In the Matter of Certain Probe Card Assemblies, Components Thereof and Certain Tested DRAM and NAND Flash Memory Devices and Products Containing Same; Notice of Commission Determination To Review a Final Initial Determination in Part and Set a Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 47822-47823 [E9-22381]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Notices]
[Pages 47822-47823]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-22381]



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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-621]


In the Matter of Certain Probe Card Assemblies, Components 
Thereof and Certain Tested DRAM and NAND Flash Memory Devices and 
Products Containing Same; Notice of Commission Determination To Review 
a Final Initial Determination in Part and Set a Schedule for Filing 
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 part the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on June 29, 2009, in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3116. 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 on (202) 205-1810.

SUPPLEMENTARY INFORMATION: This investigation was instituted on 
December 19, 2007, based on a complaint filed by FormFactor, Inc. 
(``FormFactor'') of Livermore, California. The complaint alleged 
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 probe 
card assemblies, components thereof, and certain tested DRAM and NAND 
flash memory devices and products containing same by reason of 
infringement of certain claims of U.S. Patent Nos. 5,994,152; 6,509,751 
(``the `751 patent''); 6,615,485; 6,624,648 (``the `648''patent); 
7,168,162 (``the `162 patent''); and 7,225,538. The complaint named 
Micronics Japan Co., Ltd.; MJC Electronics Corp.; Phicom Corporation; 
and Phiam Corporation as respondents (collectively, ``Respondents''). 
Subsequently, the `162 patent was terminated from the investigation.
    On December 5, 2008, respondents Phicom Corp. and Phiam Corp., 
(collectively, ``Phicom'') jointly filed a motion for partial summary 
determination that claims 20 and 34 of the `648 patent are invalid as 
indefinite under 35 U.S.C. 112. On February 11, 2009, the ALJ issued an 
ID by Order No. 46. The subject ID states that ``Phicom's motion * * * 
for summary determination that the `648 patent is invalid is * * * 
granted.'' The ID determines that claims 20 and 34, and any asserted 
claims depending therefrom, are invalid. Complainant FormFactor filed a 
petition for review of Order No. 46, which Respondents and the 
Commission investigative attorney oppose. On March 11, 2009, the 
Commission determined to review Order No. 46.
    The evidentiary hearing in this investigation was held from 
February 24, 2009 through March 6, 2009. On June 29, 2009, the ALJ 
issued an Initial Determination on Violation of Section 337 and 
Recommended Determination on Remedy and Bond, finding no violation of 
section 337. All parties to this investigation, including the 
Commission investigative attorney, filed timely petitions for review of 
various portions of the final ID, as well as timely responses to the 
petitions.
    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 part. In particular, 
the Commission has determined to review: (1) The ID's finding that 
Japanese Patent Application Publication H10-31034 to Amamiya et al. 
(``Amamiya'' or RX-166) does not anticipate the asserted claims of the 
`751 patent under 35 U.S.C. 102; (2) the ID's conclusion of law 
regarding non-infringement of the `751 patent by Phicom's accused 
products; (3) the ID's conclusion that no analysis of the validity of 
the asserted claims that depend from claim 21 of the `152 patent is 
needed. The Commission has determined not to review the remainder of 
the final ID.
    On review, the Commission requests the parties to brief their 
positions on the issues under review with reference to the applicable 
law and the evidentiary record. The Commission is particularly 
interested in responses to the following questions:

    (1) With respect to the `751 patent:
    (a) What, if any, limitations are missing from the Amamiya 
reference such that it does not render the asserted claims of the `751 
patent invalid as anticipated?
    (b) Is there support for the Commission investigative attorney's 
and Phicom's argument that Amamiya anticipates the asserted claims of 
the `751 patent, inter alia, by inherency? In answering this question, 
address paragraphs 0012 and 0013 on p. 6/8 of Amamiya.
    (c) Is the ID's conclusion that there has been no violation of 
section 337 with respect to the `751 patent supported by its own 
findings?
    (2) With respect to the `152 patent:
    (a) Is the ID's statement that ``no analysis of the invalidity 
arguments related to anticipation and obviousness of the dependent 
claims will be made,'' ID at 191, consistent with the proper analysis 
under patent law? If not, what, if any, impact would such an error have 
on the ID's validity and infringement analyses as to the `152 patent?
    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 are 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 
(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 orders would have on (1) The 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S.

[[Page 47823]]

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. The Commission is 
therefore interested in receiving submissions concerning the amount of 
the bond that should be imposed.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review. The submissions 
should be concise and thoroughly referenced to the record in this 
investigation. 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 and the Commission 
investigative attorney are also requested to submit proposed remedial 
orders for the Commission's consideration. Complainant is further 
requested to provide the expiration date of the `751 patent and state 
the HTSUS number under which the accused articles are imported. The 
written submissions and proposed remedial orders must be filed no later 
than the close of business on September 25, 2009. Reply submissions 
must be filed no later than the close of business on October 2, 2009. 
No further submissions on these issues will be permitted unless 
otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
(or portion 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 section 201.6 of the Commission's Rules of Practice and 
Procedure, 19 CFR 201.6. Documents for which confidential treatment by 
the Commission is sought will be treated accordingly. All 
nonconfidential written submissions will be available for public 
inspection at the Office of the Secretary.
    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-.46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-.46).

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
    Issued: September 14, 2009.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E9-22381 Filed 9-16-09; 8:45 am]
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