[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Notices]
[Pages 25707-25709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10946]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-685]
In the Matter of Certain Flash Memory and Products Containing
Same; Notice of Commission Decision To Review in Part a Final
Determination Finding a Violation of Section 337; Request for Written
Submissions
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the presiding
administrative law judge's (``ALJ'') final initial determination
(``ID'') issued on February 28, 2011, finding a violation of section
337 of the Tariff Act of 1930, 19 U.S.C. 1337 in the above-captioned
investigation.
FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-2301. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street, SW., Washington, DC
20436, telephone (202) 205-2000. General information concerning the
Commission may also be obtained by accessing its Internet server at
http://www.usitc.gov. The public record for this investigation may be
viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information
on this matter can be obtained by contacting the Commission's TDD
terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted Inv. No. 337-TA-
685 on September 9, 2009, based on a complaint filed by Samsung
Electronics Co. (``Samsung'') of Suwon City, South Korea on August 21,
2009. 74 FR 45469 (Sept. 2, 2009). The complaint, as amended, alleged
violations of Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in
the importation into the United States, the sale for importation, and
the sale within the United States after importation of certain flash
memory and products containing same by reason of infringement of
certain claims of U.S. Patent Nos. 6,930,050 (``the `050 patent'') and
5,740,065 (``the `065 patent''). The
[[Page 25708]]
Commission's notice of investigation named numerous respondents,
including Spansion, Inc. and Spansion, LLC of Sunnyvale, California
(collectively, ``Spansion'') and D-Link Corporation of Taipei City,
Taiwan and D-Link Systems, Inc. of Fountain View, California
(collectively ``D-Link''). Respondents Spansion and D-Link are herein
referred to collectively as ``Respondents.''
On February 28, 2011, the ALJ issued his final ID, finding a
violation of Section 337. The ID included the ALJ's recommended
determination (``RD'') on remedy and bonding. In his ID, the ALJ found
that asserted claims 8 and 12 of the `065 patent are infringed. The ALJ
also found that claims 1, 8, and 12 of the `065 patent are not invalid
under 35 U.S.C. 102 for anticipation. The ALJ also found that the
asserted claims of the `065 patent are not invalid for failing to
satisfy the written description requirement of 35 U.S.C. 112 ] 1. The
ALJ further found that the asserted claims of the `065 patent are not
invalid as indefinite under 35 U.S.C. 112 ] 2. The ALJ also found that
there is a domestic industry with respect to claim 1 of the `065 patent
as required by 19 U.S.C. 1337(a)(2) and (3). In his RD, the ALJ
recommended that the appropriate remedy is a limited exclusion order
barring entry of infringing flash memory devices or products containing
same and that it would also be appropriate to issue cease and desist
orders against both Spansion and D-Link. The ALJ also recommended that
Respondents be required to post a bond equal to 2.4 percent of the
entered value of any accused product that they seek to import during
the period of Presidential review.
On March 14, 2011, Respondents filed a petition seeking review of
the ALJ's determination concerning the ALJ's findings on claim
construction, infringement, invalidity, and domestic industry. Also on
March 14, 2011, the Commission investigative attorney (``IA'') filed a
petition seeking review of the ALJ's determination concerning the ALJ's
findings on claim construction, infringement, validity, and the
domestic industry. On March 22, 2011, Samsung filed an opposition to
Respondents' and the IA's petitions for review. Also on March 22, 2011,
the IA filed a response to Respondents' petition for review on the
issue of invalidity under 35 U.S.C. 102 for anticipation. On March 25,
2011, the IA filed an unopposed motion for leave to file a public
version of its petition for review out of time. The Commission hereby
determines to grant the motion.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in part.
Specifically, the Commission has determined to review the ID's
construction of the limitation ``extracting an optimal working
condition by accumulatively averaging working conditions of lots
previously processed'' of claim 8 of the `065 patent. In particular,
the Commission has determined to review the ID's construction of
``extracting an optimal working condition by accumulatively averaging''
as not being limited to Equation (1) of the `065 patent. The Commission
has also determined to review the ID's construction of the
``extracting'' limitation of claim 8 as including the phrase ``suitable
lots.'' The Commission has further determined to review the ID's
construction of the claim limitation ``accumulatively averaging working
conditions of lots previously processed'' of claim 8 of the `065
patent. In particular, the Commission has determined to review the ID's
construction of the claim limitations ``accumulatively averaging'' and
``working conditions.''
The Commission has also determined to review the ID's finding that
Spansion's accused run-to-run alignment and exposure controllers
infringe claims 8 and 12 of the `065 patent. The Commission has further
determined to review the ID's finding that Japanese Unexamined Patent
Application Publication H5-47893, entitled ``Adjustment Method for
Semiconductor Manufacturing Apparatus'' does not anticipate claim 8 of
the `065 patent. The Commission has also determined to review the ID's
finding that claim 8 is not invalid for failing to satisfy the written
description requirement. The Commission has further determined to
review the ID's finding that claims 1, 8, and 12 are not invalid as
indefinite. The Commission has also determined to review the ID's
finding that Samsung's Exposure Parameter Optimization System practices
claim 1 of the `065 patent. The Commission has determined not to review
the remaining issues decided in the ID.
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in responses to the following questions:
1. Please address whether it is appropriate to apply a plain,
ordinary meaning analysis in construing the claim term ``accumulatively
averaging'' even though this term is admittedly a ``coined term.'' In
discussing this issue, please address the following questions:
a. If an ordinary meaning analysis of ``accumulatively averaging''
is appropriate, does the experts' testimony concerning the
understanding of one of ordinary skill in the art in any way conflict
with the meaning of the claim language as informed by the intrinsic
evidence?
b. If an ordinary meaning analysis is appropriate, what is the
definition of the word ``accumulatively'' and how does the meaning of
the word ``accumulatively'' affect the correct construction of
``accumulatively averaging?''
c. If an ordinary meaning analysis is appropriate, how does the
definition of ``accumulatively'' fit into the context of the purpose of
the `065 invention in terms of effective automatic process control.
d. If ``accumulatively averaging'' should be construed according to
its ordinary meaning, how would such an analysis affect the validity of
claim 1?
2. Please address Samsung's expert, Dr. Watts', admission that,
under Samsung's broad interpretation of ``accumulatively averaging'' as
encompassing all types of averaging, the limitation could read on
averaging operations that are not useful for the process control
procedure disclosed in the `065 patent. See Watts, Tr. 861:16-862:3.
3. With respect to the claim construction of the ``working
conditions'' limitation, please address the following questions:
a. Should the ``process parameter values'' recited in claim 11 be
read into claim 8?
b. How does the meaning of the phrase ``according to'' in col. 5,
ln. 46 of the `065 specification inform the interpretation of the
phrase ``based on'' recited in claim 8?
c. Are there any specific examples available from the evidence of
record that may shed light on when a process parameter variable that is
not specifically a machine setting may be used in a semiconductor
manufacturing process as disclosed in the `065 patent? In considering
this question, please also address how such a parameter might then be
converted to the proper units or axis for a particular piece of
processing equipment.
4. Please address in depth whether the particular type of averaging
used in Spansion's accused process satisfies the ``accumulatively
averaging'' limitation under the doctrine of equivalents.
[[Page 25709]]
5. Please address whether claim 8 satisfies the written description
requirement if the claim limitation ``extracting an optimal working
condition by accumulatively averaging'' is limited to Equation (1)
disclosed in the `065 patent, where Equation (1) may represent to one
of ordinary skill in the art a moving average or a weighted or
unweighted average.
6. Please address whether claims 1, 8, and 12 of the `065 patent
are indefinite if the ``accumulatively averaging'' limitation is
construed to include a moving average or a weighted or unweighted
average.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent(s) being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or likely to do so.
For background, see In the Matter of Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843
(December 1994) (Commission Opinion).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove the Commission's action. See Presidential Memorandum of
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission and prescribed by the
Secretary of the Treasury. The Commission is therefore interested in
receiving submissions concerning the amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues identified in this notice.
Parties to the investigation, interested government agencies, and any
other interested parties are encouraged to file written submissions on
the issues of remedy, the public interest, and bonding. Such
submissions should address the recommended determination by the ALJ on
remedy and bonding.
Complainants and the IA are also requested to submit proposed
remedial orders for the Commission's consideration. Complainants are
also requested to state the dates that the patents expire and the HTSUS
numbers under which the accused products are imported. The written
submissions and proposed remedial orders must be filed no later than
close of business on Monday, May 16, 2011. Reply submissions must be
filed no later than the close of business on Monday, May 23, 2011. No
further submissions on these issues will be permitted unless otherwise
ordered by the Commission.
Persons filing written submissions must file the original document
and 12 true copies thereof on or before the deadlines stated above with
the Office of the Secretary. Any person desiring to submit a document
to the Commission in confidence must request confidential treatment
unless the information has already been granted such treatment during
the proceedings. All such requests should be directed to the Secretary
of the Commission and must include a full statement of the reasons why
the Commission should grant such treatment. See 19 CFR 210.6. Documents
for which confidential treatment by the Commission is sought will be
treated accordingly. All nonconfidential written submissions will be
available for public inspection at the Office of the Secretary.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in sections 210.42-46 and 210.50 of the Commission's Rules of Practice
and Procedure (19 CFR 210.42-46 and 210.50).
Issued: April 29, 2011.
By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2011-10946 Filed 5-4-11; 8:45 am]
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