Marsuda-rodgers International, Plaintiff-appellee, v. the United States, Defendant/appellant,andthe Timken Company, Intervenor-appellant, 923 F.2d 871 (Fed. Cir. 1990)

The United States and the Timken Company appeal from a decision of the Court of International Trade reversing a determination of the International Trade Commission (ITC) that a domestic industry was materially injured by importation of unfairly competing tapered roller bearings (TRB). The court held that the ITC's finding of competition under 19 U.S.C. § 1677(7) (C) (iv) was unsupported by substantial evidence. Marsuda-Rodgers Int'l v. U.S., 719 F. Supp. 1092 (Ct. Int'l Trade 1989). We REVERSE.

OPINION

The court's holding, that the ITC's finding of competition was not supported by substantial evidence, was incorrect. The court erroneously dismissed non-price considerations supporting the ITC's finding. In doing so it disregarded overlapping sales, 719 F. Supp. at 1099-1100, and fused a "like product" analysis with a "competition" analysis to equate competition with product fungibility, 719 F. Supp. at 1097.

The cumulation statute is concerned with competition. 19 U.S.C. § 1677(7) (C) (iv) (1988). Though identity of prices and products may be a factor, there are many other factors which can support a finding of competition. Fundicao Tupy S.A. v. U.S., 859 F.2d 915, 917 (Fed. Cir. 1988) (adopting Court of International Trade's analysis at 678 F. Supp. 898, 902).