Certain Activity Tracking Devices, Systems, and Components Thereof; Commission Determination Not To Review a Final Initial Determination Finding No Violation of Section 337; Termination of the Investigation, 74479-74480 [2016-25829]

Download as PDF Federal Register / Vol. 81, No. 207 / Wednesday, October 26, 2016 / Notices as the requestor’s Social Security Number, is needed to identify records unique to the requestor. Failure to provide the required information may result in the NPS being unable to take any action on the request. The NPS plans to implement the use of Form 10–945, ‘‘Certification of Identity and Consent’’ to collect the minimal information necessary to verify the identity of first-party requesters request information about themselves and document if and when they authorized the NPS to release their information to a third party. NPS Form 10–945 requires for the following information to verify the identity of the requester: • Full name of Requester; • Case Number; • Social Security Number; • Current Address; • Date of Birth; and • Place of birth. asabaliauskas on DSK3SPTVN1PROD with NOTICES II. Data OMB Control Number: 1024—New. Title: Certification of Identity and Consent Form. Service Form Numbers: NPS Form 10–945, ‘‘Certification of Identity and Consent’’. Type of Request: Existing collection in use without OMB approval. Description of Respondents: Individuals requesting copies of law enforcement case incident reports maintained within the Department of Interior’s Incident Management and Reporting System (IMARS). Frequency of Collection: On occasion. Respondent’s Obligation: Required to obtain or retain a benefit. Estimated Number of Annual Responses: 2,000. Estimated Completion Time per Response: 3 minutes. Estimated Total Annual Burden Hours: 100. Estimated Annual Nonhour Cost Burden: None. III. Comments On January 15, 2016, we published in the Federal Register (81 FR 2233) a Notice of our intent to request that OMB approval of this information collection. In that Notice, we solicited comments for 60 days, ending on March 15, 2016. No comments were received in response to that Notice. We again invite comments concerning this information collection on: • Whether or not the collection of information is necessary, including whether or not the information will have practical utility; • The accuracy of our estimate of the burden for this collection of information; VerDate Sep<11>2014 18:25 Oct 25, 2016 Jkt 241001 • Ways to enhance the quality, utility, and clarity of the information to be collected; and • Ways to minimize the burden of the collection of information on respondents. Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done. Dated: October 21, 2016. Madonna L. Baucum, Information Collection Clearance Officer, National Park Service. [FR Doc. 2016–25847 Filed 10–25–16; 8:45 am] BILLING CODE 4310–EH–P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–963] Certain Activity Tracking Devices, Systems, and Components Thereof; Commission Determination Not To Review a Final Initial Determination Finding No Violation of Section 337; Termination of the Investigation U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission has determined not to review the final initial determination (‘‘ID’’) issued by the presiding administrative law judge (‘‘ALJ’’) on August 23, 2016, finding no violation of section 337 of the Tariff Act of 1930, as amended, in connection with alleged misappropriation of certain trade secrets. 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 SUMMARY: PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 74479 information concerning the Commission may also be obtained by accessing its Internet server (https://www.usitc.gov). The public record for this investigation may be viewed on the Commission’s electronic docket (EDIS) at https:// 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–963 on August 21, 2015, based on a complaint filed by AliphCom d/b/a Jawbone of San Francisco, California and BodyMedia, Inc. of Pittsburgh, Pennsylvania (collectively, ‘‘Jawbone’’). 80 FR 50870–71 (Aug. 21, 2015). 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 importation of certain activity tracking devices, systems, and components thereof by reason of infringement of certain claims of U.S. Patent No. 8,529,811 (‘‘the ’811 patent); U.S. Patent No. 8,398,546 (‘‘the ’546 patent); U.S. Patent No. 8,793,522 (‘‘the ’522 patent); U.S. Patent No. 8,446,275 (‘‘the ’275 patent); U.S. Patent No. 8,961,413 (‘‘the ’413 patent); and U.S. Patent No. 8,073,707 (‘‘the ’707 patent’’). The complaint further alleges misappropriation of trade secrets, the threat or effect of which is to destroy or substantially injure an industry in the United States. The notice of investigation named the following respondents: Fitbit, Inc. of San Francisco, California (‘‘Fitbit’’); Flextronics International Ltd. of San Jose, California; and Flextronics Sales & Marketing (A–P) Ltd. of Port Louis, Mauritius (collectively, ‘‘Flextronics’’); Fitbit and Flextronics are collectively referred to as ‘‘Respondents.’’ The Office of Unfair Import Investigations (‘‘OUII’’) is a party to the investigation. On February 22, 2016, the ALJ granted Jawbone’s unopposed motion to terminate the investigation as to the ’522 patent; claims 8–10, 13, 14, and 18 of the ’275 patent; claim 6 of the ’811 patent; and claims 5 and 8 of the ’413 patent. See Order No. 32. The Commission determined not to review the ID. See Comm’n Notice of Nonreview (Mar. 21, 2016). On March 3, 2016, the ALJ granted Fitbit’s motion for summary determination that the asserted claims of the ’546 and ’275 patents are directed to ineligible subject matter under 35 U.S.C. 101. See Order No. 40. The Commission determined to review the E:\FR\FM\26OCN1.SGM 26OCN1 asabaliauskas on DSK3SPTVN1PROD with NOTICES 74480 Federal Register / Vol. 81, No. 207 / Wednesday, October 26, 2016 / Notices ID, and on review to affirm the ID with certain modifications. See Comm’n Notice affirming the ID with modification (Apr. 4, 2016). On March 11, 2016, the ALJ granted Jawbone’s unopposed motion to terminate the investigation as to the remaining claims of the ’811 patent. See Order No. 42. The Commission determined not to review the ID. See Comm’n Notice of Non-review (Apr. 4, 2016). On April 27, 2016, the ALJ granted Fitbit’s motion for summary determination that the asserted claims of the ’413 and ’707 patents (the two patents remaining in the investigation), are directed to ineligible subject matter under 35 U.S.C. 101. See Order No. 54. The Commission determined not to review the ID. See Comm’n Notice of Non-review (Jun. 2, 2016). Thus, all the patent infringement allegations were terminated from the investigation. Only the allegations of trade secret misappropriation remain at issue in the investigation. The ALJ held an evidentiary hearing from May 9, 2016 through May 17, 2016, and thereafter received post-hearing briefing from the parties. During discovery, Jawbone identified 154 trade secrets allegedly misappropriated by Respondents (Trade Secret Nos. 1–144, including Nos. 1.A–1.G, 92–A, 139–A, and 141–A.). ID at 3. Yet at the hearing, Jawbone presented evidence and argument on only 38 of the alleged trade secrets (Trade Secret Nos. 1, 1A–G, 2– 4, 12–14, 17, 18, 33, 52, 53, 55, 58, 91, 92, 92–A, 93–102, 128, 129, 141, 141– A). Jawbone’s post-hearing briefs addressed only five of the alleged trade secrets (Trade Secret Nos. 92, 92–A, 98, 128, and 129). Specifically, Jawbone argued that Fitbit misappropriated alleged Trade Secret Nos. 98 and 128, and Flextronics misappropriated alleged Trade Secret Nos. 92, 92–A, and 129. ID at 3–4. On June 15, 2016, Jawbone moved to terminate the investigation as to all of the trade secrets except for the five alleged trade secrets addressed in its post-hearing briefing. ID at 4 (citing Mot. Docket No. 963–072). Respondents opposed the motion, arguing that they are ‘‘entitled to a determination that Jawbone failed to present sufficient evidence showing actual misappropriation as to all of the trade secrets that Jawbone now seeks to abandon. . . .’’ See id. at 23 (quoting Mot. 072 Rsp. at 8) (emphasis in original). The ALJ denied Jawbone’s motion as outside the scope of Commission Rule 210.21(a). She also denied Fitbit’s request for a determination on whether the VerDate Sep<11>2014 18:25 Oct 25, 2016 Jkt 241001 withdrawn trade secrets were misappropriated. Id. at 20, 23–24. The ALJ stated that ‘‘[p]arties are free to waive arguments’’ and that Fitbit failed to provide ‘‘any support for the proposition that arguments that have been waived and abandoned should be considered on their merits.’’ Id. The ALJ also granted Jawbone’s June 30, 2016 motion to strike Section V.A. of Fitbit’s post-hearing reply brief for improperly raising a new argument based on news articles that are not in the record of the investigation. Id. at 25. No party petitioned for review of the ALJ’s determinations as to these motions. On August 23, 2016, the ALJ issued her final ID finding no violation of section 337 by Respondents in connection with the alleged trade secrets misappropriation. Specifically, the ALJ found that the Commission has subject matter jurisdiction, in rem jurisdiction over the accused products, and in personam jurisdiction over Respondents. ID at 15–16. The ALJ further found that Jawbone satisfied the importation requirement of section 337, noting that Respondents have stipulated that the accused products have been imported into the United States. Id. at 16. The ALJ, however, found that Jawbone failed to show that the alleged trade secrets constitute actual trade secrets, and that Respondents did not misappropriate any of Jawbone’s alleged trade secrets. ID at 28, 38, 45–46. Finally, the ALJ found that Jawbone failed to prove a threat of substantial injury to a domestic industry as required by 19 U.S.C. 1337(a)(1)(A)(i). See ID at 79–80. In that regard, the ALJ referenced her finding of no misappropriation of trade secrets and added that ‘‘even if Jawbone had proven misappropriation of the five asserted trade secrets, there is no way to decide on this record what specific injury is attributable to these trade secrets, and whether the injury is substantial.’’ Id. at 80. On September 6, 2016, Jawbone filed a petition for review of the ID, challenging only the ALJ’s findings as to alleged Trade Secret Nos. 92, 92–A, and 98. On September 14, 2016, Respondents and the Commission investigative attorney filed responses to the petition for review. Having examined the record of this investigation, including the ALJ’s final ID, the petition for review, and the responses thereto, the Commission has determined not to review the final ID. This investigation is therefore terminated. The authority for the Commission’s determination is contained in section 337 of the Tariff Act of 1930, as PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 amended (19 U.S.C. 1337), and in Part 210 of the Commission’s Rules of Practice and Procedure (19 CFR part 210). By order of the Commission. Issued: October 20, 2016. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2016–25829 Filed 10–25–16; 8:45 am] BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—Advanced Media Workflow Association, Inc. Notice is hereby given that, on September 21, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Advanced Media Workflow Association, Inc. has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, NHK (Japan Broadcasting Corporation), Tokyo, Japan; STORDIS GmbH, Stuttgart, Germany; The Telos Alliance, Cleveland, OH; and Mark Franken (individual member), Winston Hills, Australia, have been added as parties to this venture. Also, Encompass Digital Media, Stanford, CT; Malooba, Launceston, United Kingdom; Tektronix, Beaverton, OR; and Yangaroo, Inc., Toronto, Ontario, Canada, have withdrawn as parties to this venture. No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Advanced Media Workflow Association, Inc. intends to file additional written notifications disclosing all changes in membership. On March 28, 2000, Advanced Media Workflow Association, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the Federal Register pursuant to Section 6(b) of the Act on June 29, 2000 (65 FR 40127). The last notification was filed with the Department on June 22, 2016. A notice was published in the Federal E:\FR\FM\26OCN1.SGM 26OCN1

Agencies

[Federal Register Volume 81, Number 207 (Wednesday, October 26, 2016)]
[Notices]
[Pages 74479-74480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25829]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-963]


Certain Activity Tracking Devices, Systems, and Components 
Thereof; Commission Determination Not To Review a Final Initial 
Determination Finding No Violation of Section 337; Termination of the 
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined not to review the final initial determination 
(``ID'') issued by the presiding administrative law judge (``ALJ'') on 
August 23, 2016, finding no violation of section 337 of the Tariff Act 
of 1930, as amended, in connection with alleged misappropriation of 
certain trade secrets.

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 (https://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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-
963 on August 21, 2015, based on a complaint filed by AliphCom d/b/a 
Jawbone of San Francisco, California and BodyMedia, Inc. of Pittsburgh, 
Pennsylvania (collectively, ``Jawbone''). 80 FR 50870-71 (Aug. 21, 
2015). 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 importation of certain activity tracking devices, systems, 
and components thereof by reason of infringement of certain claims of 
U.S. Patent No. 8,529,811 (``the '811 patent); U.S. Patent No. 
8,398,546 (``the '546 patent); U.S. Patent No. 8,793,522 (``the '522 
patent); U.S. Patent No. 8,446,275 (``the '275 patent); U.S. Patent No. 
8,961,413 (``the '413 patent); and U.S. Patent No. 8,073,707 (``the 
'707 patent''). The complaint further alleges misappropriation of trade 
secrets, the threat or effect of which is to destroy or substantially 
injure an industry in the United States. The notice of investigation 
named the following respondents: Fitbit, Inc. of San Francisco, 
California (``Fitbit''); Flextronics International Ltd. of San Jose, 
California; and Flextronics Sales & Marketing (A-P) Ltd. of Port Louis, 
Mauritius (collectively, ``Flextronics''); Fitbit and Flextronics are 
collectively referred to as ``Respondents.'' The Office of Unfair 
Import Investigations (``OUII'') is a party to the investigation.
    On February 22, 2016, the ALJ granted Jawbone's unopposed motion to 
terminate the investigation as to the '522 patent; claims 8-10, 13, 14, 
and 18 of the '275 patent; claim 6 of the '811 patent; and claims 5 and 
8 of the '413 patent. See Order No. 32. The Commission determined not 
to review the ID. See Comm'n Notice of Non-review (Mar. 21, 2016).
    On March 3, 2016, the ALJ granted Fitbit's motion for summary 
determination that the asserted claims of the '546 and '275 patents are 
directed to ineligible subject matter under 35 U.S.C. 101. See Order 
No. 40. The Commission determined to review the

[[Page 74480]]

ID, and on review to affirm the ID with certain modifications. See 
Comm'n Notice affirming the ID with modification (Apr. 4, 2016).
    On March 11, 2016, the ALJ granted Jawbone's unopposed motion to 
terminate the investigation as to the remaining claims of the '811 
patent. See Order No. 42. The Commission determined not to review the 
ID. See Comm'n Notice of Non-review (Apr. 4, 2016).
    On April 27, 2016, the ALJ granted Fitbit's motion for summary 
determination that the asserted claims of the '413 and '707 patents 
(the two patents remaining in the investigation), are directed to 
ineligible subject matter under 35 U.S.C. 101. See Order No. 54. The 
Commission determined not to review the ID. See Comm'n Notice of Non-
review (Jun. 2, 2016). Thus, all the patent infringement allegations 
were terminated from the investigation. Only the allegations of trade 
secret misappropriation remain at issue in the investigation.
    The ALJ held an evidentiary hearing from May 9, 2016 through May 
17, 2016, and thereafter received post-hearing briefing from the 
parties. During discovery, Jawbone identified 154 trade secrets 
allegedly misappropriated by Respondents (Trade Secret Nos. 1-144, 
including Nos. 1.A-1.G, 92-A, 139-A, and 141-A.). ID at 3. Yet at the 
hearing, Jawbone presented evidence and argument on only 38 of the 
alleged trade secrets (Trade Secret Nos. 1, 1A-G, 2-4, 12-14, 17, 18, 
33, 52, 53, 55, 58, 91, 92, 92-A, 93-102, 128, 129, 141, 141-A). 
Jawbone's post-hearing briefs addressed only five of the alleged trade 
secrets (Trade Secret Nos. 92, 92-A, 98, 128, and 129). Specifically, 
Jawbone argued that Fitbit misappropriated alleged Trade Secret Nos. 98 
and 128, and Flextronics misappropriated alleged Trade Secret Nos. 92, 
92-A, and 129. ID at 3-4.
    On June 15, 2016, Jawbone moved to terminate the investigation as 
to all of the trade secrets except for the five alleged trade secrets 
addressed in its post-hearing briefing. ID at 4 (citing Mot. Docket No. 
963-072). Respondents opposed the motion, arguing that they are 
``entitled to a determination that Jawbone failed to present sufficient 
evidence showing actual misappropriation as to all of the trade secrets 
that Jawbone now seeks to abandon. . . .'' See id. at 23 (quoting Mot. 
072 Rsp. at 8) (emphasis in original). The ALJ denied Jawbone's motion 
as outside the scope of Commission Rule 210.21(a). She also denied 
Fitbit's request for a determination on whether the withdrawn trade 
secrets were misappropriated. Id. at 20, 23-24. The ALJ stated that 
``[p]arties are free to waive arguments'' and that Fitbit failed to 
provide ``any support for the proposition that arguments that have been 
waived and abandoned should be considered on their merits.'' Id. The 
ALJ also granted Jawbone's June 30, 2016 motion to strike Section V.A. 
of Fitbit's post-hearing reply brief for improperly raising a new 
argument based on news articles that are not in the record of the 
investigation. Id. at 25. No party petitioned for review of the ALJ's 
determinations as to these motions.
    On August 23, 2016, the ALJ issued her final ID finding no 
violation of section 337 by Respondents in connection with the alleged 
trade secrets misappropriation. Specifically, the ALJ found that the 
Commission has subject matter jurisdiction, in rem jurisdiction over 
the accused products, and in personam jurisdiction over Respondents. ID 
at 15-16. The ALJ further found that Jawbone satisfied the importation 
requirement of section 337, noting that Respondents have stipulated 
that the accused products have been imported into the United States. 
Id. at 16. The ALJ, however, found that Jawbone failed to show that the 
alleged trade secrets constitute actual trade secrets, and that 
Respondents did not misappropriate any of Jawbone's alleged trade 
secrets. ID at 28, 38, 45-46. Finally, the ALJ found that Jawbone 
failed to prove a threat of substantial injury to a domestic industry 
as required by 19 U.S.C. 1337(a)(1)(A)(i). See ID at 79-80. In that 
regard, the ALJ referenced her finding of no misappropriation of trade 
secrets and added that ``even if Jawbone had proven misappropriation of 
the five asserted trade secrets, there is no way to decide on this 
record what specific injury is attributable to these trade secrets, and 
whether the injury is substantial.'' Id. at 80.
    On September 6, 2016, Jawbone filed a petition for review of the 
ID, challenging only the ALJ's findings as to alleged Trade Secret Nos. 
92, 92-A, and 98. On September 14, 2016, Respondents and the Commission 
investigative attorney filed responses to the petition for review. 
Having examined the record of this investigation, including the ALJ's 
final ID, the petition for review, and the responses thereto, the 
Commission has determined not to review the final ID. This 
investigation is therefore terminated.
    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).

    By order of the Commission.

    Issued: October 20, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-25829 Filed 10-25-16; 8:45 am]
 BILLING CODE 7020-02-P