In the Matter of Certain Personal Computers, Server Computers, and Components Thereof; Notice of Commission Decision To Review an Initial Determination Finding a Violation of Section 337 of the Tariff Act of 1930; Request for Written Submissions on the Issues Under Review, and on Remedy, the Public Interest, and Bonding, 61157-61159 [05-20976]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 70, Number 202 (Thursday, October 20, 2005)]
[Notices]
[Pages 61157-61159]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-20976]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-509]


In the Matter of Certain Personal Computers, Server Computers, 
and Components Thereof; Notice of Commission Decision To Review an 
Initial Determination Finding a Violation of Section 337 of the Tariff 
Act of 1930; Request for Written Submissions on the Issues Under 
Review, and on Remedy, the 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 its entirety the presiding 
administrative law judge's (``ALJ'') initial determination (``ID'') in 
the above-captioned investigation finding a violation of section 337 of 
the Tariff Act of 1930. Notice is also hereby given that the Commission 
is requesting briefing on the issues under review, and on the issues of 
remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Rodney Maze, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3065. 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

[[Page 61158]]

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: This patent-based section 337 investigation 
was instituted by the Commission on June 7, 2004, based on a complaint 
filed by Hewlett-Packard Development Company, L.P. of Houston, Texas 
and Hewlett-Packard Company of Palo Alto, California (collectively 
``HP''). 69 FR 31844 (June 7, 2004). The complainants alleged 
violations of section 337 in the importation and sale of certain 
personal computers, server computers, and components thereof, by reason 
of infringement of seven U.S. patents. The complainants named Gateway, 
Inc. of Poway, California (Gateway) as the only respondent. Claim 1 of 
U.S. Patent No. 5,737,604, claims 1, 3, 4, 6-8, 18, 20, 21, 23-25, 35, 
37, 38, and 40-42 of U.S. Patent No. 6,138,184 (``the `184 patent''), 
claim 9 of U.S. Patent No. 5,892,976 (``the `976 patent''), and claim 1 
of U.S. Patent No. 6,085,318 (``the `318 patent'') remain at issue in 
this investigation.
    On May 24, 2005, the ALJ issued an ID (Order No. 45) extending the 
target date of the investigation by three months or until December 8, 
2005. No party petitioned for review of the ID. The Commission has 
determined not to review this ID.
    On August 8, 2005, the ALJ issued his final ID on violation and his 
recommended determination on remedy and bonding. The final ID 
incorporates by reference Order No. 15 setting forth the applicable 
construction of the claim terms at issue in this investigation. The ALJ 
found a violation of section 337 by reason of infringement of claims 7, 
24, and 41 of the `184 patent and claim 9 of the `976 patent. The ALJ 
did not find a violation of section 337 with respect to the other two 
patents. Petitions for review were filed by HP, Gateway, and the 
Commission investigative attorney (IA) on August 18, 2005.
    On August 23, 2005, the Commission issued a notice indicating that 
it had determined to extend the deadline for determining whether to 
review the final ID by 14 days, i.e., from September 22, 2005, until 
October 6, 2005. On August 25, 2005, all parties filed responses to the 
petitions. On October 6, 2005, the Commission issued a notice 
indicating that it had determined to extend the deadline for 
determining whether to review the final ID by 8 days, i.e., from 
October 6, 2005, until October 14, 2005.
    Having examined the record in this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the ID in its entirety. In 
connection with its review, the Commission requests briefing limited to 
the following questions:
    (1) With respect to the ALJ's infringement finding regarding the 
`184 and `976 patents, the extent to which installation of parallel 
port driver software is required to enable DMA-controlled transfers to 
the parallel port, and the implications for infringement analysis and 
for the technical prong of the domestic industry requirement;
    (2) With respect to the ALJ's infringement finding regarding claim 
1 of the `318 patent, whether use of an El Torito CD-ROM is required 
for the accused devices to meet the limitations of claim 1 of the `318 
patent, and the implications for infringement analysis and for the 
technical prong of the domestic industry requirement;
    (3) Whether there is a factual or legal distinction, for purposes 
of infringement analysis, between the installation of software in 
relation to the parallel output port limitation of the `184 and `976 
patents and the use of an El Torito CD-ROM in relation to the boot 
memory limitation of claim 1 of the `318 patent; and
    (4) Whether the holdings of Jazz Photo Corp v. International Trade 
Commission, 264 F.3d 1094, 1105 (Fed. Cir. 2001), and Fuji Photo Film 
Co. Ltd. v. Jazz Photo Corp., 394 F.3d 1368, 1376 (Fed. Cir 2005), 
concerning the first sale doctrine and patent exhaustion, control where 
the patents at issue are the subject of worldwide licenses, unlike the 
situation in the Jazz and Fuji cases.
    In connection with the final disposition of this investigation, the 
Commission may issue (1) an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) a 
cease and desist order that could result in the respondent being 
required to cease and desist from engaging in unfair action 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 
are either adversely affecting it or likely to do so. For background, 
see In the Matter of 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.
    If the Commission orders some form of remedy, the President has 60 
days to approve or disapprove the Commission's action. During this 
period, the subject articles would be entitled to enter the United 
States under a 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.
    Written Submissions: Submissions should be concise and thoroughly 
referenced to the record in this investigation. The parties to the 
investigation, interested government agencies, and any other interested 
persons are encouraged to file written submissions on the issues under 
review and the issues of remedy, the public interest, and bonding. Such 
submissions should address the ALJ's recommended determination on 
remedy and bonding. Complainant and the Commission investigative 
attorney are also requested to submit proposed remedial orders for the 
Commission's consideration. Complainant is further requested to state 
the expiration date of the `184 and `976 patents and the HTSUS numbers 
under which the infringing products are imported. The main written 
submissions and proposed remedial orders must be filed no later than 
close of business on October 24, 2005. Response submissions must be 
filed no later than close of business on October 31, 2005. No further 
submissions will be permitted unless otherwise ordered by the 
Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof with the Office of the Secretary on or 
before the deadlines stated above. Any person desiring to

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submit a document (or portions thereof) to the Commission in confidence 
must request confidential treatment unless the information has already 
been granted such treatment during the proceedings. All such requests 
should be directed to the Secretary of the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 210.5. Documents for which confidential treatment 
is granted by the Commission will be treated accordingly. All non-
confidential written submissions will be available for public 
inspection at the Office of the Secretary.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and Sec. Sec.  210.42, 
210.43, and 210.50 of the Commission's Interim Rules of Practice and 
Procedure (19 CFR 210.42, 210.43, and 210.50).

    Issued: October 14, 2005.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-20976 Filed 10-19-05; 8:45 am]
BILLING CODE 7020-02-P