[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Notices]
[Pages 28809-28810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12183]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-700]
In the Matter of Certain Mems Devices and Products Containing
Same; Notice of Commission Decision to Affirm-In-Part and Reverse-In-
Part a Final Initial Determination Finding a Violation of Section 337;
Issuance of a Limited Exclusion Order; and Termination of the
Investigation
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 affirm-in-part and reverse-in-part a final
initial determination (``ID'') of the presiding administrative law
judge (``ALJ'') finding a violation of section 337 by respondents in
the above-captioned investigation, and has issued a limited exclusion
order directed against products of respondents Knowles Electronics LLC
(``Knowles'') of Itasca, Illinois and Mouser Electronics, Inc.
(``Mouser'') of Mansfield, Texas.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-5468. 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 this investigation
on January 5, 2010, based on a complaint filed on December 1, 2009, by
Analog Devices, Inc. (``Analog Devices'') of Norwood, Massachusetts. 75
FR 449-50 (January 5, 2010). The complaint, as supplemented, alleged
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, in the importation into the United States, the sale for
importation, and the sale within
[[Page 28810]]
the United States after importation of certain microelectromechanical
systems (``MEMS'') devices and products containing the same by reason
of infringement of certain claims of U.S. Patent Nos. 7,220,614 (``the
`614 patent'') and 7,364,942 (``the `942 patent''). The complaint
further alleged that an industry in the United States exists as
required by subsection (a)(2) of section 337. The complaint named as
respondents Knowles and Mouser.
On December 23, 2010, the ALJ issued his final ID finding a
violation of section 337 by respondents as to the `942 patent only, and
issued his recommended determinations on remedy and bonding. On January
18, 2011, respondents, Analog Devices, and the Commission investigative
attorney (``IA'') each filed a petition for review of the final ID, and
each party filed a response on January 27, 2011.
On March 7, 2011, the Commission determined to review: (1) The
ALJ's construction of the claim term ``oven'' relating to both the `614
and `942 patents; (2) the ALJ's construction of the claim term
``sawing'' relating to both the `614 and `942 patents; (3) the ALJ's
determination that the accused process does not infringe, either
literally or under the doctrine of equivalents, claims 12, 15, 31-32,
34-35, and 38-39 of the `614 patent or claim 1 of the `942 patent; (4)
the ALJ's finding that U.S. Patent No. 5,597,767 (``the `767 patent'')
does not incorporate by reference U.S. Patent Nos. 5,331,454 (``the
`454 patent'') and 5,512,374 (``the `374 patent''); (5) the ALJ's
finding that claims 2-6 and 8 are infringed by the accused process; (6)
the ALJ's findings that claims 34-35 and 38-39 of the `614 patent, and
claims 2-6 and 8 of the `942 patent, are not anticipated, under 35
U.S.C. 102(a), by the `767 patent or the `374 patent; (7) the ALJ's
findings that claims 34-35 and 38-39 of the `614 patent are not
obvious, under 35 U.S.C. 103, in view of the `767 patent and the Sakata
et al. (``Sakata'') prior art reference; and (8) the ALJ's finding that
the technical prong of the domestic industry requirement is satisfied
as to both the `614 and `942 patents. The determinations made in the
final ID that were not reviewed became final determinations of the
Commission by operation of rule. See 19 U.S.C. 210.42(h).
The Commission requested the parties to respond to certain
questions concerning the issues under review and requested written
submissions on the issues of remedy, the public interest, and bonding
from the parties and interested non-parties. 74 FR 13433-34 (March 11,
2011).
On March 18 and March 25, 2011, respectively, complainant Analog
Devices, respondents, and the IA each filed a brief and a reply brief
on the issues for which the Commission requested written submissions.
Also, on March 21, 2001, respondents filed a motion for leave to file a
corrected submission that clarified that the March 18, 2011 submission
was filed on behalf of both Knowles and Mouser. On March 29, 2011,
respondents filed a motion for leave to file a corrected submission
that strikes a portion of their initial brief. On March 31, 2011,
respondents filed notice of their withdrawal of their March 29, 2011
motion. The Commission has determined to grant respondents' remaining
motion of March 21, 2011.
Having reviewed the record in this investigation, including the
final ID and the parties' written submissions, the Commission has
determined to affirm-in-part and reverse-in-part the ID's findings
under review. Particularly, the Commission has reversed the ALJ's
finding and has determined that the `767 patent incorporates by
reference the `374 and `454 patents.
The Commission has affirmed all other issues under review including
the following: (1) The ALJ's construction of the claim term ``oven''
relating to both the `614 and `942 patents; (2) the ALJ's construction
of the claim term ``sawing'' relating to both the `614 and `942
patents; (3) the ALJ's determination that the accused process does not
infringe, either literally or under the doctrine of equivalents, claims
12, 15, 31-32, 34-35, and 38-39 of the `614 patent or claim 1 of the
`942 patent; (4) the ALJ's finding that claims 2-6 and 8 of the `942
patent are infringed by the accused process; (5) the ALJ's findings
that claims 34-35 and 38-39 of the `614 patent, and claims 2-6 and 8 of
the `942 patent, are not anticipated, under 35 U.S.C. 102(a), by the
`767 patent or the `374 patent; (6) the ALJ's findings that claims 34-
35 and 38-39 of the `614 patent are not obvious, under 35 U.S.C. 103,
in view of the `767 patent and Sakata; and (7) the ALJ's finding that
Analog Devices satisfies the technical prong of the domestic industry
requirement with respect to the `614 and `942 patents, based on his
finding that respondents' argument based on NTP, Inc. v. Research In
Motion, Ltd., 418 F.3d 1282, 1313-1321 (Fed. Cir. 2005), is waived. The
Commission has taken no position on the ALJ's finding that the domestic
industry is satisfied even if respondents' argument based on NTP is not
waived. These actions result in a finding of a violation of section 337
with respect to claims 2-6 and 8 of the `942 patent.
Further, the Commission has made its determination on the issues of
remedy, the public interest, and bonding. The Commission has determined
that the appropriate form of relief is a limited exclusion order
prohibiting the unlicensed entry of MEMS devices and products
containing the same that infringe claims 2-6 and 8 of the `942 patent
that are manufactured abroad by or on behalf of, or are imported by or
on behalf of, Knowles or Mouser, or any of their affiliated companies,
parents, subsidiaries, licensees, contractors, or other related
business entities, or successors or assigns.
The Commission further determined that the public interest factors
enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude
issuance of the limited exclusion order. Finally, the Commission
determined that no bond is required to permit temporary importation
during the period of Presidential review (19 U.S.C. 1337(j)). The
Commission's order and opinion were delivered to the President and to
the United States Trade Representative on the day of their issuance.
The Commission has terminated this investigation. 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, 210.45, and 210.50 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42, 210.45, 210.50).
By order of the Commission.
Issued: May 10, 2011.
James R. Holbein,
Acting Secretary to the Commission.
[FR Doc. 2011-12183 Filed 5-17-11; 8:45 am]
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