In the Matter of Systems for Detecting and Removing Viruses or Worms, Components Thereof, and Products Containing Same; Consolidated Enforcement and Advisory Opinion Proceeding, 16827-16828 [06-3215]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 71, Number 64 (Tuesday, April 4, 2006)]
[Notices]
[Pages 16827-16828]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3215]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-510]


In the Matter of Systems for Detecting and Removing Viruses or 
Worms, Components Thereof, and Products Containing Same; Consolidated 
Enforcement and Advisory Opinion Proceeding

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 not to review an initial determination 
(``ID'') issued by the presiding administrative law judge (``ALJ'') 
terminating the above-captioned proceeding. The Commission has also 
determined to rescind the limited exclusion and cease and desist orders 
previously issued in the underlying investigation and to vacate a 
summary ID previously issued in the proceeding.

FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 202-205-3104. Copies of the public 
version of the ID and all nonconfidential 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. Hearing-impaired persons 
are advised that information on this matter can be obtained by 
contacting the Commission's TDD terminal on 202-205-1810. General 
information concerning the Commission may also be obtained by accessing 
its Internet server

[[Page 16828]]

(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.

SUPPLEMENTARY INFORMATION: This investigation was instituted by the 
Commission on June 3, 2004, based on a complaint filed by Trend Micro 
Inc. (``Trend Micro'') of Cupertino, California under section 337 of 
the Tariff Act of 1930, 19 U.S.C. 1337. 69 FR 32044-45 (June 8, 2004). 
The complaint alleged violations of section 337 in the importation into 
the United States, the sale for importation into the United States, or 
the sale within the United States after importation of certain systems 
for detecting and removing computer viruses or worms, components 
thereof, and products containing same by reason of infringement of 
claims 1-22 of U.S. Patent No. 5,623,600 (``the `600 patent''). The 
notice of investigation named Fortinet, Inc., of Sunnyvale, California 
(``Fortinet'') as the sole respondent.
    On May 9, 2005, the ALJ issued his final ID in this investigation 
finding a violation of section 337 based on his findings that claims 4, 
7, 8, and 11-15 of the `600 patent are not invalid or unenforceable, 
and are infringed by respondent's products. On July 8, 2005, the 
Commission issued notice that it had determined not to review the ALJ's 
final ID on violation, thereby finding a violation of section 337. 70 
FR 40731 (July 14, 2005). The Commission also requested briefing on the 
issues of remedy, the public interest, and bonding. Id. Submissions on 
the issues of remedy, the public interest, and bonding were filed by 
all parties. On August 8, 2005, the Commission terminated the 
investigation, and issued a limited exclusion order and a cease and 
desist order covering respondent's systems for detecting and removing 
computer viruses or worms, components thereof, and products containing 
same that infringe claims 4, 7, 8, and 11-15 of the `600 patent.
    On September 13, 2005, complainant Trend Micro filed a complaint 
for enforcement of the Commission's remedial orders. On October 7, 
2005, the Commission determined to institute a formal enforcement 
proceeding to determine whether Fortinet was in violation of the 
Commission's cease and desist order issued in the investigation and 
what, if any, enforcement measures were appropriate. 70 FR 76076 
(December 22, 2005).
    On October 26, 2005, Fortinet filed a request for an advisory 
opinion under Commission rule 210.79, 19 CFR 210.79, that would declare 
that Fortinet's anti-virus ``FortiGate'' products incorporating 
Fortinet's newly redesigned anti-virus software does not infringe 
claims 4, 7, 8, and 11-15 of the `600 patent and, therefore, is not 
covered by the Commission's cease and desist and limited exclusion 
orders, issued on August 8, 2005. On December 16, 2005, the Commission 
determined to institute an advisory opinion proceeding to determine 
whether Fortinet's redesigned anti-virus software infringes the 
asserted claims of the `600 patent.
    On January 11, 2006, the presiding ALJ consolidated the enforcement 
proceeding and advisory opinion proceeding.
    On December 16, 2005, Trend Micro moved for summary determination 
that Fortinet had violated sections III(B), III(D), and III(E) of the 
cease and desist order. On January 12, 2006, the ALJ issued an ID 
(Order No. 26) granting Trend Micro's motion for summary determination 
that Fortinet violated section III(B) of the cease and desist order. On 
February 9, 2006, the Commission determined not to review Order No. 26.
    On December 21, 2005, Fortinet filed a request for an additional 
advisory opinion concerning the so-called Clearswift license, which it 
later withdrew on February 15, 2006.
    On January 27, 2006, Trend Micro and Fortinet entered into a 
settlement agreement that resolves their dispute before the Commission. 
On February 14, 2006, Trend Micro and Fortinet filed a joint motion to 
terminate the consolidated proceedings on the basis of the settlement 
agreement. The joint motion included a petition to rescind the limited 
exclusion and cease and desist orders issued in the investigation, and 
a petition to vacate Order No. 26. On February 27, 2006, the Commission 
investigative attorney filed a response in support of the joint motion 
to terminate and in support of the joint petitions to rescind the 
limited exclusion and cease and desist orders and to vacate Order No. 
26.
    On February 28, 2006, the ALJ issued an ID (Order No. 31) granting 
the joint motion to terminate the consolidated enforcement and advisory 
opinion proceedings based on the settlement agreement. The ALJ also 
recommended that the Commission rescind the limited exclusion order and 
cease and desist order issued in the investigation and vacate Order No. 
26. No party petitioned for review of the ID.
    The Commission has determined not to review the subject ID granting 
the parties' joint motion to terminate the consolidated enforcement and 
advisory opinion proceeding. Additionally, the Commission has 
determined that the parties' settlement agreement satisfies the 
requirement of section 337(k) and Commission rule 210.76(a)(1), 19 CFR 
210.76(a)(1), for changed conditions of fact or law and has therefore 
issued an order rescinding the limited exclusion order and cease and 
desist order previously issued by the Commission in the underlying 
investigation. Finally, in view of specific terms in the settlement 
agreement, the Commission has determined to vacate Order No. 26.
    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 sections 210.42 and 210.76 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42 and 210.76).

    Issued: March 29, 2006.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 06-3215 Filed 4-3-06; 8:45 am]
BILLING CODE 7020-02-P