[Federal Register Volume 77, Number 227 (Monday, November 26, 2012)]
[Notices]
[Pages 70464-70466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28509]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-794]
Certain Electronic Devices, Including Wireless Communication
Devices, Portable Music and Data Processing Devices, and Tablet
Computers; Notice of Commission Determination To Review the Final
Initial Determination; Schedule for Filing Written Submissions on the
Issues Under Review and on Remedy, Public Interest, and Bonding
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 the final initial determination
issued by the presiding administrative law judge in the above-captioned
investigation on September 14, 2012. The Commission requests certain
briefing from the parties on the issues under review, as indicated in
this notice. The Commission also requests briefing from the parties and
the public on the issues of remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Clark S. Cheney, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202-205-2661. 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 (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 August 1, 2011, based on a complaint filed by Samsung Electronics
Co., Ltd. of Korea and Samsung Telecommunications America, LLC of
Richardson, Texas (collectively, ``Samsung''). 76 FR 45860 (Aug. 1,
2011). The complaint 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 electronic devices, including
wireless communication devices, portable music and data processing
devices, and tablet computers, by reason of infringement of various
patents, including U.S. Patent Nos. 7,706,348 (``the '348 patent''),
7,486,644 (``the '644 patent''), 7,450,114 (``the '114 patent''), and
6,771,980 (``the '980 patent''). The notice of investigation names
Apple Inc. of Cupertino, California, as the only respondent.
On September 14, 2012, the presiding administrative law judge
(``ALJ'') issued his final initial determination (``ID'') in this
investigation finding no violation of section 337. The ALJ determined
that the '348, '644, and '980 patents are valid but not infringed and
that the '114 patent is both invalid and not infringed. The ALJ further
determined that the economic prong of the domestic industry requirement
is satisfied for all four patents at issue, but that the technical
prong is not satisfied for any of the asserted patents.
On October 1, 2012, complainant Samsung and the Commission
investigative attorney filed petitions for review of the ID, while
Apple filed a contingent petition for review.
Having examined the record of this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review the ALJ's determination of no violation in its
entirety.
In connection with the final disposition of this investigation, the
Commission may issue an order that results in the exclusion of the
subject articles from entry into the United
[[Page 70465]]
States. See 19 U.S.C. 1337(d). 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 Certain Devices for Connecting Computers via Telephone Lines, lnv.
No. 337TA360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December 1994).
When 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.
When 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.
Parties to the investigation, interested government agencies, the
Office of Unfair Import Investigations (``OUII''), 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.
The Commission further encourages briefing from the parties to the
investigation, interested government agencies, OUII, and any other
interested parties on the following topics:
1. Does the mere existence of a FRAND undertaking with respect to a
particular patent preclude issuance of an exclusion order based on
infringement of that patent? Please discuss theories in law, equity,
and the public interest, and identify which (if any) of the 337(d)(1)
public interest factors preclude issuance of such an order.
2. Where a patent owner has offered to license a patent to an
accused infringer, what framework should be used for determining
whether the offer complies with a FRAND undertaking? How would a
rejection of the offer by an accused infringer influence the analysis,
if at all?
3. Would there be substantial cost or delay to design around the
technology covered by the '348 and '644 patents asserted in this
investigation? Could such a design-around still comply with the
relevant ETSI standard?
4. What portion of the accused devices is allegedly covered by the
asserted claims of each of the '348 and '644 patents? Do the patents
cover relatively minor features of the accused devices?
In addition to the foregoing, the parties to the investigation are
requested to brief their positions on the following subset of the
issues under review, with reference to the applicable law and the
evidentiary record:
5. What evidence in the record explains the legal significance of
Samsung's FRAND undertakings under French law?
6. [ ]
7. [ ]
8. With respect to the asserted claims of the '348 patent, what
record evidence shows that a person of ordinary skill in the art would
understand the phrase ``10 bit TFCI information'' to allow or preclude
the use of padding bits? What is the difference between the ``10 bit
TFCI information'' in the portion of Table 1a shown in columns 13 and
14 of '348 patent and the TFCI information with padding zeroes
allegedly used in the alleged domestic industry devices? Is the
patent's discussion of padding zeroes at col. 3, lines 27-34 of any
relevance? What consequence would construing ``10 bit TFCI
information'' to allow padding bits have on the issues of infringement,
validity, and the technical prong of the domestic industry requirement?
9. With respect to the asserted claims of the '348 patent, what
claim language, if any, limits the claim to the use of a look-up table
and precludes the claim from covering the embodiment of the invention
shown in Figures 8 and 14 of the '348 patent?
10. With respect to asserted claims 82-84 of the '348 patent,
identify any support in the patent specification or the record
generally for construing the term ``puncturing'' in asserted claims 82-
84 to encompass ``excluding'' bits (see, e.g., '348 patent at 32:10-
17). What consequence would such a construction have on the issues of
infringement, validity, and the technical prong of the domestic
industry requirement?
11. With respect to the asserted claims of the '644 patent, what is
the proper construction of ``extracting''? What variable, if any, in
the source code relied upon by Samsung to prove infringement and
domestic industry represents a ``60-bit rate-matched block'' that has
been extracted from a received signal?
12. With respect to the '980 patent, has Samsung waived all
infringement and domestic industry allegations except for those based
on claim 10? Identify by source code file name or other specific record
designation the precise ``dialing program'' that Samsung relies upon to
prove infringement and domestic industry with respect to claim 10. Also
identify, using record evidence, the conditions that trigger execution
of the ``dialing program'' in the relevant devices.
13. With respect to the '980 patent, if the Commission were to
construe ``dialing icon'' to require a ``pictorial element,'' what
record evidence demonstrates that Samsung's alleged domestic industry
products meet that limitation?
The parties have been invited to brief only the discrete issues
enumerated above, with reference to the applicable law and evidentiary
record. The parties are not to brief other issues on review, which are
adequately presented in the parties' existing filings.
Written Submissions: Written submissions and proposed remedial
orders in response to this notice must be filed no later than close of
business on December 3, 2012. Complainant and OUII are also requested
to submit proposed remedial orders for the Commission's consideration.
Complainant is also requested to state the dates that the patents
expire and the HTSUS numbers under which the accused products are
imported. Initial submissions by the parties are limited to 80 pages,
not including any attachments or exhibits related to discussion of the
public interest. Initial submissions by other members of the public are
limited to 50 pages, not including any attachments or exhibits related
to discussion of the public interest. Reply submissions must be filed
no later than the close of business December 10,
[[Page 70466]]
2012. All reply submissions are limited to 50 pages, not including any
attachments or exhibits related to discussion of the public interest.
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 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-794'') 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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
Issued: November 19, 2012.
By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-28509 Filed 11-23-12; 8:45 am]
BILLING CODE 7020-02-P