branch (U.S.A.)) of Taoyuan City, Taiwan; Rohm and Haas Electronic Materials Asia-Pacific Co., Ltd. of Miaoli, Taiwan; Rohm and Haas Electronic Materials K.K. of Tokyo, Japan; and Rohm and Haas Electronic Materials LLC of Marlborough, Massachusetts. See Email from the EOE Branch to CMC and DuPont, dated January 28, 2022; see also DuPont’s Response in Opposition to the 19 C.F.R. § 177 Request for Ruling (Feb. 22, 2022) (“Response”) at 1. If there is information in this ruling letter not currently bracketed in red [[ ]] that CMC or the DuPont believe constitutes confidential information, and should be redacted from the published ruling, the relevant party is asked to contact CBP within ten (10) working days of the date of this administrative ruling and identifying such confidential information with [[red brackets]]. See, e.g., 19 C.F.R. § 177.8(a)(3). Please note that disclosure of information related to administrative rulings under 19 C.F.R. Part 177 is governed by, for example, 6 C.F.R. Part 5, 31 C.F.R. Part 1, 19 C.F.R. Part 103, and 19 C.F.R. § 177.8(a)(3). See, e.g., 19 C.F.R. § 177.10(a). In addition, CBP is guided by the laws relating to confidentiality and disclosure, such as the Freedom of Information Act (“FOIA”), as amended (5 U.S.C. § 552), the Trade Secrets Act (18 U.S.C. § 1905), and the Privacy Act of 1974, as amended (5 U.S.C. § 552a). A request for confidential treatment of information submitted in connection with a ruling requested under 19 C.F.R. Part 177 faces a strong presumption in favor of disclosure. See, e.g., 19 C.F.R. § 177.8(a)(3). The person seeking this treatment must overcome that presumption with a request that is appropriately tailored and supported by evidence establishing that: the information in question is customarily kept private or closely-held and either that the government provided an express or implied assurance of confidentiality when the information was shared with the government or there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See, e.g., U.S. Department of Justice, Office of Information Policy: Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (updated 10/7/2019). BACKGROUND Investigation No. 337-TA-1204 As set forth in the Commission Opinion, the procedural history from the underlying investigation included the following: On July 7, 2020, the Commission instituted this investigation based on a complaint filed by Cabot Microelectronics Corporation (“CMC”) of Aurora, Illinois. 85 Fed. Reg. 40685-86 (July 7, 2020). The complaint, as supplemented, alleged violations of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain chemical mechanical planarization (“CMP”) slurries and components thereof, including colloidal silica abrasive particles, by reason of infringement of one or more of claims 1, 3-6, 10, 11, 13, 14, 18-20, 24, 26-29, 31, 35-37, and 39-44 of U.S. Patent No. 9,499,721 (“the ’721 patent”). Id. at 40685. The Commission’s notice of investigation named as respondents DuPont de Nemours, Inc. of Wilmington, Delaware; Rohm and Haas Electronic Materials CMP, LLC of Newark, Delaware; Rohm and Haas Electronic Materials CMP Asia Inc. (d/b/a Rohm and Haas Electronic Materials CMP Asia Inc., Taiwan Branch (U.S.A.)) of Taoyuan City, Taiwan; Rohm and Haas Electronic Materials Asia-Pacific Co., Ltd. of Miaoli, Taiwan; Rohm and Haas Electronic Materials K.K. of Tokyo, Japan; and Rohm and Haas Electronic Materials LLC of Marlborough, Massachusetts (collectively, “Respondents” or “DuPont”). Id. at 40686. The Office of Unfair Import Investigations (“OUII”) is participating in this investigation. Id. *** The ALJ held an evidentiary hearing from February 3-5, 2021, and received post-hearing briefs thereafter. On July 8, 2021, the ALJ issued the final ID finding a violation of section 337. The ID found that the parties do not contest personal jurisdiction and that the Commission has in rem jurisdiction over the accused products. ID at 11. The ID further found that the importation requirement under 19 U.S.C. § 1337(a)(1)(B) is satisfied. ID at 11-30. The ID also found that CMC established the existence of a domestic industry that practices the ’721 patent. ID at 144-169, 297-314. The ID concluded that CMC proved that Respondent’s accused products infringe the asserted claims of the ’721 patent and that Respondents failed to show that the asserted claims are invalid. ID at 87-144. The ALJ’s recommended determination on remedy and bonding (“RD”) recommended that, should the Commission find a violation, issuance of a limited exclusion order and cease and desist orders would be appropriate. ID/RD at 316-331. The RD also recommended imposing a bond in the amount of one hundred percent (100%) of entered value for covered products imported during the period of Presidential review. RD at 331. On July 29, 2021, DuPont and OUII filed separate petitions for review of the ID. On August 12, 2021, CMC submitted responses to the petitions filed by DuPont and OUII, and OUII submitted a response to DuPont’s petition. On September 22, 2021, the Commission determined to review the ID in part. 86 Fed. Reg. 53674-76 (Sept. 28, 2021) (“Notice of Review”). Specifically, the Commission determined to review the ID’s findings on importation, infringement, and domestic industry. Id. at 53675. The Commission determined not to review the remainder of the ID. In connection with its review, the Commission requested briefing from the parties. Id. The Commission also requested briefing from the parties, interested government agencies, and other interested persons on remedy, the public interest, and bonding. Id. On October 6, 2021, the parties submitted their opening briefs. On October 13, 2021, the parties filed their reply br

Importation Pursuant to the StipulationCMC and DuPont agree that “[[ ]].” Stipulation (dated Jan. 26, 2023). Based on the parties’ agreement, and subject to its provisions, the articles in question from the Stipulation are not subject to the exclusion order and may be entered accordingly. Importation of [[ ]]As noted above, the articles at issue in this ruling request did not form the basis for the Commission’s final determination regarding the violation of section 337 and the Commission removed the “components thereof” language from the LEO, which may have otherwise captured them within the scope of the exclusion order without further consideration. Accordingly, CMC has submitted this ruling request to address the articles at issue with a view to the Commission Opinion, as referenced in the points below. “[W]ith regard to the composition claims,” the Commission affirmed the finding in “the ID [] that the ‘Accused Products’ – in that context, the Optiplane™ 2300 and 2600 slurries – directly infringe the asserted claims of the ‘721 patent, which the Commission understands to mean that the completed slurries practice each and every limitation of the asserted composition claims and carry out all of the steps of the method claims when used” and, as such, in that context, found “that importation of the Optiplane™ slurry is a violation of section 337[.]” (Comm’n Op. at 14) The Commission affirmed, “[w]ith respect to the completed slurries, [where] the ID found direct infringement based on Respondents’ use of the completed slurries as well as Respondents’ sale of the completed slurries in the United States. (Comm’n Op. at 15-16) The Commission “determined to affirm a violation of section 337 with respect to the importation of BS-3 particles based on the ID’s indirect infringement findings[.]” (Comm’n Op. at 15) The Commission affirmed the finding that, “[w]ith regard to the BS-3 particles, the ID found direct infringement of the composition and method claims based on Respo