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]

Download as PDF 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 http://www.usitc.gov. The public record for this investigation may be viewed on the Commission’s electronic docket (EDIS) at http:// 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 jlentini on DSKJ8SOYB1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 17:22 May 04, 2011 Jkt 223001 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] BILLING CODE 7020–02–P PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 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 http://www.usitc.gov. The public record for this investigation may be viewed on the Commission’s electronic docket (EDIS) at http:// 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 E:\FR\FM\05MYN1.SGM 05MYN1 jlentini on DSKJ8SOYB1PROD with NOTICES 25708 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. VerDate Mar<15>2010 17:22 May 04, 2011 Jkt 223001 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 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 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. E:\FR\FM\05MYN1.SGM 05MYN1 jlentini on DSKJ8SOYB1PROD with NOTICES Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Notices 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 VerDate Mar<15>2010 17:22 May 04, 2011 Jkt 223001 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: Frm 00047 Fmt 4703 Sfmt 9990 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. PO 00000 25709 E:\FR\FM\05MYN1.SGM 05MYN1

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 
http://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://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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