In the Matter of Certain Electronic Devices With Image Processing Systems, Components Thereof, and Associated Software; Notice of Commission Determination to Review a Final Initial Determination; Schedule for Filing Written Submission on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 55944-55946 [2011-23058]
Download as PDF
<![CDATA[
55944
Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Notices
cannot guarantee that we will be able to
do so.
Dated: September 1, 2011.
Julia Dougan,
Acting State Director.
[FR Doc. 2011–23066 Filed 9–8–11; 8:45 am]
BILLING CODE 1310–JA–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
Notice of Proposed Information
Collection
Office of Surface Mining
Reclamation and Enforcement.
ACTION: Notice and request for
comments.
AGENCY:
In compliance with the
Paperwork Reduction Act of 1995, the
Office of Surface Mining Reclamation
and Enforcement (OSM) is announcing
its intention to request approval for the
collection of information for its
Abandoned mine reclamation funds.
This collection request has been
forwarded to the Office of Management
and Budget (OMB) for review and
comment. The information collection
request describes the nature of the
information collection and the expected
burden and cost.
DATES: OMB has up to 60 days to
approve or disapprove the information
collection but may respond after 30
days. Therefore, public comments
should be submitted to OMB by October
11, 2011, in order to be assured of
consideration.
ADDRESSES: Submit comments to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Attention: Department of
Interior Desk Officer, by telefax at (202)
395–5806 or via e-mail to
OIRA_Docket@omb.eop.gov. Also,
please send a copy of your comments to
John Trelease, Office of Surface Mining
Reclamation and Enforcement, 1951
Constitution Ave, NW., Room 203—SIB,
Washington, DC 20240, or electronically
to jtrelease@osmre.gov.
FOR FURTHER INFORMATION CONTACT: To
receive a copy of the information
collection request contact John Trelease
at (202) 208–2783, or electronically at
jtrelease@osmre.gov. You may also
review this collection by going to
https://www.reginfo.gov (Information
Collection Review, Currently Under
Review, Agency is Department of the
Interior, DOI–OSMRE).
SUPPLEMENTARY INFORMATION: The Office
of Management and Budget (OMB)
mstockstill on DSK4VPTVN1PROD with NOTICES
SUMMARY:
VerDate Mar<15>2010
16:58 Sep 08, 2011
Jkt 223001
regulations at 5 CFR 1320, which
implement provisions of the Paperwork
Reduction Act of 1995 (Pub. L. 104–13),
require that interested members of the
public and affected agencies have an
opportunity to comment on information
collection and recordkeeping activities
[see 5 CFR 1320.8(d)]. OSM has
submitted a request to OMB to renew its
approval of the collection of information
contained in 30 CFR 872—Abandoned
mine reclamation funds. OSM is
requesting a 3-year term of approval for
each information collection activity.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
number for this collection is 1029–0054.
Regulatory authorities are required to
respond to this collection to obtain a
benefit.
As required under 5 CFR 1320.8(d), a
Federal Register notice soliciting
comments on this collection of
information was published on June 22,
2011 (76 FR 36575). No comments were
received. This notice provides the
public with an additional 30 days in
which to comment on the following
information collection activity:
Title: 30 CFR 872—Abandoned mine
reclamation funds.
OMB Control Number: 1029–0054.
Summary: 30 CFR 872 establishes a
procedure whereby States and Indian
tribes submit written statements
announcing the State’s/Tribe’s decision
not to submit reclamation plans and,
therefore, not be granted AML funds.
Bureau Form Number: None.
Frequency of Collection: Once.
Description of Respondents: State and
Tribal abandoned mine land
reclamation agencies.
Total Annual Responses: 1.
Total Annual Burden Hours: 1.
Total Annual Non-Wage Costs: $0.
Send comments on the need for the
collection of information for the
performance of the functions of the
agency; the accuracy of the agency’s
burden estimates; ways to enhance the
quality, utility and clarity of the
information collection; and ways to
minimize the information collection
burden on respondents, such as use of
automated means of collection of the
information, to the addresses listed
under ADDRESSES. Please refer to the
appropriate OMB control number 1029–
0054 in your correspondence.
Before including your address, phone
number, e-mail address, or other
personal identifying information in your
comment, you should be aware that
your entire comment, including your
personal identifying information, may
PO 00000
Frm 00078
Fmt 4703
Sfmt 4703
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Dated: September 1, 2011.
Stephen M. Sheffield,
Acting Chief, Division of Regulatory Support.
[FR Doc. 2011–22948 Filed 9–8–11; 8:45 am]
BILLING CODE 4310–05–M
INTERNATIONAL TRADE
COMMISSION
[Inv. No. 337–TA–724]
In the Matter of Certain Electronic
Devices With Image Processing
Systems, Components Thereof, and
Associated Software; Notice of
Commission Determination to Review
a Final Initial Determination; Schedule
for Filing Written Submission on the
Issues Under Review and on Remedy,
the Public Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
the final initial determination (‘‘ID’’)
issued by the presiding administrative
law judge (‘‘ALJ’’) in the above
captioned investigation on July 1, 2011,
finding a violation of section 337 (19
U.S.C. 1337). The Commission requests
briefing from the parties on the issues
under review and from the parties and
the public on remedy, the public
interest, and bonding, as indicated in
this notice.
FOR FURTHER INFORMATION CONTACT:
Clark S. Cheney, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street, SW.,
Washington, DC 20436, telephone 202–
205–2661. 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. Hearingimpaired persons are advised that
information on this matter can be
obtained by contacting the
Commission’s TDD terminal on 202–
205–1810. General information
concerning the Commission may also be
obtained by accessing its Internet server
(https://www.usitc.gov). The public
record for this investigation may be
SUMMARY:
E:\FR\FM\09SEN1.SGM
09SEN1
mstockstill on DSK4VPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Notices
viewed on the Commission’s electronic
docket (EDIS) at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on May 19, 2010, based on a complaint
filed by S3 Graphics Co. Ltd. and S3
Graphics Inc. (collectively, ‘‘S3G’’). 75
FR 38118 (July 1, 2010). 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 electronic devices
with image processing systems,
components thereof, and associated
software by reason of infringement of
various claims of United States Patent
Nos. 7,043,087 (‘‘the ’087 patent’’);
6,775,417 (‘‘the ’417 patent’’); 6,683,978
(‘‘the ’978 patent’’); and 6,658,146 (‘‘the
’146 patent’’). Id. The complaint named
Apple Inc. of Cupertino, California
(‘‘Apple’’) as the only respondent. Id.
On July 1, 2011, the ALJ issued his
final initial determination (‘‘ID’’) in this
investigation finding a violation of
section 337 based on conclusions that
certain Mac computers imported by
Apple infringe claim 11 of the ’978
patent and claims 4 and 16 of the ’146
patent, that those patent claims are not
invalid, that S3G has a domestic
industry related to those patents, and
that S3G satisfied the importation
requirement. The ID found that a patent
exhaustion defense relieved Apple of
liability for some of its infringing
products, but not others. The ID further
found no violation with respect to the
’087 and ’417 patents. The ID concluded
that certain Apple products infringe the
’087 and ’417 patents, but that the
asserted claims in those patents are
invalid. Along with the ID, the ALJ
issued a recommended determination
on remedy and bonding (‘‘RD’’).
Complainant S3G, respondent Apple,
and the Commission investigative
attorney (‘‘IA’’) filed petitions for review
of the ID on July 18, 2011. S3G, Apple,
and the IA each filed responses to the
petitions for review on July 26, 2011.
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 its
entirety.
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 the following
issues:
(1) Please comment on the
Commission’s statutory authority to find
VerDate Mar<15>2010
16:58 Sep 08, 2011
Jkt 223001
a violation under 19 U.S.C.
1337(a)(1)(B)(i) where direct
infringement is asserted and the accused
article does not meet every limitation of
the asserted patent claim at the time it
is imported into the United States.
(2) Please comment on the
Commission’s statutory authority to find
a violation under 19 U.S.C.
1337(a)(1)(B)(i) where an imported
article is used in the United States to
directly infringe a method claim, but
where there is no evidence of
contributory infringement or
inducement of infringement on the part
of the importer.
(3) Please comment on whether, in
evaluating the scope of the
Commission’s authority, any
significance should be attributed to the
fact that 35 U.S.C. 271(a) defines patent
infringement in terms of a person who
‘‘makes, uses, offers to sell, or sells
* * * or imports’’ a patented invention,
while 19 U.S.C. 1337(a)(1)(B) defines as
unlawful only the actions of
‘‘importation’’ and ‘‘sale.’’
(4) Some ALJ and Commission
decisions have found the requirements
of section 337 to be satisfied so long as
there is some ‘‘nexus’’ between the
products imported and the alleged
infringement. Please comment on the
history and application of this nexus
requirement in patent and non-patent
cases. Please also address the
continuing relevance of the nexus
requirement, if any, after the 1988
amendments to section 337 of the Tariff
Act of 1930.
(5) The ID found that Apple infringes
claim 11 of the ’978 patent when, inter
alia, it ‘‘sells applications containing
compressed DXT texture.’’ (ID at 69.)
Please identify all evidence in the
record, if any, supporting this finding.
(6) Apple contends that the ALJ did
not decide whether accused articles
having graphics processing units
(‘‘GPUs’’) supplied by NVIDIA
Corporation (‘‘NVIDIA’’) infringe any
asserted patent claims. (Apple Resp. Pet.
at 62.) Please identify (a) The portions
of the ID, if any, that show the ALJ
addressed infringement relating to the
NVIDIA GPUs; and (b) the evidence in
the record, if any, that accused articles
incorporating the NVIDIA GPUs infringe
an asserted patent claim. Please also
address whether review of this issue has
been preserved.
(7) Please identify all evidence in the
record, if any, that a person of ordinary
skill in the art at the time of the asserted
inventions would have been motivated
to use headers in the invention
disclosed in U.S. Patent No. 5,046,119
to Hoffert (‘‘Hoffert’’).
PO 00000
Frm 00079
Fmt 4703
Sfmt 4703
55945
(8) Please identify all evidence in the
record, if any, that a person of ordinary
skill in the art at the time of the asserted
inventions would have been motivated
to combine teachings from the 1995
article titled ‘‘Hardware for Superior
Texture Performance,’’ by Knittel et al.,
with the invention disclosed in Hoffert.
(9) The petitions raise the question of
whether Apple’s purchase of certain
processing units from NVIDIA and Intel
convey a right to practice the asserted
patents. Please provide legal authority,
if any, addressing the question of
whether the authorized purchase of a
patented component gives the purchaser
the right to (a) Use its own independent
implementation of the patented
technology, and (b) the right to use the
purchased component in conjunction
with other components that together
utilize the patented technology. In the
context of this issue, please provide
factual explanations, based on the
record, as to how the Mac OS X devices
use combinations of licensed and
unlicensed components and/or software
to implement the technology alleged to
infringe the asserted patent claims.
(10) The petitions raise the question
of whether patent licenses to Intel and
NVIDIA exhaust S3G’s rights in the
patents as to downstream purchasers
from Intel and NVIDIA. Please address
this argument in the context of this
investigation in view of LG Elecs. Inc. v.
Hitachi Ltd., 655 F. Supp. 2d 1036,
1047–48 (N.D. Cal. 2009) (‘‘the license
agreement represented a sale for
exhaustion purposes’’), Certain
Semiconductor Chips with Minimized
Chip Package Size and Products
Containing Same, No. 337–TA–630, ID
at 153 (U.S.I.T.C. Aug. 28, 2009)
(complainant ‘‘cannot enforce patent
law remedies against Respondents as it
relates to those [products] purchased
from [complainant’s] licensees
thereafter’’), and any other pertinent
legal authorities. Please also comment
on whether Apple has properly raised
and preserved this argument.
(11) Please identify the distinctions, if
any, between Apple’s defense under an
implied license theory and Apple’s
defense under a patent exhaustion
theory.
(12) Please comment on the correct
legal standard for determining whether
an invention has been abandoned,
suppressed, or concealed under 35
U.S.C. 102(g).
(13) Please comment on the bond that
should be set in this case should the
Commission determine that a remedy
and bond are appropriate. Please
specifically address each of the bond
amount issues identified by the ALJ in
the ID at 286–87.
E:\FR\FM\09SEN1.SGM
09SEN1
mstockstill on DSK4VPTVN1PROD with NOTICES
55946
Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Notices
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. L. 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
VerDate Mar<15>2010
16:58 Sep 08, 2011
Jkt 223001
submissions on the issues of remedy,
the public interest, and bonding. Such
submissions should address the ALJ’s
recommendation on remedy and
bonding set forth in the RD.
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 each of
the asserted patents are set to 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 Friday,
September 16, 2011. Reply submissions
must be filed no later than the close of
business on Friday, September 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.
Issued: September 2, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011–23058 Filed 9–8–11; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF LABOR
[OMB No. 1205–0371]
Comment Request for Information
Collection for the Work Opportunity
Tax Credit (WOTC) Program: Extension
With Non-Substantive Revisions
Employment and Training
Administration, Department of Labor.
AGENCY:
PO 00000
Frm 00080
Fmt 4703
Sfmt 4703
ACTION:
Notice.
The Department of Labor, as
part of its continuing effort to reduce
paperwork and respondent burden,
conducts a preclearance consultation
program to provide the general public
and Federal agencies with an
opportunity to comment on proposed
and/or continuing collections of
information in accordance with the
Paperwork Reduction Act of 1995
(PRA95) [44 U.S.C. 3506(c)(2)(A)]. This
program helps to ensure that requested
data can be provided in the desired
format, reporting burden (time and
financial resources) is minimized,
collection instruments are clearly
understood, and the impact of collection
requirements on respondents can be
properly assessed. Currently, the
Employment and Training
Administration (ETA) is soliciting
comments concerning the collection of
data for the WOTC program. OMB
approval for the information collection
forms expires November 30, 2011.
A copy of the proposed information
collection request (ICR) can be obtained
by contacting the office listed below in
the addressee section of this notice.
DATES: Written comments must be
submitted to the office listed in the
addressee’s section below on or before
November 8, 2011.
ADDRESSES: Submit written comments
to Kimberly Vitelli, Room C–4510,
Employment and Training
Administration, 200 Constitution
Avenue, NW., Washington, DC 20210.
Telephone No: 202–693–3045 (this is
not a toll-free number). Fax: 202–693–
3015. E-mail: vitelli.kimberly@dol.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
Data on the WOTC program is
collected by the state workforce
agencies (SWAs) using ETA Form
9058—Report 1, ‘‘Certification
Workload and Characteristics of
Certified Individuals, Work Opportunity
Tax Credit’’ and provided to the Office
of Workforce Investment, Washington,
DC, through ETA’s regional offices. (1)
ETA Form 9058—Report 1 is a quarterly
management report divided into two
parts. Part I collects ‘‘Certification
Workload’’ data and part II. collects
‘‘Characteristics of Certified
Individuals.’’ The SWAs submit this
report using the Internet-based Tax
Credit Reporting System of the
Enterprise Business Services System
(EBSS). The data obtained from this
report and from the other four
administrative and processing forms
(ETA Forms 9061–9063 and 9065) are
E:\FR\FM\09SEN1.SGM
09SEN1
]]>Agencies
[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]
[Notices]
[Pages 55944-55946]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23058]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-724]
In the Matter of Certain Electronic Devices With Image Processing
Systems, Components Thereof, and Associated Software; Notice of
Commission Determination to Review a Final Initial Determination;
Schedule for Filing Written Submission on the Issues Under Review and
on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review the final initial determination
(``ID'') issued by the presiding administrative law judge (``ALJ'') in
the above captioned investigation on July 1, 2011, finding a violation
of section 337 (19 U.S.C. 1337). The Commission requests briefing from
the parties on the issues under review and from the parties and the
public on remedy, the public interest, and bonding, as indicated in
this notice.
FOR FURTHER INFORMATION CONTACT: Clark S. Cheney, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone 202-205-2661. 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. Hearing-impaired persons are advised
that information on this matter can be obtained by contacting the
Commission's TDD terminal on 202-205-1810. General information
concerning the Commission may also be obtained by accessing its
Internet server (https://www.usitc.gov). The public record for this
investigation may be
[[Page 55945]]
viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on May 19, 2010, based on a complaint filed by S3 Graphics Co. Ltd. and
S3 Graphics Inc. (collectively, ``S3G''). 75 FR 38118 (July 1, 2010).
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 electronic devices with image processing
systems, components thereof, and associated software by reason of
infringement of various claims of United States Patent Nos. 7,043,087
(``the '087 patent''); 6,775,417 (``the '417 patent''); 6,683,978
(``the '978 patent''); and 6,658,146 (``the '146 patent''). Id. The
complaint named Apple Inc. of Cupertino, California (``Apple'') as the
only respondent. Id.
On July 1, 2011, the ALJ issued his final initial determination
(``ID'') in this investigation finding a violation of section 337 based
on conclusions that certain Mac computers imported by Apple infringe
claim 11 of the '978 patent and claims 4 and 16 of the '146 patent,
that those patent claims are not invalid, that S3G has a domestic
industry related to those patents, and that S3G satisfied the
importation requirement. The ID found that a patent exhaustion defense
relieved Apple of liability for some of its infringing products, but
not others. The ID further found no violation with respect to the '087
and '417 patents. The ID concluded that certain Apple products infringe
the '087 and '417 patents, but that the asserted claims in those
patents are invalid. Along with the ID, the ALJ issued a recommended
determination on remedy and bonding (``RD''). Complainant S3G,
respondent Apple, and the Commission investigative attorney (``IA'')
filed petitions for review of the ID on July 18, 2011. S3G, Apple, and
the IA each filed responses to the petitions for review on July 26,
2011.
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 its entirety.
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 the following issues:
(1) Please comment on the Commission's statutory authority to find
a violation under 19 U.S.C. 1337(a)(1)(B)(i) where direct infringement
is asserted and the accused article does not meet every limitation of
the asserted patent claim at the time it is imported into the United
States.
(2) Please comment on the Commission's statutory authority to find
a violation under 19 U.S.C. 1337(a)(1)(B)(i) where an imported article
is used in the United States to directly infringe a method claim, but
where there is no evidence of contributory infringement or inducement
of infringement on the part of the importer.
(3) Please comment on whether, in evaluating the scope of the
Commission's authority, any significance should be attributed to the
fact that 35 U.S.C. 271(a) defines patent infringement in terms of a
person who ``makes, uses, offers to sell, or sells * * * or imports'' a
patented invention, while 19 U.S.C. 1337(a)(1)(B) defines as unlawful
only the actions of ``importation'' and ``sale.''
(4) Some ALJ and Commission decisions have found the requirements
of section 337 to be satisfied so long as there is some ``nexus''
between the products imported and the alleged infringement. Please
comment on the history and application of this nexus requirement in
patent and non-patent cases. Please also address the continuing
relevance of the nexus requirement, if any, after the 1988 amendments
to section 337 of the Tariff Act of 1930.
(5) The ID found that Apple infringes claim 11 of the '978 patent
when, inter alia, it ``sells applications containing compressed DXT
texture.'' (ID at 69.) Please identify all evidence in the record, if
any, supporting this finding.
(6) Apple contends that the ALJ did not decide whether accused
articles having graphics processing units (``GPUs'') supplied by NVIDIA
Corporation (``NVIDIA'') infringe any asserted patent claims. (Apple
Resp. Pet. at 62.) Please identify (a) The portions of the ID, if any,
that show the ALJ addressed infringement relating to the NVIDIA GPUs;
and (b) the evidence in the record, if any, that accused articles
incorporating the NVIDIA GPUs infringe an asserted patent claim. Please
also address whether review of this issue has been preserved.
(7) Please identify all evidence in the record, if any, that a
person of ordinary skill in the art at the time of the asserted
inventions would have been motivated to use headers in the invention
disclosed in U.S. Patent No. 5,046,119 to Hoffert (``Hoffert'').
(8) Please identify all evidence in the record, if any, that a
person of ordinary skill in the art at the time of the asserted
inventions would have been motivated to combine teachings from the 1995
article titled ``Hardware for Superior Texture Performance,'' by
Knittel et al., with the invention disclosed in Hoffert.
(9) The petitions raise the question of whether Apple's purchase of
certain processing units from NVIDIA and Intel convey a right to
practice the asserted patents. Please provide legal authority, if any,
addressing the question of whether the authorized purchase of a
patented component gives the purchaser the right to (a) Use its own
independent implementation of the patented technology, and (b) the
right to use the purchased component in conjunction with other
components that together utilize the patented technology. In the
context of this issue, please provide factual explanations, based on
the record, as to how the Mac OS X devices use combinations of licensed
and unlicensed components and/or software to implement the technology
alleged to infringe the asserted patent claims.
(10) The petitions raise the question of whether patent licenses to
Intel and NVIDIA exhaust S3G's rights in the patents as to downstream
purchasers from Intel and NVIDIA. Please address this argument in the
context of this investigation in view of LG Elecs. Inc. v. Hitachi
Ltd., 655 F. Supp. 2d 1036, 1047-48 (N.D. Cal. 2009) (``the license
agreement represented a sale for exhaustion purposes''), Certain
Semiconductor Chips with Minimized Chip Package Size and Products
Containing Same, No. 337-TA-630, ID at 153 (U.S.I.T.C. Aug. 28, 2009)
(complainant ``cannot enforce patent law remedies against Respondents
as it relates to those [products] purchased from [complainant's]
licensees thereafter''), and any other pertinent legal authorities.
Please also comment on whether Apple has properly raised and preserved
this argument.
(11) Please identify the distinctions, if any, between Apple's
defense under an implied license theory and Apple's defense under a
patent exhaustion theory.
(12) Please comment on the correct legal standard for determining
whether an invention has been abandoned, suppressed, or concealed under
35 U.S.C. 102(g).
(13) Please comment on the bond that should be set in this case
should the Commission determine that a remedy and bond are appropriate.
Please specifically address each of the bond amount issues identified
by the ALJ in the ID at 286-87.
[[Page 55946]]
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. L. 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 ALJ's recommendation on remedy and
bonding set forth in the RD. 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 each of the
asserted patents are set to 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
Friday, September 16, 2011. Reply submissions must be filed no later
than the close of business on Friday, September 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.
Issued: September 2, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-23058 Filed 9-8-11; 8:45 am]
BILLING CODE 7020-02-P
