[Federal Register Volume 78, Number 53 (Tuesday, March 19, 2013)]
[Notices]
[Pages 16865-16867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06252]
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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; Investigations: Terminations, Modifications and Rulings
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 extend the target date for completion of
the investigation until May 31, 2013. The Commission requests
additional written submissions from the parties and from the public on
the issues indicated in this notice.
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 Seoul, Republic 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,
[[Page 16866]]
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 (``Apple''), 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 November 19, 2012, the Commission determined to review the ID in
its entirety and issued a notice requesting written submissions from
the parties and from the public on certain patent issues, on the
assertion of FRAND-encumbered patents at the Commission, and on the
issues of remedy, the public interest, and bonding. 77 FR 70464. The
Commission received written submissions from the parties and from the
public in response to the notice.
The Commission has determined to seek additional information on the
potential effect on the public interest, as identified in 19 U.S.C.
1337(d)(1) and (f)(1), if the Commission were to order remedies against
articles alleged by Samsung to infringe claims 75, 76, and 82-84 of the
'348 patent. (A dissenting memorandum from Commissioner Aranoff can be
found on EDIS under Inv. No. 337-TA-794.) Parties to the investigation,
interested government agencies, the Office of Unfair Import
Investigations, and any other interested persons are encouraged to file
written submissions on the following issues, with reference to the
applicable law, the existing evidentiary record, and if necessary,
additional sworn testimony or expert declarations:
1. How would remedial orders barring the entry and further
distribution of the Apple articles alleged to infringe the asserted
claims of the '348 patent affect the public interest, as identified in
19 U.S.C. 1337(d)(1) and (f)(1)? The Commission is particularly
interested in the effect on the public interest with respect to (a) the
percentage of the total number of imported mobile telephone handsets
that would be affected by such orders, (b) the percentage of the total
number of imported cellular-network-enabled tablets that would be
affected by such orders, and (c) the qualitative impact of exclusion of
such handsets and tablets. The Commission is also interested in any
other relevant market information bearing on the four statutory public
interest factors. In addressing these issues, the Commission requests
that submitters avoid discussing issues related to standards-setting
organizations, as the record concerning those issues has been well
developed.
2. What third, fourth, and later generation products (if any) are
currently available in the U.S. market that are authorized by Samsung
to utilize the technology covered by the asserted claims of the '348
patent? Are these products acceptable substitutes for the accused
iPhones and iPads and are they widely viewed to be acceptable
substitutes for the accused iPhones and iPads?
3. In what ways, if any, should a remedy with respect to
infringement of the '348 patent be specifically tailored to avoid harm
to the public interest, as identified in 19 U.S.C. 1337(d)(1) and
(f)(1)? In addressing this issue, the Commission requests that
submitters avoid discussing issues related to standards-setting
organizations, as the record concerning those issues has been well
developed.
In addition to the foregoing, the parties to the investigation are
requested to brief their positions on the following issues, with
reference to the applicable law, the existing evidentiary record, and
if necessary, additional sworn testimony or expert declarations:
4. With respect to the '348 patent, Samsung's infringement case
before the Commission relied upon accused third and fourth generation
Apple products that operate on the AT&T wireless network. If the
Commission were to issue remedial orders covering articles covered by
the asserted claims of the '348 patent, would such an order cover (a)
Apple products that operate on other wireless networks in the United
States, and (b) later generation Apple products (e.g., iPhone 5, later
iPad versions)?
5. Please summarize the history to date of negotiations between
Samsung and Apple concerning any potential license to the '348 patent,
either alone or in conjunction with other patents. Please provide
copies of all written offers and counteroffers concerning a license
that would cover the '348 patent, whether made by Samsung or Apple.
6. Please summarize all licenses to the '348 patent granted by
Samsung to any entity. Please provide copies of, or cite to their
location in the record of this investigation, all agreements wherein
Samsung grants any entity a license to the '348 patent.
7. Samsung and Apple are each requested to submit specific
licensing terms for the '348 patent that each believes are fair,
reasonable, and non-discriminatory. Would Samsung's terms change if the
Commission were to enter remedial orders against Apple's products
accused in this investigation? If so, please explain whether such an
offer would be fair, reasonable, and non-discriminatory.
8. Which factors in Georgia-Pacific Corp. v. United States Plywood
Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970) are most relevant to
determining whether Samsung has offered to license the '348 patent to
Apple on fair, reasonable, and non-discriminatory terms? Please apply
any relevant Georgia-Pacific factors to Samsung's offer(s) to license
the '348 patent to Apple. This analysis should include a comparison of
Samsung's licensing offers to a hypothetical negotiation between the
parties prior to adoption of the '348 patent into the standard at issue
here. What other factors, if any, are relevant in determining whether
Samsung has made a fair, reasonable, and non-discriminatory offer?
The Commission has invited briefing on only the discrete issues
enumerated above. Other issues on review are adequately presented in
existing filings.
Written Submissions: Written submissions in response to this notice
must be filed no later than close of business on April 3, 2013. Initial
submissions, not including any attachments, expert declarations, or
exhibits, are limited to 50 pages for parties and 25 pages for non-
parties. Reply submissions must be filed no later than the close of
business on April 10, 2013. Reply submissions, not including any
attachments, expert declarations, or exhibits, are limited to 35 pages
for parties and 20 pages for non-parties. 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
[[Page 16867]]
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: March 13, 2013.
By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-06252 Filed 3-18-13; 8:45 am]
BILLING CODE 7020-02-P