UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`In the Matter of
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`CERTAIN ROAD MILLING MACHINES
`AND COMPONENTS THEREOF
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`Investigation No. 337-TA-______
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`Docket No. 3238
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`COMPLAINANT’S REPLY TO PROPOSED RESPONDENTS’ COMMENTS
`RELATING TO THE PUBLIC INTEREST
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`Caterpillar’s1 comments reveal nothing indicating that a remedial order in this
`Investigation would be contrary to the public interest. Instead, Caterpillar makes vague assertions
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`about the general importance of roads and infrastructure, without providing any nexus between a
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`generalized public interest in improving infrastructure and the effect of any remedial order in this
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`case.
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`First, Caterpillar identifies itself as the world’s leading manufacturer of construction and
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`mining equipment, diesel and natural gas engines, industrial gas turbines, and diesel-electric
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`locomotives. The accused products, however, are road milling machines. The requested remedial
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`order has nothing to do with mining equipment, engines, turbines, or locomotives. Tellingly,
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`Caterpillar does not mention that it only recently launched its infringing road milling machines in
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`an attempt to revitalize its meager sales in the road milling market segment. There is no reason to
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`believe that excluding Caterpillar’s infringing road milling machinery from the market now
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`would harm the public interest. Put simply, the market was supplying sufficient road milling
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`machinery before Caterpillar’s new infringing machines entered the market; it can continue to do
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`so if Caterpillar’s new infringing machines are excluded.
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`In fact, Caterpillar does not—and cannot—contend that Wirtgen America alone would be
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`unable to readily replace any articles excluded by a remedial order. As Wirtgen America is by far
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`1 Proposed respondents are Caterpillar Inc., Caterpillar Paving Products, Inc., Caterpillar Bitelli
`SpA, Caterpillar Prodotti Stradali S.r.L., and Caterpillar Americas CV (collectively,
`“Caterpillar”).
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`the largest supplier of road milling equipment, there is every reason to believe that Wirtgen
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`America could readily replace the loss of the accused products.
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`More broadly, Caterpillar cannot identify any actual public harm that would result from
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`the requested remedial order. Caterpillar largely makes general observations about the
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`importance of transportation infrastructure to society, and it speculates about a broad government
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`interest in improving that infrastructure. Neither observation has anything to do with
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`Caterpillar’s road milling machinery. Even if a major highway renewal project were imminent,
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`Caterpillar gives no reason to believe that any harm would come to the public as a result of
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`Caterpillar’s inability to contribute the infringing road milling machinery to that effort.
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`Caterpillar contends that its road milling machines are “critical” to “help” meet the
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`challenges of improving transportation infrastructure. But it provides no explanation, however,
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`as to why its road milling machines are so “critical” when it does not dispute that Wirtgen
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`America could satisfy all of the public demand. Moreover, Caterpillar’s worries about the need
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`for infrastructure—taken to their logical conclusion—would mean that the Commission could
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`never issue a remedial order against any product used in transportation infrastructure, from
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`asphalt to shovels.
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`The only concrete harm that Caterpillar identifies as a result of the requested remedy is a
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`speculative disruption of already-scheduled equipment deliveries, service, and repairs that might
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`potentially burden an undisclosed number of unidentified third parties. But this assertion is so
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`lacking in facts and specifics that it cannot raise a genuine public interest concern. Even if true,
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`the fact that a third party might not obtain the product of their choice does not harm the public at
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`large—it is true of every remedial order issued by the Commission. See Certain Personal Data
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`& Mobile Commc’ns Devices and Related Software, Inv. No. 337-TA-710, Comm’n Op. at 69
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`(Dec. 29, 2011) (“[E]xclusion necessarily affects consumer choice. Accordingly, the mere
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`constriction of choice cannot be a sufficient basis for denying the issuance of an exclusion
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`order”).
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`2
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`Finally, Caterpillar does not suggest that any discovery into the public interest would
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`reveal any evidence to support its vague claims. Therefore, there is simply no reason to delegate
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`the public interest to the ALJ. And there is no reason to withhold issuance of a permanent
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`exclusion order and cease and desist order against Caterpillar’s infringing road milling
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`machinery due to the public interest. See Certain Mobile Devices, Associated Software, &
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`Components Thereof, Inv. No. 337-TA-744, Comm’n Op. at 31 (U.S.I.T.C. June 5, 2012)
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`(“the public interest favors the protection of U.S. intellectual property rights”).
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`August 7, 2017
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` Respectfully submitted,
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`________________________________________
`COUNSEL FOR COMPLAINANT WIRTGEN AMERICA, INC.
`Daniel E. Yonan
`Michael E. Joffre
`Paul Ainsworth
`Kyle E. Conklin
`Ralph W. Powers III
`STERNE, KESSLER, GOLDSTEIN & FOX, P.L.L.C.
`1100 New York Avenue, NW
`Washington, DC 20005
`(202) 371-2600
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`John F. Triggs
`Ryan D. Levy
`William E. Sekyi
`Seth R. Ogden
`PATTERSON INTELLECTUAL PROPERTY LAW, P.C.
`Roundabout Plaza, Suite 500
`1600 Division Street
`Nashville, TN 37203
`(615) 242-2400
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`3
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`CERTAIN ROAD MILLING MACHINES
`AND COMPONENTS THEREOF
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`Docket No. 337-TA-3238
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`CERTIFICATE OF SERVICE
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`I, DuVon O. Floyd, hereby certify that on this day, August 7, 2017, a true and correct
`copy of the foregoing COMPLAINANT’S REPLY TO PROPOSED RESPONDENTS’
`COMMENTS RELATING TO THE PUBLIC INTEREST was filed and served upon the
`following as indicated:
`
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, S.W., Room 112
`Washington, DC 20436
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` Via Electronic filing (EDIS)
` Via Hand Delivery (8 copies)
` Via First Class Mail
` Via Electronic Mail
` Via Overnight Courier
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`On Behalf of Proposed Respondents Caterpillar Inc., Caterpillar Paving Products, Inc.,
`Caterpillar Bitelli SpA, Caterpillar Prodotti Stradali S.r.L., and Caterpillar Americas CV
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`Christine Lehman, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT &
`DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001
`Email: christine.lehman@finnegan.com
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` Via Hand Delivery
` Via First Class Mail
` Via Electronic Mail
` Via FedEx (Next Business Day)
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` /s/ DuVon O. Floyd
`DuVon O. Floyd
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`Litigation Paralegal
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