[Federal Register Volume 78, Number 81 (Friday, April 26, 2013)]
[Notices]
[Pages 24775-24776]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09845]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-745]


Certain Wireless Communication Devices, Portable Music and Data 
Processing Devices, Computers and Components Thereof; Commission 
Decision Finding No Violation of Section 337 as to U.S. Patent No. 
6,246,862; Termination of Investigation With a Finding of No Violation

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 found no violation of 337 of the Tariff Act of 1930 in 
the above-captioned investigation with respect to U.S. Patent No. 
6,246,862 (``the '862 patent''). The investigation is terminated with a 
finding of no violation.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2301. 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 November 8, 2010, based on a complaint filed by Motorola Mobility, 
Inc. of Libertyville, Illinois (``Motorola''). 75 FR 68619-68620 (Nov. 
8, 2010). The complaint alleges violations of section 337 of the Tariff 
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain wireless 
communication devices, portable music and data processing devices, 
computers and components thereof by reason of

[[Page 24776]]

infringement of certain claims of U.S. Patent Nos. 6,272,333 (``the 
'333 patent''); 6,246,697 (``the '697 patent''); and 5,636,223 (``the 
'223 patent''), the '862 patent, U.S. Patent No. 5,359,317 (``the '317 
patent''), and U.S. Patent No. 7,751,826 (``the '826 patent''). The 
complaint further alleges the existence of a domestic industry. The 
Commission's notice of investigation named Apple Inc. of Cupertino, 
California (``Apple'') as respondent. The Office of Unfair Import 
Investigation (``OUII'') was named as a participating party, however, 
on July 29, 2011, OUII withdrew from further participation in the 
investigation. See Commission Investigative Staff's Notice of 
Nonparticipation (July 29, 2011). The Commission later partially 
terminated the investigation as to the '317 patent and the '826 patent. 
Notice (June 28, 2011); Notice (Jan 27, 2012).
    On April 24, 2012, the presiding administrative law judge (``ALJ'') 
issued his final initial determination (``Final ID''), finding a 
violation of section 337 as to the '697 patent and no violation of 
section 337 as to the '223 patent, the '333 patent, and the '862 
patent. On May 9, 2012, the ALJ issued a recommended determination on 
remedy and bonding.
    On June 25, 2012, the Commission determined to review the Final ID 
in part. 77 FR 38826-38829 (June 29, 2012). On August 24, 2012, the 
Commission found no violation with respect to the '333 patent, the '697 
patent, and the '223 patent. 77 FR 52759-52761 (Aug. 30, 2012). The 
Commission remanded the investigation to the ALJ with respect to the 
'862 patent upon reversing his finding that the patent is invalid as 
indefinite. Id.; see Order (Aug. 24, 2012). Specifically, the 
Commission instructed the ALJ to make findings regarding infringement, 
validity, and domestic industry concerning the '862 patent. The 
Commission's Order instructed the ALJ to set a new target as necessary 
to accommodate the remand proceedings. On October 1, 2012, the ALJ 
issued Order No. 36, setting the target date for completion of the 
remand proceedings as April 22, 2013. Order No. 36 (Oct. 1, 2012). On 
October 18, 2012, the Commission determined not to review the ID 
setting the new target date. Notice (Oct. 18, 2012).
    On December 18, 2012, the ALJ issued his final initial 
determination on remand (``Remand ID''), finding no violation of 
section 337 with respect to the '862 patent. In particular, the ALJ 
found that the relevant accused products infringe claim 1 of the '862 
patent literally and under the doctrine of equivalents, but that claim 
1 is invalid as anticipated by U.S. Patent No. 6,052,464 to Harris 
(``Harris '464''). The ALJ further found that claim 1 is not invalid 
for obviousness in light of Harris '464 in combination with the 
knowledge of one of ordinary skill in the art or in combination with 
U.S. Patent No. 5,894,298 to Hoeksma (``Hoeksma '298''). The ALJ also 
found that Motorola has satisfied the economic and technical prongs of 
the domestic industry requirement with respect to the '862 patent.
    On January 7, 2013, Motorola petitioned for review of the Remand 
ID's construction of the limitation ``a touch sensitive input device'' 
of claim 1 of the '862 patent and the Remand ID's finding that claim 1 
of the '862 patent is invalid as anticipated by Harris '464. Also on 
January 7, 2013, Apple filed a contingent petition for review of the 
Remand ID's findings that the relevant accused products infringe claim 
1 of the '862 patent literally and under the doctrine of equivalents.
    On February 19, 2013, the Commission determined to review the 
Remand ID in part. 78 FR 12785-12786 (Feb. 25, 2013). Specifically, the 
Commission determined to review the Remand ID's construction of the 
limitation ``touch sensitive input device'' in claim 1 of the '862 
patent. The Commission also determined to review the Remand ID's 
finding that the accused products literally infringe claim 1. The 
Commission further determined to review the Remand ID's finding that 
claim 1 of the '862 patent is anticipated and its finding that claim 1 
was not shown to be obvious. The Commission determined not to review 
the remaining issues in the Remand ID and adopted those findings. In 
connection with the question of whether claim 1 of the '862 patent is 
obvious, the Commission posed the following question to the parties:

    Does the evidence in the record support a finding that claim 1 
of the '862 patent is obvious in view of Harris '464 in combination 
with the knowledge of one of ordinary skill in the art or in 
combination with Hoeksma '298 where the evidence demonstrates that 
the existence of portable communication devices using ``touch 
sensitive input devices,'' including touch screens, were known in 
the art prior to the filing of the application leading to the '862 
patent and is disclosed in Hoeksma '298? In discussing this issue, 
please refer to the teachings of the references, the knowledge of 
one of ordinary skill in the art at the time of filing of the '862 
patent application, and the evidence in the record regarding the 
motivation to combine Harris '464 with the knowledge of one of 
ordinary skill in the art or with Hoeksma '298. Also, please address 
whether there are any secondary considerations that would prevent a 
finding of obviousness.

78 FR 12786.

    On March 8, 2013, Motorola and Apple filed initial submissions in 
response to the Commission's Notice of Review. On March 15, 2013, 
Motorola filed a response to Apple's opening brief. Also on March 15, 
2013, Apple filed a response to Motorola's opening brief.
    Having examined the record of this investigation, including the 
ALJ's Remand ID and the parties' submissions, the Commission has 
determined to terminate the investigation with a finding of no 
violation of section 337 with respect to the '862 patent. Specifically, 
the Commission construes the claim limitation ``touch sensitive input 
device'' in claim 1 of the '862 patent in accordance with its plain and 
ordinary meaning, which does not include any device that is actuated by 
physical force, such as a conventional pushbutton keypad. The 
Commission affirms the Remand ID's finding that the accused products 
literally infringe claim 1 of the '862 patent based on the finding that 
communication of the input signal is actually disabled when the 
proximity sensor is triggered in the accused products, but vacates and 
does not reach the Remand ID's finding that communication of the input 
signal is effectively disabled at the lower sampling rate.
    The Commission reverses the Remand ID's finding that Harris '464 
anticipates claim 1 of the '862 patent. The Commission further finds 
that Apple has shown by clear and convincing evidence that claim 1 of 
the '862 patent is obvious in view of Harris '464 in combination with 
the knowledge of one of ordinary skill in the art and in view of Harris 
'464 in combination with Hoeksma '298.
    The investigation is terminated. A Commission Opinion will issue 
shortly.
    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 210.45, .49 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.45, .49).

    Issued: April 22, 2013.

    By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-09845 Filed 4-25-13; 8:45 am]
BILLING CODE 7020-02-P