In the Matter of Certain Flash Memory and Products Containing Same; Notice of Commission Decision To Review in Part a Final Determination Finding a Violation of Section 337; Request for Written Submissions, 25707-25709 [2011-10946]
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Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Notices
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–694]
In The Matter of Certain Multimedia
Display and Navigation Devices and
Systems, Components Thereof, and
Products Containing Same; Notice of
Commission Determination To Extend
the Supplemental Briefing Schedule
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to extend
the supplemental briefing schedule
identified in its prior notice issued
April 18, 2011 by seven (7) days.
FOR FURTHER INFORMATION CONTACT:
Daniel E. Valencia, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202)
205–1999. 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 the instant
investigation on December 16, 2009,
based on a complaint filed by Pioneer
Corporation of Tokyo, Japan and
Pioneer Electronics (USA) Inc. of Long
Beach, California (collectively,
‘‘Pioneer’’). 74 FR 66676 (Dec. 16, 2009).
The complaint 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 multimedia display and
navigation devices and systems,
components thereof, and products
containing same by reason of
infringement of various claims of United
States Patent Nos. 5,365,448 (‘‘the ’448
patent’’), 5,424,951 (‘‘the ’951 patent’’),
and 6,122,592 (‘‘the ’592 patent’’). The
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SUMMARY:
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complaint named Garmin International,
Inc. of Olathe, Kansas, Garmin
Corporation of Taiwan (collectively,
‘‘Garmin’’) and Honeywell International
Inc. of Morristown, New Jersey
(‘‘Honeywell’’) as the proposed
respondents. Honeywell was
subsequently terminated from the
investigation.
On December 16, 2010, the ALJ issued
his final initial determination (‘‘ID’’). In
his final ID, the ALJ found no violation
of section 337 by Garmin. Specifically,
the ALJ found that the accused products
do not infringe claims 1 and 2 of the
’448 patent, claims 1 and 2 of the ’951
patent, or claims 1 and 2 of the ’592
patent. The ALJ found that the ’592
patent was not proven to be invalid and
that Pioneer has established a domestic
industry under 19 U.S.C. 1337(a)(3)(C).
On February 23, 2011, the Commission
determined to review the final ID in
part.
On April 18, 2011, the Commission
issued a notice indicating that it had
determined to extend the target date and
request supplemental briefing from the
private parties and the public. On April
22, 2011, the Commission investigative
attorney (‘‘IA’’) filed an unopposed
motion for an extension of the briefing
schedule set forth in the Commission’s
April 18, 2011 notice. The IA’s motion
is granted.
The Commission has determined to
extend all submission dates set forth in
its prior notice by seven (7) days. In
particular, opening submissions of the
parties to the investigation are due no
later than May 10, 2011. A public
version of these submissions must be
filed with the Secretary no later than
May 17, 2011. Reply submissions of the
parties to the investigation are due no
later than May 24, 2011. Written
submissions from members of the public
will be accepted anytime on or before
May 24, 2011. No further submissions
on these issues will be permitted unless
otherwise ordered by the Commission.
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 part
210 of the Commission’s Rules of
Practice and Procedure (19 CFR 210).
By order of the Commission.
Issued: April 29, 2011.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2011–10945 Filed 5–4–11; 8:45 am]
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25707
INTERNATIONAL TRADE
COMMISSION
[Inv. No. 337–TA–685]
In the Matter of Certain Flash Memory
and Products Containing Same; Notice
of Commission Decision To Review in
Part a Final Determination Finding a
Violation of Section 337; Request for
Written Submissions
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part the presiding administrative law
judge’s (‘‘ALJ’’) final initial
determination (‘‘ID’’) issued on February
28, 2011, finding a violation of section
337 of the Tariff Act of 1930, 19 U.S.C.
1337 in the above-captioned
investigation.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Megan M. Valentine, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202)
708–2301. 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 Inv. No. 337–
TA–685 on September 9, 2009, based on
a complaint filed by Samsung
Electronics Co. (‘‘Samsung’’) of Suwon
City, South Korea on August 21, 2009.
74 FR 45469 (Sept. 2, 2009). The
complaint, as amended, 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 flash memory and products
containing same by reason of
infringement of certain claims of U.S.
Patent Nos. 6,930,050 (‘‘the ‘050 patent’’)
and 5,740,065 (‘‘the ‘065 patent’’). The
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Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Notices
Commission’s notice of investigation
named numerous respondents,
including Spansion, Inc. and Spansion,
LLC of Sunnyvale, California
(collectively, ‘‘Spansion’’) and D–Link
Corporation of Taipei City, Taiwan and
D–Link Systems, Inc. of Fountain View,
California (collectively ‘‘D–Link’’).
Respondents Spansion and D–Link are
herein referred to collectively as
‘‘Respondents.’’
On February 28, 2011, the ALJ issued
his final ID, finding a violation of
Section 337. The ID included the ALJ’s
recommended determination (‘‘RD’’) on
remedy and bonding. In his ID, the ALJ
found that asserted claims 8 and 12 of
the ‘065 patent are infringed. The ALJ
also found that claims 1, 8, and 12 of the
‘065 patent are not invalid under 35
U.S.C. 102 for anticipation. The ALJ also
found that the asserted claims of the
‘065 patent are not invalid for failing to
satisfy the written description
requirement of 35 U.S.C. 112 ¶ 1. The
ALJ further found that the asserted
claims of the ‘065 patent are not invalid
as indefinite under 35 U.S.C. 112 ¶ 2.
The ALJ also found that there is a
domestic industry with respect to claim
1 of the ‘065 patent as required by 19
U.S.C. 1337(a)(2) and (3). In his RD, the
ALJ recommended that the appropriate
remedy is a limited exclusion order
barring entry of infringing flash memory
devices or products containing same
and that it would also be appropriate to
issue cease and desist orders against
both Spansion and D–Link. The ALJ
also recommended that Respondents be
required to post a bond equal to 2.4
percent of the entered value of any
accused product that they seek to
import during the period of Presidential
review.
On March 14, 2011, Respondents filed
a petition seeking review of the ALJ’s
determination concerning the ALJ’s
findings on claim construction,
infringement, invalidity, and domestic
industry. Also on March 14, 2011, the
Commission investigative attorney
(‘‘IA’’) filed a petition seeking review of
the ALJ’s determination concerning the
ALJ’s findings on claim construction,
infringement, validity, and the domestic
industry. On March 22, 2011, Samsung
filed an opposition to Respondents’ and
the IA’s petitions for review. Also on
March 22, 2011, the IA filed a response
to Respondents’ petition for review on
the issue of invalidity under 35 U.S.C.
102 for anticipation. On March 25, 2011,
the IA filed an unopposed motion for
leave to file a public version of its
petition for review out of time. The
Commission hereby determines to grant
the motion.
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Having examined the record of this
investigation, including the ALJ’s final
ID, the petitions for review, and the
responses thereto, the Commission has
determined to review the final ID in
part. Specifically, the Commission has
determined to review the ID’s
construction of the limitation
‘‘extracting an optimal working
condition by accumulatively averaging
working conditions of lots previously
processed’’ of claim 8 of the ‘065 patent.
In particular, the Commission has
determined to review the ID’s
construction of ‘‘extracting an optimal
working condition by accumulatively
averaging’’ as not being limited to
Equation (1) of the ‘065 patent. The
Commission has also determined to
review the ID’s construction of the
‘‘extracting’’ limitation of claim 8 as
including the phrase ‘‘suitable lots.’’ The
Commission has further determined to
review the ID’s construction of the claim
limitation ‘‘accumulatively averaging
working conditions of lots previously
processed’’ of claim 8 of the ‘065 patent.
In particular, the Commission has
determined to review the ID’s
construction of the claim limitations
‘‘accumulatively averaging’’ and
‘‘working conditions.’’
The Commission has also determined
to review the ID’s finding that
Spansion’s accused run-to-run
alignment and exposure controllers
infringe claims 8 and 12 of the ‘065
patent. The Commission has further
determined to review the ID’s finding
that Japanese Unexamined Patent
Application Publication H5–47893,
entitled ‘‘Adjustment Method for
Semiconductor Manufacturing
Apparatus’’ does not anticipate claim 8
of the ‘065 patent. The Commission has
also determined to review the ID’s
finding that claim 8 is not invalid for
failing to satisfy the written description
requirement. The Commission has
further determined to review the ID’s
finding that claims 1, 8, and 12 are not
invalid as indefinite. The Commission
has also determined to review the ID’s
finding that Samsung’s Exposure
Parameter Optimization System
practices claim 1 of the ‘065 patent. The
Commission has determined not to
review the remaining issues decided in
the ID.
The parties are requested to brief their
positions on the issues under review
with reference to the applicable law and
the evidentiary record. In connection
with its review, the Commission is
particularly interested in responses to
the following questions:
1. Please address whether it is
appropriate to apply a plain, ordinary
meaning analysis in construing the
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claim term ‘‘accumulatively averaging’’
even though this term is admittedly a
‘‘coined term.’’ In discussing this issue,
please address the following questions:
a. If an ordinary meaning analysis of
‘‘accumulatively averaging’’ is
appropriate, does the experts’ testimony
concerning the understanding of one of
ordinary skill in the art in any way
conflict with the meaning of the claim
language as informed by the intrinsic
evidence?
b. If an ordinary meaning analysis is
appropriate, what is the definition of the
word ‘‘accumulatively’’ and how does
the meaning of the word
‘‘accumulatively’’ affect the correct
construction of ‘‘accumulatively
averaging?’’
c. If an ordinary meaning analysis is
appropriate, how does the definition of
‘‘accumulatively’’ fit into the context of
the purpose of the ‘065 invention in
terms of effective automatic process
control.
d. If ‘‘accumulatively averaging’’
should be construed according to its
ordinary meaning, how would such an
analysis affect the validity of claim 1?
2. Please address Samsung’s expert,
Dr. Watts’, admission that, under
Samsung’s broad interpretation of
‘‘accumulatively averaging’’ as
encompassing all types of averaging, the
limitation could read on averaging
operations that are not useful for the
process control procedure disclosed in
the ‘065 patent. See Watts, Tr. 861:16–
862:3.
3. With respect to the claim
construction of the ‘‘working
conditions’’ limitation, please address
the following questions:
a. Should the ‘‘process parameter
values’’ recited in claim 11 be read into
claim 8?
b. How does the meaning of the
phrase ‘‘according to’’ in col. 5, ln. 46 of
the ‘065 specification inform the
interpretation of the phrase ‘‘based on’’
recited in claim 8?
c. Are there any specific examples
available from the evidence of record
that may shed light on when a process
parameter variable that is not
specifically a machine setting may be
used in a semiconductor manufacturing
process as disclosed in the ‘065 patent?
In considering this question, please also
address how such a parameter might
then be converted to the proper units or
axis for a particular piece of processing
equipment.
4. Please address in depth whether
the particular type of averaging used in
Spansion’s accused process satisfies the
‘‘accumulatively averaging’’ limitation
under the doctrine of equivalents.
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5. Please address whether claim 8
satisfies the written description
requirement if the claim limitation
‘‘extracting an optimal working
condition by accumulatively averaging’’
is limited to Equation (1) disclosed in
the ‘065 patent, where Equation (1) may
represent to one of ordinary skill in the
art a moving average or a weighted or
unweighted average.
6. Please address whether claims 1, 8,
and 12 of the ‘065 patent are indefinite
if the ‘‘accumulatively averaging’’
limitation is construed to include a
moving average or a weighted or
unweighted average.
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(s) 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 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 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
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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 and the IA are also
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainants are also
requested to state the dates that the
patents expire and the HTSUS numbers
under which the accused products are
imported. The written submissions and
proposed remedial orders must be filed
no later than close of business on
Monday, May 16, 2011. Reply
submissions must be filed no later than
the close of business on Monday, May
23, 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 and 210.50 of the
Commission’s Rules of Practice and
Procedure (19 CFR 210.42–46 and
210.50).
By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2011–10946 Filed 5–4–11; 8:45 am]
BILLING CODE P
INTERNATIONAL TRADE
COMMISSION
[USITC SE–11–011]
Government in the Sunshine Act
Meeting Notice
United
States International Trade Commission.
AGENCY HOLDING THE MEETING:
TIME AND DATE:
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May 13, 2011 at 11 a.m.
Room 110, 500 E Street, SW.,
Washington, DC 20436, Telephone:
(202) 205–2000.
PLACE:
STATUS:
Open to the public.
MATTERS TO BE CONSIDERED:
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701–TA–477 and
731–TA–1180–1181 (Preliminary)
(Bottom Mount Combination
Refrigerator-Freezers from Korea and
Mexico). The Commission is currently
scheduled to transmit its determinations
to the Secretary of Commerce on or
before May 16, 2011; Commissioners’
opinions are currently scheduled to be
transmitted to the Secretary of
Commerce on or before May 23, 2011.
5. Vote in Inv. Nos. 701–TA–478 and
731–TA–1182 (Preliminary) (Certain
Steel Wheels from China). The
Commission is currently scheduled to
transmit it determinations to the
Secretary of Commerce on or before May
16, 2011; Commissioners’ opinions are
currently scheduled to be transmitted to
the Secretary of Commerce on or before
May 23, 2011.
6. Outstanding action jackets: None.
In accordance with Commission
policy, subject matter listed above, not
disposed of at the scheduled meeting,
may be carried over to the agenda of the
following meeting.
By order of the Commission.
Issued: May 3, 2011.
William R. Bishop,
Hearings and Meetings Coordinator.
[FR Doc. 2011–11092 Filed 5–3–11; 4:15 pm]
BILLING CODE 7020–02–P
Issued: April 29, 2011.
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]]>Agencies
[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Notices]
[Pages 25707-25709]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10946]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-685]
In the Matter of Certain Flash Memory and Products Containing
Same; Notice of Commission Decision To Review in Part a Final
Determination Finding a Violation of Section 337; Request for Written
Submissions
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the presiding
administrative law judge's (``ALJ'') final initial determination
(``ID'') issued on February 28, 2011, finding a violation of section
337 of the Tariff Act of 1930, 19 U.S.C. 1337 in the above-captioned
investigation.
FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-2301. 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 Inv. No. 337-TA-
685 on September 9, 2009, based on a complaint filed by Samsung
Electronics Co. (``Samsung'') of Suwon City, South Korea on August 21,
2009. 74 FR 45469 (Sept. 2, 2009). The complaint, as amended, 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 flash
memory and products containing same by reason of infringement of
certain claims of U.S. Patent Nos. 6,930,050 (``the `050 patent'') and
5,740,065 (``the `065 patent''). The
[[Page 25708]]
Commission's notice of investigation named numerous respondents,
including Spansion, Inc. and Spansion, LLC of Sunnyvale, California
(collectively, ``Spansion'') and D-Link Corporation of Taipei City,
Taiwan and D-Link Systems, Inc. of Fountain View, California
(collectively ``D-Link''). Respondents Spansion and D-Link are herein
referred to collectively as ``Respondents.''
On February 28, 2011, the ALJ issued his final ID, finding a
violation of Section 337. The ID included the ALJ's recommended
determination (``RD'') on remedy and bonding. In his ID, the ALJ found
that asserted claims 8 and 12 of the `065 patent are infringed. The ALJ
also found that claims 1, 8, and 12 of the `065 patent are not invalid
under 35 U.S.C. 102 for anticipation. The ALJ also found that the
asserted claims of the `065 patent are not invalid for failing to
satisfy the written description requirement of 35 U.S.C. 112 ] 1. The
ALJ further found that the asserted claims of the `065 patent are not
invalid as indefinite under 35 U.S.C. 112 ] 2. The ALJ also found that
there is a domestic industry with respect to claim 1 of the `065 patent
as required by 19 U.S.C. 1337(a)(2) and (3). In his RD, the ALJ
recommended that the appropriate remedy is a limited exclusion order
barring entry of infringing flash memory devices or products containing
same and that it would also be appropriate to issue cease and desist
orders against both Spansion and D-Link. The ALJ also recommended that
Respondents be required to post a bond equal to 2.4 percent of the
entered value of any accused product that they seek to import during
the period of Presidential review.
On March 14, 2011, Respondents filed a petition seeking review of
the ALJ's determination concerning the ALJ's findings on claim
construction, infringement, invalidity, and domestic industry. Also on
March 14, 2011, the Commission investigative attorney (``IA'') filed a
petition seeking review of the ALJ's determination concerning the ALJ's
findings on claim construction, infringement, validity, and the
domestic industry. On March 22, 2011, Samsung filed an opposition to
Respondents' and the IA's petitions for review. Also on March 22, 2011,
the IA filed a response to Respondents' petition for review on the
issue of invalidity under 35 U.S.C. 102 for anticipation. On March 25,
2011, the IA filed an unopposed motion for leave to file a public
version of its petition for review out of time. The Commission hereby
determines to grant the motion.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in part.
Specifically, the Commission has determined to review the ID's
construction of the limitation ``extracting an optimal working
condition by accumulatively averaging working conditions of lots
previously processed'' of claim 8 of the `065 patent. In particular,
the Commission has determined to review the ID's construction of
``extracting an optimal working condition by accumulatively averaging''
as not being limited to Equation (1) of the `065 patent. The Commission
has also determined to review the ID's construction of the
``extracting'' limitation of claim 8 as including the phrase ``suitable
lots.'' The Commission has further determined to review the ID's
construction of the claim limitation ``accumulatively averaging working
conditions of lots previously processed'' of claim 8 of the `065
patent. In particular, the Commission has determined to review the ID's
construction of the claim limitations ``accumulatively averaging'' and
``working conditions.''
The Commission has also determined to review the ID's finding that
Spansion's accused run-to-run alignment and exposure controllers
infringe claims 8 and 12 of the `065 patent. The Commission has further
determined to review the ID's finding that Japanese Unexamined Patent
Application Publication H5-47893, entitled ``Adjustment Method for
Semiconductor Manufacturing Apparatus'' does not anticipate claim 8 of
the `065 patent. The Commission has also determined to review the ID's
finding that claim 8 is not invalid for failing to satisfy the written
description requirement. The Commission has further determined to
review the ID's finding that claims 1, 8, and 12 are not invalid as
indefinite. The Commission has also determined to review the ID's
finding that Samsung's Exposure Parameter Optimization System practices
claim 1 of the `065 patent. The Commission has determined not to review
the remaining issues decided in the ID.
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in responses to the following questions:
1. Please address whether it is appropriate to apply a plain,
ordinary meaning analysis in construing the claim term ``accumulatively
averaging'' even though this term is admittedly a ``coined term.'' In
discussing this issue, please address the following questions:
a. If an ordinary meaning analysis of ``accumulatively averaging''
is appropriate, does the experts' testimony concerning the
understanding of one of ordinary skill in the art in any way conflict
with the meaning of the claim language as informed by the intrinsic
evidence?
b. If an ordinary meaning analysis is appropriate, what is the
definition of the word ``accumulatively'' and how does the meaning of
the word ``accumulatively'' affect the correct construction of
``accumulatively averaging?''
c. If an ordinary meaning analysis is appropriate, how does the
definition of ``accumulatively'' fit into the context of the purpose of
the `065 invention in terms of effective automatic process control.
d. If ``accumulatively averaging'' should be construed according to
its ordinary meaning, how would such an analysis affect the validity of
claim 1?
2. Please address Samsung's expert, Dr. Watts', admission that,
under Samsung's broad interpretation of ``accumulatively averaging'' as
encompassing all types of averaging, the limitation could read on
averaging operations that are not useful for the process control
procedure disclosed in the `065 patent. See Watts, Tr. 861:16-862:3.
3. With respect to the claim construction of the ``working
conditions'' limitation, please address the following questions:
a. Should the ``process parameter values'' recited in claim 11 be
read into claim 8?
b. How does the meaning of the phrase ``according to'' in col. 5,
ln. 46 of the `065 specification inform the interpretation of the
phrase ``based on'' recited in claim 8?
c. Are there any specific examples available from the evidence of
record that may shed light on when a process parameter variable that is
not specifically a machine setting may be used in a semiconductor
manufacturing process as disclosed in the `065 patent? In considering
this question, please also address how such a parameter might then be
converted to the proper units or axis for a particular piece of
processing equipment.
4. Please address in depth whether the particular type of averaging
used in Spansion's accused process satisfies the ``accumulatively
averaging'' limitation under the doctrine of equivalents.
[[Page 25709]]
5. Please address whether claim 8 satisfies the written description
requirement if the claim limitation ``extracting an optimal working
condition by accumulatively averaging'' is limited to Equation (1)
disclosed in the `065 patent, where Equation (1) may represent to one
of ordinary skill in the art a moving average or a weighted or
unweighted average.
6. Please address whether claims 1, 8, and 12 of the `065 patent
are indefinite if the ``accumulatively averaging'' limitation is
construed to include a moving average or a weighted or unweighted
average.
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(s) 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 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 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 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 and the IA are also requested to submit proposed
remedial orders for the Commission's consideration. Complainants are
also requested to state the dates that the patents expire and the HTSUS
numbers under which the accused products are imported. The written
submissions and proposed remedial orders must be filed no later than
close of business on Monday, May 16, 2011. Reply submissions must be
filed no later than the close of business on Monday, May 23, 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 and 210.50 of the Commission's Rules of Practice
and Procedure (19 CFR 210.42-46 and 210.50).
Issued: April 29, 2011.
By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2011-10946 Filed 5-4-11; 8:45 am]
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