[Federal Register Volume 79, Number 208 (Tuesday, October 28, 2014)]
[Notices]
[Pages 64214-64215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25551]
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INTERNATIONAL TRADE COMMISSION
[Investigation Nos. 337-TA-867/861 (Advisory Opinion Proceeding)]
Certain Cases for Portable Electronic Devices; Institution of an
Advisory Opinion Proceeding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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[[Page 64215]]
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to institute an advisory opinion proceeding
in the above-captioned 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 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 Inv. No. 337-TA-
861 on November 16, 2012, based on a complaint filed by Speculative
Product Design, LLC of Mountain View, California (``Speck''). 77 FR
68828 (Nov. 16, 2012). The complaint alleged violations of section 337
of the Tariff Act of 1930 (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 cases for portable electronic
devices by reason of infringement of various claims of United States
Patent No. 8,204,561 (``the '561 patent''). The complaint named several
respondents.
The Commission instituted Inv. No. 337-TA-867 on January 31, 2013,
based on a complaint filed by Speck. 78 FR 6834 (Jan. 31, 2013). That
complaint also alleged violations of section 337 of the Tariff Act of
1930 (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 cases for portable electronic devices by reason
of infringement of various claims of the '561 patent. The complaint
named several respondents. On January 31, 2013, the Commission
consolidated the two investigations. Id.
All the participating respondents were terminated from the
consolidated investigations as a result of settlement agreements,
consent motion stipulations, or withdrawal of the complaint as to them.
A number of the named respondents defaulted. On February 21, 2014, the
ALJ issued his final initial determination finding a violation of
section 337 as to claims 4, 5, 9, and 11 of the '561 patent by the
defaulting respondents and recommended issuance of a general exclusion
order (``GEO''). Based on evidence of a pattern of violation and
difficulty ascertaining the source of the infringing produces, the
Commission agreed with the ALJ and issued a GEO directed to cases for
portable electronic devices that infringe one of claims 4, 5, 9, and 11
of the '561 patent.
On September 4, 2014, Otter Products, LLC of Fort Collins, Colorado
(``Otter'') filed a request with the Commission asking for institution
of an advisory opinion proceeding to declare that its Symmetry Series
Products are not covered by the general exclusion order. Specifically,
Otter requests that the proceeding consider: (1) Whether, under section
337 and the Administrative Procedure Act, the GEO should apply to
Otter's imports absent a determination by the Commission in a violation
or enforcement proceeding that Otter's products infringe; (2) whether
Otter's products are covered by one or more of claims 4, 5, 9, and 11
of the '561 patent; and (3) that the Commission consider the validity
of the '561 patent as part of this proceeding. On October 1, 2014,
complainant Speck filed an opposition to Otter's request.
The Commission has determined that Otter's request complies with
the requirements for institution of an advisory opinion proceeding
under Commission Rule 210.79 to determine whether Otter's Symmetry
Series products infringe one or more of claims 4, 5, 9, and 11 of the
'561 patent. The Commission has determined to reject Otter's argument
that the GEO should apply to only products that were specifically
before the Commission. See Hyundai Elecs. Indus. Co. v. U.S. Int'l
Trade Comm'n, 899 F.2d 1204, 1210 (Fed. Cir. 1990) (internal citations
omitted) (``the Commission can impose a general exclusion order that
binds parties and non-parties alike and effectively shifts to would-be
importers of potentially infringing articles, as a condition of entry,
the burden of establishing noninfringement.''); Multi Level Touch
Control Lighting Switches, USITC Inv. No. 337-TA-225, 1987 ITC Lexis
274, *6 (Jul. 16, 1987) (``It is in the nature of general exclusion
orders that they may apply to articles not before the Commission during
the investigation.'') The Commission has also determined to continue
its longstanding practice of not considering the validity of the
underlying intellectual property in advisory proceedings. See Certain
Rare Earth Magnets and Magnetic Materials and Articles Containing Same,
Inv. No. 337-TA-413, Denial of Request for Advisory Opinion at 1 (Nov.
1, 2010); Multi-Level Touch Control Lighting Switches, Inv. No. 337-TA-
225 at *5-6.
Accordingly, the Commission has determined to institute an advisory
opinion proceeding to determine only whether Otter's Symmetry Series
products infringe one or more of claims 4, 5, 9, and 11 of the '561
patent. The Commission has determined to refer Otter's request to the
Office of Unfair Import Investigations (``OUII''). The parties will
furnish OUII with information as requested, and OUII shall investigate
and issue a report to the Commission within ninety (90) days of the
date of publication of this notice in the Federal Register. The
Commission will issue an advisory opinion within 45 days of receipt of
OUII's written report. The following entities are named as parties to
the proceeding: (1) Complainant Speck and (2) Otter.
The authority for the Commission's determination is contained in
sections 335 and 337 of the Tariff Act of 1930, as amended (19 U.S.C.
1335, 1337), and in part 210 of the Commission's Rules of Practice and
Procedure (19 CFR part 210).
Issued: October 22, 2014.
By order of the Commission.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-25551 Filed 10-27-14; 8:45 am]
BILLING CODE 7020-02-P