[Federal Register Volume 78, Number 175 (Tuesday, September 10, 2013)]
[Notices]
[Pages 55294-55296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21935]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-800]
Certain Wireless Devices With 3G Capabilities and Components
Thereof Commission Determination To Review the Final Initial
Determination Finding No Violation of Section 337 in Its Entirety
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 its entirety, the final initial
determination issued by the presiding administrative law judge
(``ALJ'') finding no violation of section 337 of the Tariff Act of
1930, 19 U.S.C. 1337, (``section 337'') in the above identified
investigation.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-3042. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for
[[Page 55295]]
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 August 31, 2011, based on a complaint filed by InterDigital
Communications, LLC of King of Prussia, Pennsylvania; InterDigital
Technology Corporation of Wilmington, Delaware; and IPR Licensing, Inc.
of Wilmington, Delaware (collectively, ``InterDigital''). 76 FR. 54252
(Aug. 31, 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 wireless devices with 3G
capabilities and components thereof by reason of infringement of
certain claims of United States Patent Nos. 7,349,540 (terminated from
the investigation); 7,502,406; 7,536,013; 7,616,970; 7,706,332;
7,706,830; and 7,970,127. The notice of investigation named the
following entities as respondents: Huawei Technologies Co., Ltd. of
Shenzhen, China; FutureWei Technologies, Inc. d/b/a Huawei,
Technologies (USA) of Plano, Texas; Nokia Corporation of Espoo,
Finland; Nokia Inc. of White Plains, New York; ZTE Corporation of
Shenzhen, China; and ZTE (USA) Inc. of Richardson, Texas (collectively,
``Respondents''). The complaint and notice of investigation were
subsequently amended to allege infringement of certain claims of United
States Patent No. 8,009,636 (the '636 patent) and to add the following
entities as respondents: LG Electronics, Inc. of Seoul Korea; LG
Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey; and LG
Electronics Mobilecomm U.S.A., Inc. of San Diego, California
(collectively, ``LG''). 76 FR 81527 (Dec. 28, 2011). The complaint and
notice of investigation were further amended to include Huawei Device
USA of Plano, Texas as a respondent. 77 FR 26788 (May 7, 2012).
InterDigital Communications, LLC subsequently moved for leave to
amend the Complaint and Notice of Investigation to reflect the fact
that it converted from a Pennsylvania limited liability company to a
Delaware corporation, and changed its name to InterDigital
Communications, Inc. The ALJ issued an ID granting the motion and the
Commission determined not to review. See Order No. 91 (Jan. 17, 2013);
Notice of Commission Determination Not to Review an Initial
Determination Granting Complainants' Motion for Leave to Amend the
Complaint and Notice of Investigation (Feb. 4, 2013).
On June 4, 2012, the ALJ granted a motion by LG under 19 CFR
210.21(a)(2) to terminate the investigation as to LG based on an
arbitration agreement. See Order No. 30 (June 4, 2012). The Commission
determined not to review. See Notice of Commission Determination Not to
Review an Initial Determination Terminating Certain Respondents From
the Investigation (July 6, 2012). InterDigital appealed LG's
termination from this investigation, and the Federal Circuit reversed
the Commission's determination. InterDigital Commc'ns, LLC v Int'l
Trade Comm'n, No. 2012-1628 (Fed. Cir. June 7, 2013).
On June 28, 2013, the ALJ issued his final ID, finding no violation
of section 337 by Respondents. Specifically, the ALJ found that the
Commission has subject matter jurisdiction, in rem jurisdiction over
the accused products, and in personam jurisdiction over the
respondents. The ALJ also found that the importation requirement of
section 337 (19 U.S.C. 1337(a)(1)(B)) has been satisfied. The ALJ,
however, found that the accused products do not infringe asserted
claims 1-3 and 5 of the '830 patent; asserted claims 1, 2, 4, and 6-8
of the '636 patent; asserted claims 6, 13, 20, 26, and 29 of the '406
patent; asserted claims 2-4, 7-11, 14, 22-24, and 27 of the '332
patent; asserted claims 1-7 of the '127 patent; asserted claims 16-19
of the '013 patent; or asserted claims 10-18 of the '970 patent. The
ALJ found that the accused products meet each limitation of claims 1-9
of the '970 patent but found that all the asserted claims, claims 1-18,
of the '970 patent are invalid in view of the prior art. The ALJ also
found that asserted claims 1-7 of the '127 patent and asserted claims
16-19 of the '013 patent are invalid in view of the prior art. The ALJ,
however, found that Respondents failed to establish by clear and
convincing evidence that the asserted claims of the '830, '636, '406 or
'332 patents were invalid in light of the cited prior art references.
The ALJ also found that the Respondents failed to prove that they hold
licenses under the asserted patents and failed to prevail on their
equitable/FRAND defenses. The ALJ further found that InterDigital
established the existence of a domestic industry.
On July 15, 2013, InterDigital filed a petition for review of the
ID. That same day, the Commission Investigative Attorney and
Respondents filed separate petitions for review. Respondents also filed
a contingent petition for review. On July 23, 2013, the parties filed
responses to the petitions and contingent petition for review.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in its entirety.
In connection with its review, the Commission is particularly
interested in responses to the following question:
Please discuss, in light of the statutory language, legislative
history, the Commission's prior decisions, and relevant court
decisions, including InterDigital Commc'ns, LLC v. Int'l Trade
Comm'n, 690 F.3d 1318 (Fed. Cir. 2012), and 707 F.3d 1295 (Fed. Cir.
2013), whether establishing a domestic industry based on licensing
under 19 U.S.C. 1337 (a)(3)(C) requires proof of ``articles
protected by the patent'' (i.e., a technical prong). If so, please
identify and describe the evidence in the record that establishes
articles protected by the asserted patents.
In connection with the final disposition of this investigation, 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. The
Commission, however, is not interested in receiving written submissions
that address the form of remedy and bonding, if any, or the public
interest at this time.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issue identified in this notice. The
written submissions must be filed no later than close of business on
September 27, 2013. Initial submissions are limited to 15 pages. Reply
submissions must be filed no later than the close of business on
October 4, 2013. Reply submissions are limited to 10 pages. No further
submissions on this issue will be permitted unless otherwise ordered by
the Commission.
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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-800'') 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).
By order of the Commission.
Issued: September 4, 2013.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-21935 Filed 9-9-13; 8:45 am]
BILLING CODE 7020-02-P