In the Matter of Certain Mems Devices and Products Containing Same; Notice of Commission Decision To Review-in-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions Regarding Remedy, Bonding, and the Public Interest, 13433-13434 [2011-5673]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Notices]
[Pages 13433-13434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5673]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-700]


In the Matter of Certain Mems Devices and Products Containing 
Same; Notice of Commission Decision To Review-in-Part a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions Regarding Remedy, Bonding, and the Public Interest

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 a final initial 
determination (``ID'') of the presiding administrative law judge 
(``ALJ'') finding a violation of section 337 in the above-captioned 
investigation, and is requesting written submissions regarding remedy, 
bonding, and the public interest.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-2310. 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: The Commission instituted this investigation 
on December 31, 2009, based on a complaint filed on December 1, 2009, 
by Analog Devices, Inc. (``Analog Devices'') of Norwood, Massachusetts. 
75 FR 449-50 (Jan. 5, 2010). The complaint, as supplemented, alleged 
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 microelectromechanical systems (``MEMS'') devices and products 
containing the same by reason of infringement of certain claims of U.S. 
Patent Nos. 7,220,614 (``the `614 patent'') and 7,364,942 (``the `942 
patent''). The complaint further alleged that an industry in the United 
States exists as required by subsection (a)(2) of section 337. The 
complaint named as respondents Knowles Electronics LLC of Itasca, 
Illinois and Mouser Electronics, Inc. of Mansfield, Texas.
    On December 23, 2010, the ALJ issued his final ID finding a 
violation of section 337 by respondents with respect to the `942 
patent, and which also included his recommendation on remedy and 
bonding during the period of Presidential review. The ALJ found no 
section 337 violation with respect to the `614 patent due to non-
infringement of the asserted claims. On January 21, 2011, the 
Commission issued notice of its determination to extend the deadline to 
March 7, 2001, for determining whether to review the final ID. On 
January 18, 2011, Analog Devices, respondents, and the Commission 
investigative attorney (``IA'') filed petitions for review of the final 
ID, and each party filed responses to the other parties' petitions on 
January 26, 2011. On February 4, 2011, Analog Devices and respondents 
each filed submissions on the public interest.
    Upon considering the parties' filings, the Commission has 
determined to review-in-part the ID. Specifically, the Commission has 
determined to review: (1) The ALJ's construction of the claim term 
``oven'' relating to both the `614 and `942 patents; (2) the ALJ's 
construction of the claim term ``sawing'' relating to both the `614 and 
`942 patents; (3) the ALJ's determination that the accused process does 
not infringe, either literally or under the doctrine of equivalents, 
claims 12, 15, 31-32, 34-35, and 38-39 of the `614 patent or claim 1 of 
the `942 patent; (4) the ALJ's finding that U.S. Patent No. 5,597,767 
(``the `767 patent'') does not incorporate by reference U.S. Patent 
Nos. 5,331,454 and 5,512,374 (``the `374 patent''); (5) the ALJ's 
finding that claims 2-6 and 8 are infringed by the accused process; (6) 
the ALJ's findings that claims 34-35 and 38-39 of the `614 patent, and 
claims 2-6 and 8 of the `942 patent, are not anticipated, under 35 
U.S.C. Sec.  102(a), by the `767 patent or the `374 patent; (7) the 
ALJ's findings that claims 34-35 and 38-39 of the `614 patent are not 
obvious, under 35 U.S.C. Sec.  103, in view of the `767 patent and the 
Sakata et al. prior art reference; and (8) the ALJ's finding that the 
technical prong of the domestic industry requirement has been satisfied 
as to both the `614 and `942 patents. The Commission has determined not 
to review the remainder of the ID.
    On review, with respect to violation, the parties are requested to 
submit briefing limited to the following issues:
    (1) In arguing that the term ``oven'' should be construed as ``a 
system that includes a heated chamber,'' is it the contention of 
Complainant and the IA that the system includes elements such as a 
reservoir, heaters on the reservoir, a delivery line that connects the 
reservoir and the deposition chamber, a vacuum line, a nitrogen line, 
and a device (such as a computer) for programming the temperature, gas 
pressure, etc., of the oven? See Complainant Analog's Contingent 
Petition at 25 and the IA's Contingent Petition at 6.
    (2) If the term ``oven'' as it appears in claim 1 of the `942 was 
construed broadly to encompass the entire system, would the claim cover 
a method in which the wafer is inserted into, and the anti-stiction 
compound is heated within, any portion of the system, including the 
elements listed in the question above, such as a heater, delivery line, 
or a device for programming? In your response, please address whether 
the Commission should construe the disputed term in light of the 
context supplied by the claim, which indicates, for example, that the 
anti-stiction compound is heated within said oven.

[[Page 13434]]

    (3) If the term ``oven'' is construed broadly, then is the claim 
invalid based on a failure to satisfy the written description and 
enablement requirements? For example, does the specification disclose 
that the anti-stiction compound can be heated within a vacuum line or a 
device for programming?
    (4) The ALJ determined that the `374 patent did not disclose the 
limitation ``exposing said wafer, substantially at room temperature, to 
the vapor of a compound having anti-stiction properties'' of claim 34 
of the '614 patent, finding that a table found at column 5 of the `374 
does not disclose a ``process whereby the anti-stiction compound is 
deposited on a wafer `substantially at room temperature.' '' ID at 108-
09. Can the required disclosure be found in the `374 at cols. 4:59-
5:62?
    In addressing these issues, the parties are requested to make 
specific reference to the evidentiary record and to cite relevant 
authority.
    In connection with the final disposition of this investigation, the 
Commission may issue an order that results in the exclusion of the 
subject articles from entry into the United States. 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 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).
    When 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, particularly in the context of the 
ALJ's recommendations on remedy.
    When 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 section 337(j), 19 U.S.C. 
1337(j) and the 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 if 
a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review in response to 
the above-referenced questions. 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, and such 
submissions should address the recommended determination by the ALJ on 
remedy and bonding. The complainant and the Commission investigative 
attorney are also requested to submit proposed remedial orders for the 
Commission's consideration. Complainant is also requested to state the 
dates that the patents at issue expire and the HTSUS numbers under 
which the accused articles are imported. The written submissions and 
proposed remedial orders must be filed no later than close of business 
on March 18, 2011. Reply submissions must be filed no later than the 
close of business on March 25, 2011. 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 
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 210.6. 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.

    Issued: March 7, 2011.
James R. Holbein,
Acting Secretary to the Commission.
[FR Doc. 2011-5673 Filed 3-10-11; 8:45 am]
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