Federal Register, Volume 79 Issue 37 (Tuesday, February 25, 2014)

[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Notices]
[Pages 10554-10556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03968]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-853]

Certain Wireless Consumer Electronics Devices and Components
Thereof; Notice of Commission Determination Finding No Violation of
Section 337; Termination of Investigation

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 Section 337 in the above-
referenced investigation. The investigation is terminated.

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,

[[Page 10555]]

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 24, 2012, based on a complaint filed by Technology Properties
Limited LLC and Phoenix Digital Solutions LLC, both of Cupertino,
California; and Patriot Scientific Corporation of Carlsbad, California
(collectively ``Complainants''). 77 FR 51572-573 (August 24, 2012). 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 consumer
electronics devices and components thereof by reason of infringement of
certain claims of U.S. Patent No. 5,809,336 (``the '336 patent''). The
Commission's notice of investigation named the following as
respondents: Acer, Inc. of Taipei, Taiwan and Acer America Corporation
of San Jose, California (collectively ``Acer''); Amazon.com, Inc. of
Seattle, Washington (``Amazon''); Barnes and Noble, Inc. of New York,
New York (``B&N''); Garmin Ltd of Schaffhausen, Switzerland, Garmin
International, Inc. of Olathe, Kansas, and Garmin USA, Inc. of Olathe,
Kansas (collectively ``Garmin''); HTC Corporation of Taoyuan, Taiwan
and HTC America of Bellevue, Washington (collectively ``HTC''); Huawei
Technologies Co, Ltd. of Shenzhen, China (``Huawei Tech.''); Huawei
North America of Plano, Texas (``Huawei NA''); Kyocera Corporation of
Kyoto, Japan and Kyocera Communications, Inc. of San Diego, California
(collectively ``Kyocera''); LG Electronics, Inc. of Seoul, Republic of
Korea and LG Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey
(collectively ``LG''); Nintendo Co. Ltd. of Kyoto, Japan and Nintendo
of America, Inc. of Redmond, Washington (collectively ``Nintendo'');
Novatel Wireless, Inc. of San Diego, California (``Novatel''); Samsung
Electronics Co., Ltd., of Seoul, Republic of Korea and Samsung
Electronics America, Inc. of Ridgefield Park, New Jersey (collectively
``Samsung''); Sierra Wireless, Inc. of British Columbia, Canada and
Sierra Wireless America, Inc. of Carlsbad, California (collectively
``Sierra''); and ZTE Corporation of Shenzhen, China and ZTE (USA) Inc.
of Richardson, Texas (collectively ``ZTE''). The Office of Unfair
Import Investigations was named as a participating party.
The Commission later amended the Notice of Investigation to remove
Huawei NA as a respondent and to add Huawei Device Co., Ltd. of
Shenzhen, China; Huawei Device USA Inc. of Plano, Texas; and Futurewei
Technologies, Inc. d/b/a Huawei Technologies (USA) of Plano, Texas
(``new Huawei respondents'') as respondents. 78 FR 12354 (Feb. 22,
2013). The Commission later terminated respondents Sierra and Kyocera
from the investigation. Notice (Feb. 4, 2013); Notice (Sept. 20, 2013).
The Commission also terminated respondents Acer and Amazon from the
investigation. 78 FR 71643, 71644 (Nov. 29, 2013).
The active respondents in the investigation include: B&N, Garmin,
HTC, Huawei Tech., the new Huawei respondents, LG, Nintendo, Novatel,
Samsung, and ZTE. Nintendo was accused of infringing only claims 1 and
11, for which the Commission determined not to review the ALJ's
findings of no infringement. Id.
On September 6, 2013, the ALJ issued his final initial
determination (``ID''), finding no violation of Section 337 with
respect to all of the named respondents. Specifically, the ALJ found
that the importation requirement of Section 337 is satisfied. The ALJ
also found that none of the accused products directly or indirectly
infringe the asserted claims of the '336 patent. The ALJ further found
that the asserted claims of the '336 patent have not been found to be
invalid. The ALJ also found that respondents have not shown that the
accused LG product is covered by a license to the '336 patent. The ALJ
further found that Complainants have satisfied the domestic industry
requirement pursuant to 19 U.S.C. 1337(a)(3)(C) for the '336 patent
because Complainants' licensing activities have a nexus to the '336
patent and because Complainants' licensing investments with respect to
the '336 patent are substantial. The ALJ also found that there are no
public interest issues that would preclude issuance of a remedy were
the Commission to find a violation of section 337. The ALJ also issued
a recommended determination, recommending that the appropriate remedy
is a limited exclusion order barring entry of infringing wireless
consumer electronics devices and components thereof against the active
respondents. The ALJ did not recommend issuance of a cease and desist
order against any respondent. The ALJ also did not recommend the
imposition of a bond during the period of Presidential review. On
September 12, 2013, the ALJ issued a Notice of Clarification
supplementing the Final ID. Notice of Clarification Regarding Final
Initial Determination (Sept. 12, 2013).
On September 23, 2013, Complainants filed a petition for review of
certain aspects of the final ID concerning asserted claims 6 and 13 of
the '336 patent. In particular, Complainants requested that the
Commission review the ID's construction of the ``entire oscillator''
terms recited in claims 6 and 13 and the ID's infringement findings
based on those limitations. Complainants also requested that the
Commission review the ID's infringement findings concerning the
limitations ``varying,'' ``independent,'' and ``asynchronous'' recited
in claims 6 and 13. Also on September 23, 2013, the respondents who had
not settled with Complainants filed a contingent petition for review of
certain aspects of the final ID. In particular, the respondents
requested review of the ID's finding that Complainants have satisfied
the domestic industry requirement based on licensing activities. On
October 17, 2013, the respondents filed a response to Complainants'
petition for review. Also on October 17, 2013, Complainants filed a
response to the respondents' contingent petition for review. Further on
October 17, 2013, the IA filed a joint response to the private parties'
petitions.
On October 17, 2013, Complainants filed a post-RD statement on the
public interest pursuant to Commission Rule 210.50(a)(4). On October
23, 2013, the respondents also filed a submission pursuant to the rule.
No responses from the public were received in response to the post-RD
Commission Notice issued on September 9, 2013. See Notice of Request
for Statements on the Public Interest (Sept. 9, 2013).
On November 25, 2013, the Commission determined to review the final
ID in part with respect to the ID's findings concerning claim
construction and infringement of claims 6 and 13 of the '336 patent and
domestic industry. 78 FR at 71644-45. The Notice of Review included
briefing questions regarding the certain issues under review. Id. The
Commission determined not to review the remaining issues decided in the
final ID. Id. at 71644. The Commission also extended the target

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date for completion of the investigation to January 29, 2014. Id. at
71645.
On December 19, 2013, in reponse to a request from the parties, the
Commission granted the parties an extension to file their reply
submissions in response to the Commission's request for briefing to
January 6, 2014, and further extended the target date for completion of
the investigation to February 19, 2014. Notice (Dec. 19, 2013).
On December 23, 2013, the parties filed initial submissions
responding to the Commission's request for briefing on review and
concerning remedy, the public interest, and bonding. On January 6,
2014, the parties filed reply submissions. Several third parties filed
submissions concerning the public interest, including: Sprint Spectrum,
L.P.; CTIA--The Wireless Association[supreg]; and United States
Cellular Corporation.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review and the responses thereto, and
the parties' submissions on review, the Commission has determined to
find no violation of section 337 with respect to the '336 patent.
Specifically, the Commission affirms the ID's claim constructions
as to claims 6 and 13 of the '336 patent.
Regarding infringement, the Commission affirms with modification
the ALJ's finding that the accused products do not satisfy the ``entire
oscillator,'' ``varying,'' and ``external clock'' limitations of claims
6 and 13. Moreover, the Commission affirms the ALJ's finding that
Complainants failed to prove indirect infringement because they failed
to prove direct infringement.
With respect to the domestic industry requirement, the Commission
finds that Complainants have satisfied the economic prong of the
domestic industry requirement based on modified reasoning.
The investigation is terminated.
The Commission will issue an opinion reflecting its decision within
seven days of this notice.
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: February 19, 2014.

By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2014-03968 Filed 2-24-14; 8:45 am]
BILLING CODE 7020-02-P