[Federal Register Volume 81, Number 34 (Monday, February 22, 2016)]
[Notices]
[Pages 8744-8746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03537]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-939]
Certain Three-Dimensional Cinema Systems and Components Thereof
Commission Determination To Review the Final Initial Determination in
Part; Schedule for Filing Written Submissions on the Issues Under
Review and on Remedy, Public Interest, and Bonding
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-part the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') in the above-captioned investigation on December 16, 2015.
The Commission requests certain briefing from the parties on the issues
under review, as indicated in this notice. The Commission also requests
briefing from the parties and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Lucy Grace D. Noyola, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202-205-3438. 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 December 12, 2014, based on a complaint filed by RealD, Inc. of
Beverly Hills, California (``RealD''). 79 FR 73902-03. The complaint
alleges 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
[[Page 8745]]
importation of certain three-dimensional cinema systems and components
thereof that infringe certain claims of U.S. Patent Nos. 7,905,602;
8,220,934; 7,857,455; and 7,959,296. Id. at 73902. The notice of
investigation named as respondents MasterImage 3D, Inc. of Sherman
Oaks, California, and MasterImage 3D Asia, LLC of Seoul, Republic of
Korea (collectively, ``MasterImage''). Id. at 73903. The Office of
Unfair Import Investigations was not named as a party to the
investigation. Id.
On December 16, 2015, the ALJ issued a final ID finding a violation
of section 337 with respect to all three asserted patents. The ALJ
found that the asserted claims of each patent are infringed. The ALJ
found that the asserted claims of the asserted patents are not invalid
for anticipation or obviousness. The ALJ found that the asserted claims
of the '455 patent satisfy the written description and the definiteness
requirements of 35 U.S.C. 112. The ALJ found that the asserted patents
are not unenforceable due to inequitable conduct. The ALJ found that
the '296 patent properly named all inventors of that patent. The ALJ
found that the technical prong of the domestic industry requirement was
satisfied for the asserted patents. The ALJ also issued a Recommended
Determination on Remedy and Bonding (``RD''), recommending that a
limited exclusion order and a cease and desist order should issue and
that a bond of 100 percent should be imposed during the period of
presidential review.
On December 29, 2015, MasterImage filed a petition for review
challenging various findings in the final ID. On January 6, 2016, RealD
filed a response to MasterImage's petition. On January 15, 2016, and
January 19, 2016, MasterImage and RealD respectively filed post-RD
statements on the public interest under Commission Rule 210.50(a)(4).
The Commission did not receive any post-RD public interest comments
from the public in response to the Commission notice issued on December
22, 2015. 80 FR 80795 (Dec. 28, 2015).
Having examined the record of this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review in part the ALJ's determination of a section 337
violation. Specifically, the Commission has determined to review (1)
the ID's construction of the ``uniformly modulate'' limitation recited
in claims 1 and 17 of the '455 patent; (2) the ID's infringement
findings with respect to the asserted claims of the '455 patent; (3)
the ID's findings on validity of the asserted claims of the '455
patent; (4) the ID's finding of proper inventorship of the '296 patent;
(5) the ID's findings on validity of the asserted claims of the '934
patent; and (6) the ID's finding regarding the technical prong of the
domestic industry requirement with respect to the '455 patent.
The Commission has determined not to review the remaining issues
decided in the final ID. In connection with its review, the Commission
requests responses to the following questions only. The parties are
requested to brief their positions with reference to the applicable law
and the existing evidentiary record.
1. Discuss whether the accused products satisfy the limitation
``uniformly modulate'' recited in claims 1 and 17 of the '455 patent if
the limitation is construed as: ``operating on all input light to
change it from one polarization state to another polarization state.''
2. Applying the construction in Question No. 1, discuss whether the
prior art discloses or suggests the limitation ``uniformly modulate.''
3. Applying the construction in Question No. 1, discuss whether the
alleged domestic industry products satisfy the limitation ``uniformly
modulate.''
4. Discuss whether the written description requirement under Sec.
112, ] 1 is satisfied with respect to the asserted claims of the '455
patent that do not require an element for rotating the polarization
state of the light energy in one path to match the polarization state
of the light energy in the other path. Explain the role of such
rotation in improving image brightness. In addition, discuss the
necessity of such rotation where a single polarization modulator is
used.
5. Discuss any authorities that have excluded from the scope of a
limited exclusion order components of an infringing product where those
components are also used in non-adjudicated products, and discuss
whether those authorities apply in this investigation. In addition,
discuss whether a certification provision in a limited exclusion order
would address the parties' dispute as to such components.
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 (Dec. 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 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.
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 all of 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. Complainant RealD is also requested to
submit proposed remedial orders for the Commission's consideration.
RealD is also requested to state the date that the asserted patents
expire and the HTSUS numbers under which the accused
[[Page 8746]]
products are imported, and provide identification information for all
known importers of the subject articles. Initial written submissions
and proposed remedial orders must be filed no later than close of
business on Tuesday, March 1, 2016. Initial written submissions by the
parties shall be no more than 50 pages, excluding any attachments or
exhibits. Reply submissions must be filed no later than the close of
business on Friday, March 11, 2016. Reply submissions by the parties
shall be no more than 30 pages, excluding any attachments or exhibits.
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-939'') 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 at
(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 Sec. 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 any confidential
filing. All nonconfidential 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. Sec.
1337), and in Part 210 of the Commission's Rules of Practice and
Procedure (19 CFR part 210).
By order of the Commission.
Issued: February 16, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-03537 Filed 2-19-16; 8:45 am]
BILLING CODE 7020-02-P