Certain Digital Video Receivers and Hardware and Software Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Grant of Joint Unopposed Motion for Leave To Amend the Complaint and Notice of Investigation To Correct Corporate Names, 38934-38936 [2017-17283]
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38934
Federal Register / Vol. 82, No. 157 / Wednesday, August 16, 2017 / Notices
Reclamation Act of 1977, as amended (30
U.S.C. 1201 et seq.), and the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Dated: June 15, 2017.
John A. Trelease,
Acting Chief, Division of Regulatory Support.
[FR Doc. 2017–17290 Filed 8–15–17; 8:45 am]
BILLING CODE 4310–05–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1001]
Certain Digital Video Receivers and
Hardware and Software Components
Thereof; Commission Determination
To Review in Part a Final Initial
Determination Finding a Violation of
Section 337; Schedule for Written
Submissions on the Issues Under
Review and on Remedy, the Public
Interest, and Bonding; Grant of Joint
Unopposed Motion for Leave To
Amend the Complaint and Notice of
Investigation To Correct Corporate
Names
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (the ‘‘Commission’’) has
determined to review in part the final
initial determination (‘‘the Final ID’’)
issued by the presiding administrative
law judge (‘‘ALJ’’) on May 26, 2017,
finding a violation of section 337 of the
Tariff Act of 1930, as amended in
connection with certain asserted
patents. The Commission has also
determined to deny Respondents’
motion requesting leave to file a reply
to Rovi’s response to Respondents’
petition for review of the Final ID. The
Commission has further determined to
grant a joint unopposed motion for leave
to amend the complaint and notice of
investigation to correct the corporate
names of certain respondents.
FOR FURTHER INFORMATION CONTACT: Ron
Traud, Office of the General Counsel,
U.S. International Trade Commission,
500 E Street SW., Washington, DC
20436, telephone 202–205–3427. 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
asabaliauskas on DSKBBXCHB2PROD with NOTICES
SUMMARY:
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Internet server at 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, telephone 202–205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on May 26, 2016, based on a complaint
filed on behalf of Rovi Corporation and
Rovi Guides, Inc. (collectively, ‘‘Rovi’’),
both of San Carlos, California. 81 FR
33547–48 (May 26, 2016). The
complaint, as amended, alleges
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C.
1337, by reason of infringement of
certain claims of U.S. Patent No.
8,006,263 (‘‘the ’263 patent’’); U.S.
Patent No. 8,578,413 (‘‘the ’413 patent’’);
U.S. Patent No. 8,046,801 (‘‘the ’801
patent’’); U.S. Patent No. 8,621,512 (‘‘the
’512 patent’’); U.S. Patent No. 8,768,147
(‘‘the ’147 patent’’); U.S. Patent No.
8,566,871 (‘‘the ’871 patent’’); and U.S.
Patent No. 6,418,556 (‘‘the ’556 patent’’).
The complaint further alleges that a
domestic industry exists. Id. at 33548.
The Commission’s notice of
investigation named sixteen
respondents. The respondents are
Comcast Corporation of Philadelphia,
PA; Comcast Cable Communications,
LLC of Philadelphia, PA; Comcast Cable
Communications Management, LLC of
Philadelphia, PA; Comcast Business
Communications, LLC of Philadelphia,
PA; Comcast Holdings Corporation of
Philadelphia, PA; Comcast Shared
Services, LLC of Chicago, IL;
Technicolor SA of Issy-les-Moulineaux,
France; Technicolor USA, Inc. of
Indianapolis, IN; Technicolor
Connected Home USA LLC of
Indianapolis, IN; Pace Ltd. of Saltaire,
England (now ARRIS Global Ltd.); Pace
Americas, LLC of Boca Raton, FL;
ARRIS International plc of Suwanee,
GA; ARRIS Group Inc. of Suwanee, GA;
ARRIS Technology, Inc. of Horsham,
PA; ARRIS Enterprises Inc. of Suwanee,
GA (now ARRIS Enterprises LLC); and
ARRIS Solutions, Inc. of Suwanee, GA.
81 FR at 33548. The Office of Unfair
Import Investigations is not a party to
this investigation. Id.
Prior to the evidentiary hearing, Rovi
withdrew its allegations as to certain
patent claims. See Notice of
Commission Determination Not to
Review an Initial Determination
Granting Complainants’ Motion to
Terminate Certain Asserted Patent
Claims from the Investigation (Oct. 21,
2016); Notice of Commission
PO 00000
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Sfmt 4703
Determination Not to Review an Initial
Determination Granting Complainants’
Motion to Terminate Certain Asserted
Patent Claims from the Investigation
(Dec. 2, 2016); Notice of Commission
Determination Not to Review an Initial
Determination Terminating U.S. Patent
No. 8,768,147 from the Investigation
(Dec. 28, 2016). Rovi proceeded at the
evidentiary hearing on the following
patents and claims: Claims 7, 18, and 40
of the ’556 patent; claims 1, 2, 14, and
17 of the ’263 patent; claims 1, 5, 10,
and 15 of the ’801 patent; claims 12, 17,
and 18 of the ’871 patent; claims 1, 3,
5, 9, 10, 14, and 18 of the ’413 patent;
and claims 1, 10, 13, and 22 of the ’512
patent.
On May 26, 2017, the ALJ issued the
Final ID, which finds a violation of
section 337 by the respondents in
connection with the asserted claims of
the ’263 and ’413 patents. The Final ID
finds no violation of section 337 in
connection with the asserted claims of
the ’556, ’801, ’871, and ’512 patents.
The ALJ recommended that, subject to
any public interest determinations of
the Commission, the Commission
should issue a limited exclusion order
directed to the accused products, that
cease and desist orders issue to the
respondents, and that the Commission
should not require any bond during the
Presidential review period.
On June 12, 2017, Rovi and the
respondents filed petitions for review of
the Final ID. The respondents petitioned
thirty-two of the Final ID’s conclusions,
and Rovi petitioned seven of the Final
ID’s conclusions. On June 20, 2017, the
parties filed responses to the petitions
for review. On July 11, 2017, Rovi and
the respondents filed statements on the
public interest. The Commission also
received numerous comments on the
public interest from the public.
On June 26, 2017, Respondents filed
a motion requesting leave to file a reply
to Rovi’s response to Respondents’
petition for review, and on June 29,
2017, Rovi filed a response in
opposition to that motion. That motion
is denied.
On July 5, 2017, Rovi and the ARRIS
respondents filed a Joint Unopposed
Motion for, and Memorandum in
Support of, Leave to Amend the
Complaint and Notice of Investigation to
Correct Corporate Names of Two ARRIS
Respondents. The motion indicates that
ARRIS Enterprises, Inc. has changed its
name to ARRIS Enterprises LLC and that
Pace Ltd. has changed its name to
ARRIS Global Ltd. That motion is
granted.
On July 25, 2017, Comcast submitted
with the Office of the Secretary a letter
including supplemental disclosure and
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representations. On July 31, 2017, Rovi
submitted with the Office of the
Secretary a response thereto, which
asserted that ‘‘this new evidence
confirms that there is no reason for the
Commission to review’’ certain of the
Final ID’s conclusions. On August 9,
2017, Comcast filed a response to Rovi’s
submission. The Commission has
determined to reopen the evidentiary
record and accept the supplemental
disclosure, response thereto, and reply
to the response.
Having examined the record in this
investigation, including the Final ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the Final ID in part. In
particular, the Commission has
determined to review the following:
(1) The Final ID’s determination that
Comcast is an importer of the accused
products (Issue 1 in Respondents’
Petition for Review).
(2) The Final ID’s determination that
Comcast has not sold accused products
in the United States after the
importation of those products into the
United States (the issue discussed in
section III of Rovi’s Petition for Review).
(3) The Final ID’s determination that
the accused Legacy products are
‘‘articles that infringe’’ (Issue 2 in
Respondents’ Petition for Review).
(4) The issue of whether the X1
products are ‘‘articles that infringe’’
(Issue 3 in Respondents’ Petition for
Review), the issue of direct infringement
of the ’263 and ’413 patents by the X1
accused products (Issue 5 in
Respondents’ Petition for Review), and
the issue of ‘‘the nature and scope of the
violation found’’ (the issue discussed in
section X of Respondents’ Petition for
Review).
(5) The issue of whether Comcast’s
two alternative designs infringe the ’263
and ’413 patents (Issue 4 in
Respondents’ Petition for Review).
(6) The Final ID’s claim construction
of ‘‘cancel a function of the second
tuner to permit the second tuner to
perform the requested tuning operation’’
in the ’512 patent, and the Final ID’s
infringement determinations as to that
patent (Issue 26 in Respondents’
Petition for Review).
(7) The Final ID’s conclusion that the
asserted claims of the ’512 patent are
invalid as obvious (the issue discussed
in section VI.B.4 of Rovi’s Petition for
Review).
(8) The issue of whether the ARRISRovi Agreement provides a defense to
the allegations against the ARRIS
respondents (the issue discussed in
section XI of Respondents’ Petition for
Review).
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18:33 Aug 15, 2017
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(9) The Final ID’s conclusion that
Rovi did not establish the economic
prong of the domestic industry
requirement based on patent licensing
(the issue discussed in section IV of
Rovi’s Petition for Review).
The Commission has determined to
not review the remainder of the Final
ID. The Commission has further
determined that Respondents’ petition
of the Final ID’s determinations is
improper as to the following issues: (1)
The representative accused X1 products
for the ’263, ’413, and ’801 patents; (2)
the induced infringement of the ’263
and ’413 patents; and (3) the eligibility
under 35 U.S.C. 101 of the ’512 patent.
See 19 CFR 210.43(b)(2) (‘‘Petitions for
review may not incorporate statements,
issues, or arguments by reference.’’).
Those assignments of error are therefore
waived.
The parties are requested to brief their
positions with reference to the
applicable law and the evidentiary
record regarding the questions provided
below:
(1) As to whether the Legacy accused
products are ‘‘articles that infringe’’
(Issue 2 in Respondents’ Petition for
Review):
Has Rovi shown (or has Comcast
conceded) that a Legacy accused
product that infringes the asserted
patents (and if so, which patents) has
been imported or re-imported by any
respondent or that respondent’s
agent(s)?
(2) As to whether the X1 products are
‘‘articles that infringe’’ (Issue 3 in
Respondents’ Petition for Review), the
issue of direct infringement of the ’263
and ’413 patents by the X1 accused
products (Issue 5 in Respondents’
Petition for Review), and the issue of
‘‘the nature and scope of the violation
found’’ (the issue discussed in section X
of Respondents’ Petition for Review):
a. For purposes of giving rise to a
section 337 violation and whether the
X1 STBs are ‘‘articles that infringe,’’ is
the importation of and infringement
through the use of the X1 STBs
distinguishable from the importation of
and infringement through the use of the
scanners in Suprema v. Int’l Trade
Comm’n, 796 F.3d 1338 (Fed. Cir.
2015)? For example, is Suprema
distinguishable because the imported
X1 STBs require cooperation with
hardware (a mobile device and
Comcast’s servers) that is not imported
by the respondents for an act of
infringement to occur? Note that, in
Suprema, the imported scanners were
‘‘not standalone products,’’ but rather,
to function, the scanners had to ‘‘be
connected to a computer, and that
computer must have custom-developed
PO 00000
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Fmt 4703
Sfmt 4703
38935
software installed and running.’’ 796
F.3d at 1341–42.
b. Please discuss any relevant
statutory language, legislative history,
case law, and Commission precedent
that does or does not support
interpreting the language of section 337
such that the X1 STBs are ‘‘articles that
infringe’’ and that a violation arises
from the importation or sale in the
United States after importation of the X1
STBs.
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 one or
more cease and desist orders 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 cease and desist
orders 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 parties and the public are
requested to brief their positions
regarding the public interest. The
Commission is particularly interested in
responses to the following:
Should the Commission tailor any
remedy to mitigate any harm considered
by the public interest factors? Please
provide any support, factual or
otherwise, and relate that support to
specific public interest factors.
If the Commission orders some form
of remedy, the U.S. Trade
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38936
Federal Register / Vol. 82, No. 157 / Wednesday, August 16, 2017 / Notices
asabaliauskas on DSKBBXCHB2PROD with NOTICES
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. Complainants are
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainants are also
requested to state the date that the
patents expire and the HTSUS numbers
under which the accused products are
imported. Complainants are further
requested to supply the names of known
importers of the products at issue in this
investigation. The written submissions
and proposed remedial orders must be
filed no later than close of business on
August 24, 2017. Reply submissions
must be filed no later than the close of
business on August 31, 2017. No further
submissions on any of 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–1001’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
secretary/documents/handbook_on_
filing_procedures.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
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18:33 Aug 15, 2017
Jkt 241001
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. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this Investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. appendix 3; or (ii) by U.S.
government employees and contract
personnel, solely for cybersecurity
purposes (all contract personnel will
sign appropriate nondisclosure
agreements). All nonconfidential
written submissions will be available for
public inspection at the Office of the
Secretary and on EDIS.
This action is taken under the
authority of 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: August 10, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017–17283 Filed 8–15–17; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
Notice of Receipt of Complaint;
Solicitation of Comments Relating to
the Public Interest
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has received a complaint
entitled Certain Wireless Audio Systems
and Components Thereof, DN 3242; the
Commission is soliciting comments on
any public interest issues raised by the
complaint or complainant’s filing
pursuant to the Commission’s Rules of
Practice and Procedure.
FOR FURTHER INFORMATION CONTACT: Lisa
R. Barton, Secretary to the Commission,
U.S. International Trade Commission,
SUMMARY:
PO 00000
Frm 00062
Fmt 4703
Sfmt 4703
500 E Street SW., Washington, DC
20436, telephone (202) 205–2000. The
public version of the complaint can be
accessed on the Commission’s
Electronic Document Information
System (EDIS) at https://edis.usitc.gov,
and 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 United
States International Trade Commission
(USITC) at https://www.usitc.gov. The
public record for this investigation may
be viewed on the Commission’s
Electronic Document Information
System (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 has received a complaint
and a submission pursuant to § 210.8(b)
of the Commission’s Rules of Practice
and Procedure filed on behalf of
Broadcom Limited and Avago
Technologies General IP (Singapore)
Pte. Ltd. on August 10, 2017. The
complaint alleges 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 wireless audio
systems and components thereof. The
complaint names as respondents DTS,
Inc. of Calabasas, CA; Phorus, Inc. of
Calabasas, CA; MartinLogan, Ltd. of
Lawrence, KS; Paradigm Electronics Inc.
of Canada; Anthem Electronics, Inc. of
Canada; Wren Sound Systems, LLC of
Phoenixville, PA; McIntosh Laboratory,
Inc. of Binghamton, NY; Definitive
Technology of Owings Mills, MD; and
Polk Audio Inc. of Vista, CA. The
complainant requests that the
Commission issue a limited exclusion
order, cease and desist orders, and
impose a bond upon respondents’
alleged infringing articles during the 60day Presidential review period pursuant
to 19 U.S.C. 1337(j).
Proposed respondents, other
interested parties, and members of the
public are invited to file comments, not
to exceed five (5) pages in length,
inclusive of attachments, on any public
interest issues raised by the complaint
or § 210.8(b) filing. Comments should
address whether issuance of the relief
specifically requested by the
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Agencies
[Federal Register Volume 82, Number 157 (Wednesday, August 16, 2017)]
[Notices]
[Pages 38934-38936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17283]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1001]
Certain Digital Video Receivers and Hardware and Software
Components Thereof; Commission Determination To Review in Part a Final
Initial Determination Finding a Violation of Section 337; Schedule for
Written Submissions on the Issues Under Review and on Remedy, the
Public Interest, and Bonding; Grant of Joint Unopposed Motion for Leave
To Amend the Complaint and Notice of Investigation To Correct Corporate
Names
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (the ``Commission'') has determined to review in part the
final initial determination (``the Final ID'') issued by the presiding
administrative law judge (``ALJ'') on May 26, 2017, finding a violation
of section 337 of the Tariff Act of 1930, as amended in connection with
certain asserted patents. The Commission has also determined to deny
Respondents' motion requesting leave to file a reply to Rovi's response
to Respondents' petition for review of the Final ID. The Commission has
further determined to grant a joint unopposed motion for leave to amend
the complaint and notice of investigation to correct the corporate
names of certain respondents.
FOR FURTHER INFORMATION CONTACT: Ron Traud, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202-205-3427. 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 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, telephone 202-205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on May 26, 2016, based on a complaint filed on behalf of Rovi
Corporation and Rovi Guides, Inc. (collectively, ``Rovi''), both of San
Carlos, California. 81 FR 33547-48 (May 26, 2016). The complaint, as
amended, alleges violations of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, by reason of infringement of certain claims
of U.S. Patent No. 8,006,263 (``the '263 patent''); U.S. Patent No.
8,578,413 (``the '413 patent''); U.S. Patent No. 8,046,801 (``the '801
patent''); U.S. Patent No. 8,621,512 (``the '512 patent''); U.S. Patent
No. 8,768,147 (``the '147 patent''); U.S. Patent No. 8,566,871 (``the
'871 patent''); and U.S. Patent No. 6,418,556 (``the '556 patent'').
The complaint further alleges that a domestic industry exists. Id. at
33548.
The Commission's notice of investigation named sixteen respondents.
The respondents are Comcast Corporation of Philadelphia, PA; Comcast
Cable Communications, LLC of Philadelphia, PA; Comcast Cable
Communications Management, LLC of Philadelphia, PA; Comcast Business
Communications, LLC of Philadelphia, PA; Comcast Holdings Corporation
of Philadelphia, PA; Comcast Shared Services, LLC of Chicago, IL;
Technicolor SA of Issy-les-Moulineaux, France; Technicolor USA, Inc. of
Indianapolis, IN; Technicolor Connected Home USA LLC of Indianapolis,
IN; Pace Ltd. of Saltaire, England (now ARRIS Global Ltd.); Pace
Americas, LLC of Boca Raton, FL; ARRIS International plc of Suwanee,
GA; ARRIS Group Inc. of Suwanee, GA; ARRIS Technology, Inc. of Horsham,
PA; ARRIS Enterprises Inc. of Suwanee, GA (now ARRIS Enterprises LLC);
and ARRIS Solutions, Inc. of Suwanee, GA. 81 FR at 33548. The Office of
Unfair Import Investigations is not a party to this investigation. Id.
Prior to the evidentiary hearing, Rovi withdrew its allegations as
to certain patent claims. See Notice of Commission Determination Not to
Review an Initial Determination Granting Complainants' Motion to
Terminate Certain Asserted Patent Claims from the Investigation (Oct.
21, 2016); Notice of Commission Determination Not to Review an Initial
Determination Granting Complainants' Motion to Terminate Certain
Asserted Patent Claims from the Investigation (Dec. 2, 2016); Notice of
Commission Determination Not to Review an Initial Determination
Terminating U.S. Patent No. 8,768,147 from the Investigation (Dec. 28,
2016). Rovi proceeded at the evidentiary hearing on the following
patents and claims: Claims 7, 18, and 40 of the '556 patent; claims 1,
2, 14, and 17 of the '263 patent; claims 1, 5, 10, and 15 of the '801
patent; claims 12, 17, and 18 of the '871 patent; claims 1, 3, 5, 9,
10, 14, and 18 of the '413 patent; and claims 1, 10, 13, and 22 of the
'512 patent.
On May 26, 2017, the ALJ issued the Final ID, which finds a
violation of section 337 by the respondents in connection with the
asserted claims of the '263 and '413 patents. The Final ID finds no
violation of section 337 in connection with the asserted claims of the
'556, '801, '871, and '512 patents. The ALJ recommended that, subject
to any public interest determinations of the Commission, the Commission
should issue a limited exclusion order directed to the accused
products, that cease and desist orders issue to the respondents, and
that the Commission should not require any bond during the Presidential
review period.
On June 12, 2017, Rovi and the respondents filed petitions for
review of the Final ID. The respondents petitioned thirty-two of the
Final ID's conclusions, and Rovi petitioned seven of the Final ID's
conclusions. On June 20, 2017, the parties filed responses to the
petitions for review. On July 11, 2017, Rovi and the respondents filed
statements on the public interest. The Commission also received
numerous comments on the public interest from the public.
On June 26, 2017, Respondents filed a motion requesting leave to
file a reply to Rovi's response to Respondents' petition for review,
and on June 29, 2017, Rovi filed a response in opposition to that
motion. That motion is denied.
On July 5, 2017, Rovi and the ARRIS respondents filed a Joint
Unopposed Motion for, and Memorandum in Support of, Leave to Amend the
Complaint and Notice of Investigation to Correct Corporate Names of Two
ARRIS Respondents. The motion indicates that ARRIS Enterprises, Inc.
has changed its name to ARRIS Enterprises LLC and that Pace Ltd. has
changed its name to ARRIS Global Ltd. That motion is granted.
On July 25, 2017, Comcast submitted with the Office of the
Secretary a letter including supplemental disclosure and
[[Page 38935]]
representations. On July 31, 2017, Rovi submitted with the Office of
the Secretary a response thereto, which asserted that ``this new
evidence confirms that there is no reason for the Commission to
review'' certain of the Final ID's conclusions. On August 9, 2017,
Comcast filed a response to Rovi's submission. The Commission has
determined to reopen the evidentiary record and accept the supplemental
disclosure, response thereto, and reply to the response.
Having examined the record in this investigation, including the
Final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the Final ID in part. In
particular, the Commission has determined to review the following:
(1) The Final ID's determination that Comcast is an importer of the
accused products (Issue 1 in Respondents' Petition for Review).
(2) The Final ID's determination that Comcast has not sold accused
products in the United States after the importation of those products
into the United States (the issue discussed in section III of Rovi's
Petition for Review).
(3) The Final ID's determination that the accused Legacy products
are ``articles that infringe'' (Issue 2 in Respondents' Petition for
Review).
(4) The issue of whether the X1 products are ``articles that
infringe'' (Issue 3 in Respondents' Petition for Review), the issue of
direct infringement of the '263 and '413 patents by the X1 accused
products (Issue 5 in Respondents' Petition for Review), and the issue
of ``the nature and scope of the violation found'' (the issue discussed
in section X of Respondents' Petition for Review).
(5) The issue of whether Comcast's two alternative designs infringe
the '263 and '413 patents (Issue 4 in Respondents' Petition for
Review).
(6) The Final ID's claim construction of ``cancel a function of the
second tuner to permit the second tuner to perform the requested tuning
operation'' in the '512 patent, and the Final ID's infringement
determinations as to that patent (Issue 26 in Respondents' Petition for
Review).
(7) The Final ID's conclusion that the asserted claims of the '512
patent are invalid as obvious (the issue discussed in section VI.B.4 of
Rovi's Petition for Review).
(8) The issue of whether the ARRIS-Rovi Agreement provides a
defense to the allegations against the ARRIS respondents (the issue
discussed in section XI of Respondents' Petition for Review).
(9) The Final ID's conclusion that Rovi did not establish the
economic prong of the domestic industry requirement based on patent
licensing (the issue discussed in section IV of Rovi's Petition for
Review).
The Commission has determined to not review the remainder of the
Final ID. The Commission has further determined that Respondents'
petition of the Final ID's determinations is improper as to the
following issues: (1) The representative accused X1 products for the
'263, '413, and '801 patents; (2) the induced infringement of the '263
and '413 patents; and (3) the eligibility under 35 U.S.C. 101 of the
'512 patent. See 19 CFR 210.43(b)(2) (``Petitions for review may not
incorporate statements, issues, or arguments by reference.''). Those
assignments of error are therefore waived.
The parties are requested to brief their positions with reference
to the applicable law and the evidentiary record regarding the
questions provided below:
(1) As to whether the Legacy accused products are ``articles that
infringe'' (Issue 2 in Respondents' Petition for Review):
Has Rovi shown (or has Comcast conceded) that a Legacy accused
product that infringes the asserted patents (and if so, which patents)
has been imported or re-imported by any respondent or that respondent's
agent(s)?
(2) As to whether the X1 products are ``articles that infringe''
(Issue 3 in Respondents' Petition for Review), the issue of direct
infringement of the '263 and '413 patents by the X1 accused products
(Issue 5 in Respondents' Petition for Review), and the issue of ``the
nature and scope of the violation found'' (the issue discussed in
section X of Respondents' Petition for Review):
a. For purposes of giving rise to a section 337 violation and
whether the X1 STBs are ``articles that infringe,'' is the importation
of and infringement through the use of the X1 STBs distinguishable from
the importation of and infringement through the use of the scanners in
Suprema v. Int'l Trade Comm'n, 796 F.3d 1338 (Fed. Cir. 2015)? For
example, is Suprema distinguishable because the imported X1 STBs
require cooperation with hardware (a mobile device and Comcast's
servers) that is not imported by the respondents for an act of
infringement to occur? Note that, in Suprema, the imported scanners
were ``not standalone products,'' but rather, to function, the scanners
had to ``be connected to a computer, and that computer must have
custom-developed software installed and running.'' 796 F.3d at 1341-42.
b. Please discuss any relevant statutory language, legislative
history, case law, and Commission precedent that does or does not
support interpreting the language of section 337 such that the X1 STBs
are ``articles that infringe'' and that a violation arises from the
importation or sale in the United States after importation of the X1
STBs.
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 one or more cease and desist orders 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 cease and desist orders 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 parties and the public are requested to brief their positions
regarding the public interest. The Commission is particularly
interested in responses to the following:
Should the Commission tailor any remedy to mitigate any harm
considered by the public interest factors? Please provide any support,
factual or otherwise, and relate that support to specific public
interest factors.
If the Commission orders some form of remedy, the U.S. Trade
[[Page 38936]]
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.
Complainants are requested to submit proposed remedial orders for the
Commission's consideration. Complainants are also requested to state
the date that the patents expire and the HTSUS numbers under which the
accused products are imported. Complainants are further requested to
supply the names of known importers of the products at issue in this
investigation. The written submissions and proposed remedial orders
must be filed no later than close of business on August 24, 2017. Reply
submissions must be filed no later than the close of business on August
31, 2017. No further submissions on any of 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-1001'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.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. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. appendix 3; or (ii) by U.S.
government employees and contract personnel, solely for cybersecurity
purposes (all contract personnel will sign appropriate nondisclosure
agreements). All nonconfidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
This action is taken under the authority of 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: August 10, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-17283 Filed 8-15-17; 8:45 am]
BILLING CODE 7020-02-P