[Federal Register Volume 77, Number 223 (Monday, November 19, 2012)]
[Notices]
[Pages 69499-69501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28064]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-804]
Certain LED Photographic Lighting Devices and Components Thereof;
Notice of the Commission's Determination To Review in Part the Final
Initial Determination
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 final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on September 7, 2012, finding a violation of section 337 of
the Tariff Act of 1930, 19 U.S.C. 1337, in this investigation.
FOR FURTHER INFORMATION CONTACT: Amanda S. Pitcher, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-2737. The public version of
the complaint can be accessed on the Commission's electronic docket
(EDIS) at http://edis.usitc.gov, and 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 (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 September 7, 2011, based on a complaint filed by Litepanels, Inc.
and Litepanels, Ltd. (collectively, ``Litepanels''). 76 FR 55416 (Sept.
7, 2011). The complaint 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 the United
States after importation of certain LED photographic lighting devices
and components thereof that infringe certain claims of U.S. Patent Nos.
7,429,117 (terminated from the investigation); 7,510,290 (terminated
from the investigation); 7,972,022 (``the '022 patent''); 7,318,652
(``the '652 patent''); and 6,948,823 (``the '823 patent''). The Notice
of Institution named respondents Flolight, LLC. of Campbell,
California; Prompter People, Inc. of Campbell, California; IKAN
Corporation of Houston, Texas; Advanced Business Computer Services, LLC
d/b/a Cool Lights, USA of Reno, Nevada; Elation Lighting, Inc. of Los
Angeles, California; Fotodiox, Inc. of Waukegan, Illinois; Fuzhou F&V
Photographic Equipment Co., Ltd. of Fujian, China; Yuyao Lishuai Photo-
Facility Co., Ltd. of Zhejiang Province, China; Yuyao Fotodiox Photo
Equipment Co., Ltd. of Zhejiang Province, China; Shantou Nanguang
Photographic Equipment Co., Ltd. of Guangdong Province, China; Visio
Light, Inc. of Taipei, Taiwan; Tianjin Wuqing Huanyu Film and TV
Equipment Factory of Tianjin, China; Stellar Lighting Systems of Los
Angeles, California; and Yuyao Lily Collection Co., Ltd. of Yuyao,
China. The Commission Investigative Attorney (``IA'') of the Office of
Unfair Import Investigations also participated in this investigation.
On September 7, 2012, the ALJ issued the subject final ID finding a
violation of section 337. The ALJ held that a violation occurred in the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain LED
photographic lighting devices and components thereof that infringe one
or more of claims 1, 57-58, and 60 of the '022 patent; claims 1, 2, 5,
16, 18, 19, 25 and 27 of the '652 patent; and claim 19 of the '823
patent. ID at ii. The ALJ further held that no violation of section 337
occurred in the importation into the United States, the sale for
importation, or the sale within the United States after importation of
certain LED photographic lighting devices and components thereof that
infringe claims 17 and 28 of the '823 patent because claims 17 and 28
are anticipated. Id. at ii, 81.
[[Page 69500]]
Litepanels petitions for review of the ALJ's construction of the
preamble of claim 17 of the '823 patent and asserts that the ALJ
incorrectly found that independent claim 17 and dependent claim 28 of
the '823 patent were invalid based on his incorrect construction. The
IA petitioned for review of the ALJ's finding that claims 17, 19 and 28
of the '823 patent are infringed based on the construction of the term
``an integrated power source'' of independent claim 17. Respondents
petitioned for review of most of the ALJ's invalidity findings
(including public use, and obviousness), the construction of ``focusing
element'' of claim 1 of the '652 patent, and the exclusion of claim
charts.
The Commission has determined to review the ID in part. The
Commission has determined to review (1) the ALJ's construction of the
preamble of the asserted independent claims of the '652 patent, the
'823 patent and the '022 patent; (2) the ALJ's findings of
infringement; (3) the ALJ's findings of obviousness and anticipation;
(4) the ALJ's construction of ``an integrated power source'' of claim
17 of the '823 patent; and (5) the ALJ's findings on the technical
prong of domestic industry. The Commission has determined not to review
the remainder of 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) If the Commission were to determine that the preambles of the
asserted independent claims of the '652 patent, the '823 patent and the
'022 patent are limitations and should be interpreted based on their
plain and ordinary meaning (see ID at 44), what impact, if any, does
this have on the ALJ's findings regarding anticipation and obviousness
for the asserted patents? Please cite to record evidence that supports
your position.
(2) If the Commission were to determine that the preambles of the
asserted independent claims of the '652 patent, the '823 patent and the
'022 patent are limitations and should be interpreted based on their
plain and ordinary meaning (see ID at 44), do the accused products and
domestic industry products meet the preamble limitation of each of the
asserted independent claims? Please cite to record evidence to support
your position. Have the Respondents waived the ability to challenge a
finding that the preambles of the asserted independent claims,
interpreted based on their plain and ordinary meaning, are met by the
accused products?
In connection with the final disposition of this investigation, the
Commission may issue an order that could result in the exclusion of the
subject articles from entry into the United States. Accordingly, the
Commission is interested in receiving written submissions that address
the form of remedy, if any, that should be ordered. The Commission is
particularly interested in responses to the following questions:
(1) Please discuss the technical and qualitative interchangeability
of Litepanels and its licensees' products with the products that would
be excluded under a general exclusion order. Please discuss the
evidence that supports your position.
(2) Discuss whether Litepanels and its licensees have sufficient
capability to meet the demand for any products that would be excluded
under a general exclusion order. Please discuss the evidence that
supports your position, including evidence regarding current
manufacturing capacity and product interchangeability.
(3) What lead time would be required for existing manufacturers to
modify their allegedly infringing products to be noninfringing? Please
discuss the evidence that supports your position.
(4) Please discuss specific evidence pertaining to any specialized
requirements of the film, video, photographic industries, or any other
industries, that cannot be met by the products of Litepanels or its
licensees, but are only met by the products that would be excluded
under a general exclusion order.
(5) Please provide specific evidence regarding the impact, if any,
of a general exclusion order on public health and welfare, competitive
conditions in the United States economy, the production of like or
directly competitive articles in the United States, and United States
consumers.
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 persons are encouraged to file written submissions on
the issues of remedy, the public interest, and bonding, as well as
respond to the questions posed herein relating to remedy and the public
interest. Such submissions should address the recommended determination
by the ALJ on remedy and bonding. Complainant and IA are also requested
to submit proposed remedial orders for the Commission's consideration.
Complainant is also requested to state the dates that the '853,
'022 and '652 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
Wednesday, November 28, 2012. Reply submissions must be filed no later
than the close of business on Wednesday, December 5, 2012. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to section
[[Page 69501]]
210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR
210.4(f)). Submissions should refer to the investigation number (``Inv.
No. 337-TA-804'') in a prominent place on the cover page and/or the
first page. (See Handbook for Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions regarding filing should
contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted non-confidential version of the document must also be filed
simultaneously with the any confidential filing. All non-confidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
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: November 13, 2012.
By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-28064 Filed 11-16-12; 8:45 am]
BILLING CODE 7020-02-P