The United States International Trade Commission’s Initial Determination on the Mitsubishi Heavy Industries, Ltd. (MHI) ’s 2.4 MW variable speed wind turbines

(Mitsubishi Heavy Industries America, Inc.)

The United States International Trade Commission (“ITC”) conducted an investigation, based on a complaint filed by General Electric (“GE”), regarding whether MHI’s 2.4 Megawatt variable speed wind turbines infringed certain patents owned by GE.  On August 7, 2009, ITC Administrative Law Judge Charneski issued his initial determination (“Initial Determination”) that importation of MHI’s 2.4 MW variable speed wind turbines violated Section 337 of the Tariff Act of 1930.  MHI disagrees with this initial determination, and intends to seek review of this decision

MHI’s view regarding Initial Determination is as follows:

The Initial Determination is not the final decision of the ITC. The final decision is expected from the ITC commissioners (“Commissioners”) on or around December 7, 2009 (“Final Determination”).  The Initial Determination itself does not result in suspending importation of MHI’s 2.4 MW variable speed wind turbines, but is instead a recommendation of the Administrative Law Judge to the Commissioners, who will consider whether the Initial Determination should be modified or reversed.

MHI intends to pursue all avenues of relief including, but not limited to, asking the Commissioners to review those portions of the Initial Determination which find the GE patents to be valid, enforceable, and infringed, and MHI believes that the Commissioners will agree that importation of MHI’s 2.4 MW variable speed wind turbines did not violate Section 337 of the Tariff Act of 1930.

1. Summary of this investigation

GE filed a complaint with the ITC in early 2008 alleging that MHI’s 2.4 Megawatt variable speed wind turbines infringed two patents owned by GE and thus violated Section 337 of the Tariff Act of 1930.  GE later amended its complaint to allege infringement of a third patent owned by GE.

2. Summary of the Initial Determination

The Administrative Law Judge found that MHI’s wind turbines infringe GE’s patents, but found that GE did not use one of those patents in its own wind turbines.  Thus, the Judge found a violation of Section 337 of the Tariff Act of 1930 regarding two of the three patents asserted, and found no violation regarding the third patent. The Judge did not include his recommendation regarding remedy associated with such violation.  The Judge has fourteen days to make such recommendation.

3. MHI’s view

MHI respects the intellectual property rights of others, and believes that it has not infringed any valid, enforceable patents of GE, and that there has been on violation of Section 337 of the Tariff Act of 1930. 

4. Future perspective on this issue.

MHI does not expect any interruption in its business while the Commissioners review the Initial Determination. The Commissioners review will be conducted and the Final Determination will be published on or around December 7, 2009.  MHI believes there is ample justification for the Commissioners to reverse the Initial Determination in response to our request for review. 

Although the Final Determination will be the final decision from the ITC, it is subject to further review by the Office of the President of the United States and also by the Court of Appeals for the Federal Circuit.  The Federal Circuit can modify or reverse the Final Determination, while the President can decline to impose the relief suggestion by the ITC.

As stated above, this decision is not final.  MHI will promptly disclose any future developments in this investigation which are necessary for proper disclosure.

MHI will continue to support its customers in the United States in their efforts to increase energy production from clean, renewable resources.