[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Notices]
[Pages 74220-74221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30042]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-807]
Certain Digital Photo Frames and Image Display Devices and
Components Thereof; Commission Determination Not To Review an Initial
Determination Extending the Target Date and Finding the Remaining
Respondent Pandigital, Inc. in Default and in Violation of Section 337;
and Request for Submissions
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined not to review an initial determination
(``ID'') (Order No. 48) of the presiding administrative law judge
(``ALJ''): (1) Extending the target date for completion of the above-
captioned investigation by nine days to March 7, 2013; and (2) finding
the remaining respondent Pandigital, Inc. (``Pandigital'') of Dublin,
California in default and in violation of section 337. The Commission
also is requesting written submissions including submissions on remedy,
the public interest, and bonding.
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 September 27, 2011, based on a complaint filed by Technical
Properties Limited, LLC (``TPL'') of Cupertino, California. 76 FR
59737-38. The complaint alleges a violation 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 digital photo frames and
image display devices and components thereof by reason of infringement
of certain claims of U.S. Patent Nos. 6,976,623 (``the '623 patent'');
7,162,549; 7,295,443; and 7,522,424. The complaint further alleges the
existence of a domestic industry. The Commission's notice of
investigation named twenty respondents including Nextar Inc. of La
Verne, California; WinAccord Ltd. of Taipei, Taiwan; and WinAccord
U.S.A., Inc. of San Jose, California (collectively, ``the WinAccord
respondents''); Aiptek International Inc. (``Aiptek'') of Hsinchu,
Taiwan; and Pandigital. All other respondents have been terminated from
the investigation by consent order stipulation or settlement agreement.
The '623 patent was terminated from the investigation with respect to
Pandigital by consent order stipulation. The complaint and notice of
investigation were served on all respondents including Aiptek and the
WinAccord respondents on September 22, 2011. See Notice of
Investigation, Certificate of Service (Sept. 22, 2011) (EDIS Document
459720). No Commission investigative attorney is participating in the
investigation.
On December 6 and 22, 2011, respectively, the ALJ issued IDs
finding the WinAccord respondents and Aiptek in default, pursuant to 19
CFR 210.13 and 210.16, because these respondents did not respond to the
complaint and notice of investigation, or to Order Nos. 13 and/or 15 to
show cause. On January 3 and 9, 2012, respectively, the Commission
determined not to review the IDs finding the WinAccord respondents and
Aiptek in default.
On March 8, 2012, complainant TPL filed a declaration requesting
immediate relief against the defaulting respondent Aiptek under
Commission rule 210.16(c)(1), 19 CFR 210.16(c)(1), which it later
withdrew.
On October 9, 2012, the ALJ issued Order No. 47 to Pandigital show
cause why it should not be found in default and in violation of section
337 pursuant to 19 CFR 210.17 because respondent did not file a pre-
hearing statement and brief as required by the ALJ's Procedural
Schedule. As of November 7, 2012, Pandigital had not responded to Order
No. 47 and the ALJ issued the subject ID finding Pandigital in default
and in violation of section 337. The ID also extended the target date
of the investigation by nine days from February 26, 2013 to March 7,
2013. The ID also contained the ALJ's
[[Page 74221]]
recommended determination on remedy. Specifically, the ALJ recommended
issuance of a limited exclusion order, cease and desist order, and a
bond in the amount of 100 percent of the covered products during the
period of Presidential review with respect to Pandigital. No party
petitioned for review of the ID.
The Commission has determined not to review the subject ID. The
Commission notes that in the subject ID, the ALJ retroactively extended
the target date by nine days, to account for the delay in the issuance
of his final ID finding Pandigital in default and in violation of
section 337. The delay was caused by TPL's failure to properly serve
its motion seeking default against Pandigital. Extension of the target
date in this circumstance was not necessary because the Commission did
not require additional time to complete this investigation. In any
event, we note that an ID extending the target date must be issued in
advance of the final ID, rather than retroactively.
Section 337(g)(1) (19 U.S.C. 1337(g)(1)) and Commission Rule
210.16(c) (19 CFR 210.16(c)) authorize the Commission to order limited
relief against respondents, such as Aiptek and the WinAccord
respondents, found in default for failure to respond to the complaint
and notice of investigation, unless after consideration of the public
interest factors, it finds that such relief should not issue. With
respect to Pandigital, 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. See 19 U.S.C. 337(d)(1). 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.
The Commission also requests additional briefing from TPL
addressing the following issues:
(1) Assuming TPL requests a cease and desist order (``CDO'')
against Aiptek, does the evidence support a finding that Aiptek
maintains a commercially significant inventory of accused products in
the United States or otherwise has significant domestic ties sufficient
to warrant imposition of a CDO as to this foreign respondent? See
Certain Agricultural Tractors, Lawn Tractors, Riding Lawnmowers, and
Components Thereof, Inv. No. 337-TA-486, Comm'n Op. at 17 (Aug. 19,
2003).
(2) In its previous briefing of March 8 and April 23, 2012, TPL
previously asserted that section 337(j)(3) does not permit importation
under bond with respect to a defaulting respondent under section
337(g). Does TPL maintain that position?
(3) What evidence does Complainant rely upon in support of a bond
amount for Aiptek, Pandigital, and the WinAccord respondents? In your
answer, please address the applicability of Order Nos. 9, 12, 16, 18-
20, 23, and 28.
Written Submissions: 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 as well as issues
concerning whether respondents found in default under section 337(g)
may import under bond during the period of Presidential review.
Complainant is also requested to submit proposed remedial orders
for the Commission's consideration. Complainant is also requested to
state the dates that the asserted 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 December 21, 2012. Reply submissions must be filed no later
than the close of business on December 28, 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 Commission rule 210.4(f), 19 CFR 210.4(f). Submissions
should refer to the investigation number (``Inv. No. 337-TA-807'') 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).
Any person desiring to submit a document (or portion thereof) 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 section 201.6 of the
Commission's Rules of Practice and Procedure, 19 CFR 201.6. 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 210.17, 210.42-46, and 210.50 of the Commission's Rules of
Practice and Procedure (19 CFR 210.17, 210.42-46, and 210.50).
By order of the Commission.
Issued: December 7, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-30042 Filed 12-12-12; 8:45 am]
BILLING CODE 7020-02-P