[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Notices]
[Pages 69762-69763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27884]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-720]
Limited Exclusion and Cease and Desist Orders; Terminations of
Investigations: Certain Biometric Scanning Devices, Components Thereof,
Associated Software, and Products Containing the Same
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 modify 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 Suprema, Inc. (``Suprema'') of
Gyeonggi, Korea and Mentalix, Inc. (``Mentalix'') of Plano, Texas, and
a cease and desist order directed against Mentalix.
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) 708-2310. 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 June 17, 2010 based on a complaint filed on May 11, 2010, by Cross
Match Technologies, Inc. (``Cross Match'') of Palm Beach Gardens,
Florida. 75 FR 34482-83. The complaint, as amended on May 26, 2010,
alleges 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 the United States after
importation of certain biometric scanning devices, components thereof,
associated software, and products containing the same by reason of
infringement of certain claims of U.S. Patent Nos. 5,900,993 (``the
'993 patent''); 7,203,344 (``the '344 patent''); 7,277,562 (``the '562
patent''); and 6,483,932 (``the '932 patent''). The complaint further
alleges that an industry in the United States exists as required by
subsection (a)(2) of section 337, and names two respondents, Suprema
and Mentalix.
On November 10, 2010, the Commission issued notice of its
determination not to review the ALJ's ID granting Cross Match's motion
to amend the complaint by adding allegations of infringement as to
claims 5-6, 12, and 30 of the '562 patent, and claims 7, 15, 19, and 45
of the '44 patent. On December 27, 2010, the Commission issued notice
of its determination not to review the ALJ's ID granting Cross Match's
motion to terminate the investigation as to claims 6-8, 13-15, and 19-
21 of the '932 patent (eliminating this patent from the investigation);
claims 13 and 16 of the '993 patent; claims 4, 15, 30, 32, and 44 of
the '344 patent; and claim 2 of the '562 patent based on withdrawal of
these claims from the complaint. On March 18, 2011, the Commission
issued notice of its determination not to review the ALJ's ID granting
Cross Match's motion for summary determination that it satisfies the
economic prong of the domestic industry requirement.
On June 17, 2011, the ALJ issued his final ID finding a violation
of section 337 by reason of infringement of one or more of claims 10,
12, and 15 of the '993 patent by the imported devices. The ALJ also
found a violation of section 337 by reason of infringement of claim 19
of the '344 patent. The ALJ found no violation of section 337 with
respect to the '562 patent. He also issued his recommendation on remedy
and bonding during the period of Presidential review. On July 5, 2011,
Cross Match, respondents, and the Commission investigative attorney
(``IA'') each filed a petition for review of the final ID; and on July
13, 2011, each filed a response to the opposing petitions.
On August 18, 2011, the Commission determined to review the ALJ's
finding of a violation of section 337 based on infringement of claim 19
of the '344
[[Page 69763]]
patent. 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 briefing on 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. 76 FR 52970-71 (August 24, 2011).
On August 30 and September 8, 2011, respectively, complainant Cross
Match, respondents, and the IA each filed a brief and a reply brief on
the issues for which the Commission requested written submissions.
Having reviewed the record in this investigation, including the
final ID and the parties' written submissions, the Commission has
determined to: (1) Modify-in-part the final ID and issue an Opinion
supplementing the ID's analysis concerning its finding that the accused
scanners infringe claim 19 of the '344 patent; and (2) affirm all other
findings of the ID underlying the issue under review. Specifically, the
Commission has determined that respondent Mentalix directly infringes
claim 19 of the '344 patent, and that respondent Suprema indirectly
infringes claim 19, via induced infringement, but does not infringe
claim 19 via contributory infringement. These actions result in a
finding of a violation of section 337 with respect to claim 19 of the
'344 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 both: (1) A limited exclusion
order prohibiting the unlicensed entry of biometric scanning devices,
components thereof, associated software, and products containing the
same that infringe one or more of claims 10, 12, and 15 of the '993
patent and claim 19 of the '344 patent where the infringing scanning
devices are manufactured abroad by or on behalf of, or are imported by
or on behalf of, Suprema or Mentalix, or any of their affiliated
companies, parents, subsidiaries, licensees, contractors, or other
related business entities, or successors or assigns; and (2) a cease
and desist order prohibiting Mentalix, Inc. from conducting any of the
following activities in the United States: importing, selling,
marketing, advertising, distributing, offering for sale, transferring
(except for exportation), and soliciting U.S. agents or distributors
for, biometric scanning devices, components thereof, associated
software, and products containing the same that infringe one or more of
claims 10, 12, and 15 of the '993 patent and claim 19 of the '344
patent.
The Commission further determined that the public interest factors
enumerated in sections 337(d)(1), (f)(1) (19 U.S.C. 1337(d)(1), (f)(1))
do not preclude issuance of the limited exclusion or cease and desist
order. Finally, the Commission determined that a bond of 100 percent of
the entered value of the covered products is required to permit
temporary importation during the period of Presidential review (19
U.S.C. 1337(j)). The Commission's orders 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: October 24, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-27884 Filed 11-8-11; 8:45 am]
BILLING CODE 7020-02-P