United States Court of Appeals for the Federal Circuit

99-1293

NUTRINOVA NUTRTION SPECIALTIES AND FOOD INGREDIENTS GmbH

And NUTRINOVA, INC

                                      Appellan

v.

INTERNATIONAL TRADE COMMISSION

                                       Appellate

 And

HANGZHOU SAHE FOOD COMPANY LTD.

HANGZHOU SANHE FOOD ADDITIVES FACTORY.

JRS INTERNATIONAL INC., DINGSHENG INC.

and WYZ TECH INC.

                    Interveners

Larry L. Shatzer. ll Foley & Lardner of Washington DC. argued for appellants. With him on the brief were Charles F. Schill and Melinda F. Levitt.

Cvnthia P. Johnson, Attorney, Office of the General Counsel, U.S. International Trade Commission, of Washington. DC. argued for appellee. With her on the brief was Lyn M. Schlitt, General Counsel; James A. Toupin, Deputy General Counsel; and Rozann M. Stayden. Attorney.

Gray M. Hnath, Venable, Baetjer, Howard & Civllettti LLP. of Washington. DC. argued for intervenors. With him on the brief was Michale P. Learv.

Appealed from:  United States International Trade Commission

DECIDED: August 25,2000.

Before PLAGER, LOURIE, and BRYSON Circuit Judges.

PLAGER Circuit Judges.

Nutrinova Nutrition Specialties and Food Ingredients GmbH. And Nutrinova Inc. (collectively. “Nutrinova”) own U.S. Patent No. 4,695,629 (“the ‘629 patent”) which covers a process for producing an artificial sweetener, acesulfame potassium (“ASK”). After examining sample batches of ASK imported from the People’s Republic of China which raised concerns that the samples were produced by unauthorized use of its patented process. Nutrinova requested that the International Trade Commission           (“ITC” or “Commission”) enjoin the importation of allegedly infringing ASK from China for violation of 19 U.S.A.  §1337 (1994). Section 1337 generally prohibits importation into the United States, the sale for importation, or sale within the United States after importation of a product the infringes a United States patent. After an investigation, the Commission found no infringement and declined to enjoin importation of ASK from China.

Nutrinova appeals from the Commission’s findings and conclusions, arguing that, under 35 U.S.C. § 295(1994), the Commission should have shifted the burden to the accused infringes to disprove infringement, rather than requiring that Nutrinova assume the burden of proving infringement. This is a case of first impression regarding the interpretation of § 295. Because there was no error in the manner in which the commission allocated the burden of proof and because substantial evidence supports the Commission’s findings, we affirm.