[Federal Register Volume 78, Number 240 (Friday, December 13, 2013)]
[Notices]
[Pages 75942-75944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29738]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-847]
Certain Mobile Phones and Tablet Computers, and Components
Thereof; Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Schedule for Briefing
on the Issues Under Review and on Remedy, the Public Interest, and
Bonding
AGENCY: U.S. International Trade Commission.
[[Page 75943]]
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part a final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ''), finding a violation of section 337 of the Tariff Act of
1930, 19 U.S.C. 1337, in this investigation.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-5468. 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 June 8, 2012, based on a complaint filed by Nokia Corp., Nokia Inc.,
and Intellisync Corp. (collectively, ``Nokia''). 77 FR 34063-64. The
Commission's notice of investigation named as respondents HTC
Corporation; HTC America, Inc. (together, ``HTC''); and Exedea, Inc.
(``Exedea''). Id. Prior to receiving the complaint and notice of
investigation, counsel for Exedea announced that Exedea had dissolved
as a legal entity. The complaint and notice of investigation sent to
Exedea were returned as undeliverable, and no further action was taken
to serve Exedea. The Office of Unfair Import Investigations did not
participate in this investigation.
Originally, Nokia asserted numerous claims from nine patents
against HTC. Throughout the course of the investigation, several IDs
terminated the investigation with respect to various patents and
claims. See Order No. 9 (Feb. 7, 2013) (terminating the investigation
with respect to U.S. Patent No. 7,366,529 because the patent was
covered by an arbitration agreement), not reviewed (Mar. 11, 2013);
Order No. 10 (Apr. 12, 2013) (terminating the investigation with
respect to U.S. Patent Nos. 7,106,293; 6,141,664; and 7,209,911 patents
based on Nokia's motion to withdraw the patents), not reviewed (Apr.
30, 2013); Order No. 14 (May 14, 2013) (terminating the investigation
with respect to U.S. Patent No. 6,728,530 based on Nokia's motion to
withdraw the patent), not reviewed (May 29, 2013); Order No. 33 (June
13, 2013) (terminating the investigation with respect to U.S. Patent
No. 5,570,369 based on Nokia's motion to withdraw the patent), not
reviewed (July 12, 2013). By the time of the final ID, Nokia asserted
only claim 1 of U.S. Patent No. 5,884,190 (``the '190 patent''); claims
6, 8, 10, and 11 of U.S. Patent No. 6,393,260 (``the '260 patent'');
and claims 2, 18, 19, 21, and 23 of U.S. Patent No. 7,415,247 (``the
'247 patent'').
On May 2, 2013, the ALJ issued an initial determination (Order 13)
finding that HTC could not establish its defense of patent exhaustion.
Nokia and HTC both petitioned for review of Order 13. On June 4, 2013,
the Commission determined to review Order 13, and stated that it would
render its final disposition on Order 13 in conjunction with the final
disposition of the final initial determination in this investigation.
Accordingly, Order 13 remains under review.
On September 23, 2013, the presiding ALJ issued his final ID,
finding a violation of section 337 with respect to claims 6, 8, 10, and
11 of the '260 patent and claims 18, 19, 21, and 23 of the '247 patent,
and finding no violation with respect to the '190 patent and claim 2 of
the '247 patent. The ALJ recommended that a limited exclusion order
issue against all infringing articles imported, sold for importation,
or sold after importation by HTC. The ALJ also recommended that a
cease-and-desist order issue against HTC.
On October 23, 2013, HTC filed a petition for review challenging
several grounds for the ALJ's determination that HTC violated section
337. On October 31, 2013, Nokia filed a response in opposition to HTC's
petition.
Having examined the record of this investigation, including the
ALJ's final ID, the petition for review, and the response thereto, the
Commission has determined to review the final ID in part. Specifically,
the Commission has determined to review the ALJ's findings on claim
construction, infringement, and the technical prong of the domestic
industry requirement for the limitations ``balance adjustment means''
of the '260 patent and ``different radio interfaces''/``different radio
communications systems'' of the '247 patent. The Commission has
determined to review the ALJ's remaining findings on infringement and
the technical prong of the domestic industry requirement for the '247
patent. The Commission has also determined to review the striking of
the testimony and witness statements of Dr. Colyannides. The Commission
has determined not to review the remaining findings in the ID.
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in briefing on the following issues:
1. Whether the phrase ``comprising transistors, or implemented
using a variable voltage source'' is an appropriate modifier of the
corresponding structure for the phrase ``balance adjustment means'' in
the '260 patent.
2. Whether Nokia's evidence with regards to the use of transistors
in calibration is sufficient to establish HTC's infringement of the
``balance adjustment means'' limitation in the '260 patent.
3. Whether Nokia abandoned its contentions with respect to claims
18 and 19 of the '247 patent by failing to set forth with particularity
HTC's infringement of the claim limitation ``an input for receiving a
digital baseband quadrature signal representing an information signal
to be transmitted'' in Nokia's pre-hearing brief.
4. Whether a person of ordinary skill in the art, reading the
phrase ``different radio communications systems'' in the context of the
limitation ``wherein said mixer is common for processing signals for
transmission in at least two different radio communication systems, and
wherein said transmitter amplifier is common for amplifying carrier
frequency signals for transmission to at least two different radio
communications systems . . .'' in light of the specification and
prosecution history of the '247 patent, would have understood that the
disclosed common mixer and common transmitter amplifier could be
utilized with radio communications systems that differed in ways other
than by frequency band.
5. Whether the Federal Circuit's decision in Lifescan Scotland,
Ltd. v. Shasta Techs., LLC, 734 F.3d 1361 (Fed. Cir. 2013), or any
other relevant court decisions, affects HTC's defense of patent
exhaustion based on the transfer of rights under the Nokia-Qualcomm
agreement.
The parties have been invited to brief only the discrete issues
described above, with reference to the applicable law and evidentiary
record. The parties are not to brief other issues on review, which
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are adequately presented in the parties' existing filings.
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 a cease and desist order that could result in the respondent
being required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. 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, 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 a cease and desist order 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. The Commission is particularly
interested in briefing on the following issues:
1. HTC's statement on the public interest contends that the
Qualcomm Magellan and Odyssey transceiver chips have become a de facto
standard in the mobile devices industry. What evidence exists to
support or refute HTC's contention? If HTC is correct, please discuss
any evidence regarding whether the exclusion of HTC devices containing
the Qualcomm Magellan and Odyssey chips raise any concerns similar to
those raised by some commentators regarding patent hold-up in the
FRAND-encumbered standards-essential patent context?
2. Several entities submitted statements on the public interest
asserting that the Commission should consider in its public interest
analysis the fact that HTC's accused products are complex devices
comprising numerous components, whereas Nokia's infringement
allegations are directed to a single component of the accused devices.
How (if at all) should the Commission consider such a factor in
determining whether to issue such a remedy or in fashioning an
appropriate remedy in this investigation?
3. How (if at all) should Nokia's covenant not to sue Qualcomm over
the asserted patents affect the Commission's consideration of the
public interest in determining whether to issue a remedy against HTC
based on the functionality of Qualcomm components or in fashioning an
appropriate remedy in this investigation?
4. Several entities submitted statements on the public interest
asserting that there should be a transition period for any remedy
issued against HTC. Please explain and provide evidence regarding
whether such a transition period is warranted in this investigation.
Additionally, please explain and provide evidence regarding the
appropriate duration for any such transition period.
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.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues identified in this notice.
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. The entirety of the parties' written submissions
must not exceed 75 pages, and must be filed no later than close of
business on December 23, 2013. Reply submissions must not exceed 50
pages, and must be filed no later than the close of business on January
6, 2014. 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-847'') 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 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42-46).
By order of the Commission.
Issued: December 9, 2013.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-29738 Filed 12-12-13; 8:45 am]
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