Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof; Notice of Commission Decision Finding No Violation of Section 337 as to Three Patents and Remanding the Investigation to the ALJ as to One Patent, 52759-52761 [2012-21373]
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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Notices
United States at less than fair value
(LTFV).
Background
The Commission instituted this
investigation effective July 14, 2011,
following receipt of a petition filed with
the Commission and Commerce by ABB
Inc., Cary, NC; Delta Star Inc.,
Lynchburg, VA; and Pennsylvania
Transformer Technology Inc.,
Canonsburg, PA. The final phase of the
investigation was scheduled by the
Commission following notification of a
preliminary determination by
Commerce that imports of large power
transformers from Korea were being sold
at LTFV within the meaning of section
733(b) of the Act (19 U.S.C. 1673b(b)).
Notice of the scheduling of the final
phase of the Commission’s investigation
and of a public hearing to be held in
connection therewith was given by
posting copies of the notice in the Office
of the Secretary, U.S. International
Trade Commission, Washington, DC,
and by publishing the notice in the
Federal Register of March 21, 2012 (77
FR 16559). The hearing was held in
Washington, DC, on July 10, 2012, and
all persons who requested the
opportunity were permitted to appear in
person or by counsel.
The Commission transmitted its
determination in this investigation to
the Secretary of Commerce on August
24, 2012. The views of the Commission
are contained in USITC Publication
4346 (August 2012), entitled Large
Power Transformers from Korea:
Investigation No. 731–TA–1189 (Final).
By order of the Commission.
Issued: August 24, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012–21371 Filed 8–29–12; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
mstockstill on DSK4VPTVN1PROD with NOTICES
[Investigation No. 337–TA–745]
Certain Wireless Communication
Devices, Portable Music and Data
Processing Devices, Computers and
Components Thereof; Notice of
Commission Decision Finding No
Violation of Section 337 as to Three
Patents and Remanding the
Investigation to the ALJ as to One
Patent
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
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Notice is hereby given that
the U.S. International Trade
Commission has found no violation of
337 of the Tariff Act of 1930, 19 U.S.C.
1337, in the above-captioned
investigation with respect to U.S. Patent
Nos. 6,272,333 (‘‘the ’333 patent’’);
6,246,697 (‘‘the ’697 patent’’); and
5,636,223 (‘‘the ’223 patent’’). The
investigation is remanded to the
presiding administrative law judge
(‘‘ALJ’’) with respect to U.S. Patent No.
6,246,862 (‘‘the ’862 patent’’).
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 this investigation
on November 8, 2010, based on a
complaint filed by Motorola Mobility,
Inc. of Libertyville, Illinois
(‘‘Motorola’’). 75 FR 68619–20 (Nov. 8,
2010). The complaint alleges violations
of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337 (‘‘section
337’’), in the importation into the
United States, the sale for importation,
and the sale within the United States
after importation of certain wireless
communication devices, portable music
and data processing devices, computers
and components thereof by reason of
infringement of certain claims of the
’333 patent, the ’862 patent, the ’697
patent, U.S. Patent No. 5,359,317 (‘‘the
’317 patent’’), the ’223 patent, and U.S.
Patent No. 7,751,826 (‘‘the ’826 patent’’).
The complaint further alleges the
existence of a domestic industry. The
Commission’s notice of investigation
named Apple Inc. of Cupertino,
California (‘‘Apple’’) as respondent. The
Office of Unfair Import Investigation
(‘‘OUII’’) was named as a participating
party, however, on July 29, 2011, OUII
withdrew from further participation in
SUMMARY:
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52759
the investigation. See Commission
Investigative Staff’s Notice of
Nonparticipation (July 29, 2011). The
Commission later partially terminated
the investigation as to the ’317 patent
and the ’826 patent. Notice (June 28,
2011); Notice (Jan 27, 2012).
On April 24, 2012, the ALJ issued his
final ID, finding a violation of section
337 as to the ’697 patent and finding no
violation as to the ’223, ’333, and ’697
patents. On May 9, 2012, the ALJ issued
his recommended determination on
remedy and bonding. In his final ID, the
ALJ found that the products accused of
infringing the ’697 patent literally
infringe claims 1–4 of that patent, and
that Apple induces others to infringe the
asserted claims of the ’697 patent. The
ALJ also found that the asserted claims
of the ’697 patent are not invalid as
anticipated under 35 U.S.C. 102, as
obvious under 35 U.S.C. 103, or for
failure to satisfy the written description
requirement or the best mode
requirement of 35 U.S.C. 112. The ALJ
also found that the ’697 patent is not
unenforceable for unclean hands. The
ALJ further found that Motorola has
satisfied the domestic industry
requirement for the ’697 patent. The ALJ
found that the products accused of
infringing the ’223 patent literally
infringe the asserted claim of that patent
and that Apple induces others to
infringe the claim 1 of the ’223 patent.
The ALJ further found, however, that
the asserted claim of the ’223 patent is
invalid as anticipated under 35 U.S.C.
102. The ALJ also found that Motorola
has satisfied the domestic industry
requirement for the ’223 patent. The ALJ
found that the products accused of
infringing the ’333 patent do not
literally infringe claim 12 of that patent.
The ALJ also found that the asserted
claim of the ’333 patent is not invalid
as anticipated under 35 U.S.C. 102 or for
obviousness under 35 U.S.C. 103. The
ALJ further found that Motorola has not
satisfied the domestic industry
requirement for the ’333 patent. The ALJ
found that claim 1 of the ’862 patent is
invalid as indefinite under 35 U.S.C.
112, ¶ 2 and, therefore, that the products
accused of infringing the ’862 patent do
not literally infringe the asserted claim
of that patent and that Motorola has not
satisfied the domestic industry
requirement for the ’862 patent.
On May 7, 2012, Motorola filed a joint
petition for review and contingent
petition for review of certain aspects of
the final ID’s findings concerning claim
construction, infringement, validity, and
domestic industry. Also on May 7, 2012,
Apple filed a joint petition for review
and contingent petition for review of
certain aspects of the final ID’s findings
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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Notices
concerning claim construction,
infringement, validity, and patent
unenforceability. On May 15, 2012,
Motorola filed a response to Apple’s
petition. Also on May 15, 2012, Apple
filed a response to Motorola’s petition.
On June 6, 2012, Apple filed a postRD statement on the public interest
pursuant to Commission Rule
201.50(a)(4). Also on June 6, 2012,
several non-parties filed public interest
statements in response to the post-RD
Commission Notice issued on May 15,
2012. See 77 FR 28621–22 (May 15,
2012). The non-parties include: Federal
Trade Commission; Business Software
Alliance; Association for Competitive
Technology; Retail Industry Leaders
Association; Verizon; Nokia
Corporation; Hewlett-Packard Company;
and Microsoft Corporation.
On June 25, 2012, the Commission
determined to review the final ID in part
and requested briefing on the issues it
determined to review, remedy, the
public interest, and bonding. 77 FR
38826–29 (June 29, 2012). Specifically,
with respect to the ’223 patent the
Commission determined to review the
ID’s construction of the limitation
‘‘access priority value’’ in claim 1. The
Commission also determined to review
the ID with respect to the validity of
claim 1 of the ’223 patent under 35
U.S.C. 102 in light of U.S. Patent No.
5,453,987 to Tran (‘‘Tran ’987) and U.S.
Patent No. 5,657,317 to Mahany et al.
(‘‘Mahany ’317’’) and under 35 U.S.C.
103 in light of Tran ’987 in combination
with Mahany ’317. The Commission
further determined to review the ID’s
finding that the 802.11n standard
necessarily practices claim 1 of the ’223
patent, and thus, the ID’s findings
concerning infringement and the
technical prong of the domestic industry
requirement with respect to the ’223
patent.
With respect to the ’697 patent, the
Commission determined to review the
ID’s construction of the limitation
‘‘selecting a chip time in a complex PN
[pseudonoise] sequence generator’’ in
claim 1. The Commission also
determined to review the ID’s
construction of the limitation
‘‘restricting a phase difference between
a previous complex PN chip and a next
complex PN chip to a preselected phase
angle.’’ The Commission further
determined to review the ID’s findings
with respect to the validity of claims 1–
4 of the ’697 patent under 35 U.S.C. 102
in light of prior art p/2-shift BPSK
modulation and under 35 U.S.C. 103 in
light of the combination of prior art
QPSK and p/2-shift BPSK modulation
schemes. The Commission also
determined to review the ID’s finding of
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direct and induced infringement with
respect to the ’697 patent. The
Commission further determined to
review the ID’s finding that Motorola
has satisfied the technical prong of the
domestic industry requirement for the
’697 patent.
With respect to the ’862 patent, the
Commission determined to review the
ID’s construction of the limitation
‘‘close proximity to a user’’ in claim 1
and his finding that claim 1 is
indefinite.
With respect to the ’333 patent, the
Commission determined to review the
ID’s construction of the limitation ‘‘a list
of all software applications that are
currently accessible to the subscriber
unit’’ in claim 12. The Commission
further determined to review the ALJ’s
finding that claim 12 is not invalid
under 35 U.S.C. 102 in light of U.S.
Patent Nos. 5,502,831 to Grube et al.
(‘‘Grube ’831’’), 6,008,737 to DeLuca et
al. (‘‘DeLuca ’797’’), or 5,612,682 to
DeLuca et al. (‘‘DeLuca ’682’’), or under
35 U.S.C. 103 in view of Grube ’831
combined with DeLuca ’682. The
Commission also determined to review
the ALJ’s finding of non-infringement of
claim 12. The Commission further
determined to review the ID’s finding
that Motorola’s domestic industry
product does not practice claim 12 of
the ’333 patent.
With respect to whether Motorola has
satisfied the economic prong of the
domestic industry requirement, the
Commission determined to review the
ID’s finding that Motorola has not
satisfied the economic prong as to the
’333 patent under section 337(a)(3)(C)
by its investments in licensing. The
Commission also determined to review
in part the ID’s finding that Motorola
has satisfied the economic prong with
respect to the ’223 and ’697 patents
under section 337(a)(3)(A) and (B). The
Commission determined not to review
the remaining issues decided in the ID.
On July 9, 2012, the Motorola and
Apple filed initial written submissions
regarding the issues on review, remedy,
the public interest, and bonding. On
July 16, 2012, the parties filed response
submissions. Also on July 9, 2012,
several non-parties filed submissions
concerning the public interest. On July
16, 2012, several non-parties filed
response submissions.
Having examined the record of this
investigation, including the ALJ’s final
ID and the parties’ submissions, the
Commission has determined to affirm
the final ID’s finding of no violation as
to the ’223 and ’333 patents and to
reverse the finding of violation as to the
’697 patent. The Commission has also
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determined remand the investigation to
the ALJ with respect to the ’862 patent.
Specifically, the Commission has
determined to affirm the ID’s finding of
no violation with respect to the ’223
patent with modifications. In particular,
the Commission has determined to
modify the ID’s claim construction of
the claim limitation ‘‘access priority
value’’ in claim 1 to mean ‘‘a value
based on information available to the
terminal, or based on information
available to the terminal and
information received from the
infrastructure, used to determine
relative priority among multiple
terminals for access to a data
communications system.’’ The
Commission has determined to affirm
the ID’s finding that claim 1 of the ’223
patent is anticipated by Mahany ’317
and Tran ’987. The Commission also
finds that claim 1 of the ’223 patent is
obvious in light of Tran ’987 in
combination with Mahany ’317. The
Commission has determined to reverse
the ID’s finding that products compliant
with the 802.11n standard necessarily
practice claim 1 of the ’223 patent. The
Commission, therefore, finds that the
accused products do not infringe claim
1 of the ’233 patent and that Motorola
has not satisfied the technical prong of
the domestic industry requirement with
respect to the ’223 patent.
With respect to the ’697 patent, the
Commission has determined to reverse
the ID’s finding of violation of section
337. In particular, the Commission has
determined to affirm, with modified
reasoning, the ID’s construction of the
limitation ‘‘selecting every chip time’’ of
claim 1 of the ’697 patent. The
Commission also finds that the
limitation ‘‘restricting a phase difference
between a previous complex PN chip
and a next complex PN chip to a
preselected phase angle’’ in claim 1
means ‘‘at the selected chip time, the
next complex PN chip is limited to a
predetermined phase transition,’’ with
the understanding that the phrase
‘‘preselected phase angle’’ requires a
single unique angle with a
predetermined direction and magnitude
at a particular ‘‘selected chip time,’’ but
that the phase transition need not be the
same at every chip time. The
Commission further finds that claim 1 is
limited to p/2 BPSK modulation ‘‘at
selected chip times,’’ and thus, that the
claimed ‘‘phase difference’’ must be
±90° ‘‘at selected chip times.’’ The
Commission affirms the ID’s finding that
claims 1–4 of the ’697 patent are not
anticipated by prior art p/2-shift BPSK
modulation. The Commission also
affirms the ID’s finding that claims 1–4
are not obviousness in light of the
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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Notices
combination of prior art QPSK and p/2shift BPSK modulation schemes. The
Commission reverses the ID’s finding
that generation of the complex-valued
long scrambling sequence, Clong,n used to
scramble PRACH messages in the
scheme defined by the 3GPP–UMTS
standard necessarily practices the
method claims 1–4 of the ’697 patent,
and thus, finds no direct or induced
infringement with respect to the ’697
patent. The Commission further reverses
the ID’s finding that Motorola has
satisfied the technical prong of the
domestic industry requirement for the
’697 patent, and finds that Motorola has
not satisfied this requirement.
With respect to the ’862 patent, the
Commission has determined to reverse
the ID’s finding that claim 1 is
indefinite. The Commission remands
the investigation to the ALJ to consider
the issues of infringement, validity, and
the domestic industry requirement for
the ’862 patent.
With respect to the ’333 patent, the
Commission has determined to affirm
the ID’s finding of no violation of
section 337 with modifications. In
particular, the Commission finds that
the limitation ‘‘a list of all software
applications that are currently
accessible to the subscriber unit’’ of
claim 12 means ‘‘a list of all software
applications that are available and
enabled for present use by the
subscriber.’’ The Commission affirms
the ID’s finding that claim 12 of the ’333
patent is not anticipated by Grube ’831,
DeLuca ’737 or DeLuca ’682, and is not
rendered obvious by Grube ’831 in view
of DeLuca ’682. The Commission also
affirms, with modified reasoning, the
ALJ’s finding of non-infringement of
claim 12 of the ’333 patent. The
Commission further affirms, with
modified reasoning, the ID’s finding that
Motorola’s domestic industry product
does not practice claim 12 of the ’333
patent.
With respect to whether Motorola has
satisfied the economic prong of the
domestic industry requirement, the
Commission has determined to affirmin-part the ID’s finding that Motorola
has satisfied the economic prong of the
domestic industry requirement under
section 337(a)(3)(A) and (B) by making
substantial investments in its CliqXT
and Droid 2 products, and further finds
that these investments satisfy the
economic prong requirement as to the
‘223, ‘697, and ‘333 patents. In addition
to its investments in seedstock for its
CliqXT and Droid 2 products, the
Commission also finds that Motorola’s
expenditures relating to the creation of
prototypes for its CliqXT and Droid 2
products and its costs associated with
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post-assembly loading of vendorspecific software and testing of those
products are sufficient to support a
finding that Motorola has satisfied the
economic prong under section
337(a)(3)(A) and (B). The Commission
vacates and takes no further position on
the ID’s finding that Motorola has not
satisfied the economic prong as to the
’333 patent under section 337(a)(3)(C)
for its investments in licensing.
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–.50 of the Commission’s
Rules of Practice and Procedure (19 CFR
210.42–.50).
By order of the Commission.
Issued: August 24, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012–21373 Filed 8–29–12; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Consent Decrees
Under the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA)
Notice is hereby given that on August
23, 2012, two proposed Consent Decrees
(‘‘Decrees’’) in United States and the
State of South Dakota v. Cyprus Mines
Corporation, Cyprus Amax Minerals
Company, Inc., Blue Tee Corp., and
Homestake Mining Company of
California, Case No. 5:12–CV–05058–
JLV, were lodged with the United States
District Court for the District of South
Dakota, Western Division. The case was
brought under Sections 107(a) and
113(g)(2) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(‘‘CERCLA’’), 42 U.S.C. 9607(a) and
9613(g)(2), for the recovery of response
costs related to the cleanup at the Gilt
Edge Mine Superfund Site (‘‘Site’’) in
Lawrence County, South Dakota.
The Consent Decrees require the
Defendants to pay a combined $30.2
million to settle their liability at the
Site. Cyprus Mines Corporation, Cyprus
Amax Minerals Company, Inc., and Blue
Tee Corp. will pay a total of $26 million.
Homestake Mining Company of
California will pay $4.2 million. The
money will be used to help pay for
response costs related to the cleanup at
the Site.
The United States and the State of
South Dakota filed a Complaint
simultaneous with the Consent Decrees
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52761
alleging that the Defendants are jointly
and severally liable for response costs
related to the cleanup at the Site. 42
U.S.C. 9607(a), 9613(g)(2). The Consent
Decrees would resolve the claims
against the Defendants as described in
the Complaint.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
relating to the Decrees. Comments
should be addressed to the Assistant
Attorney General, Environment and
Natural Resources Division, and either
emailed to the pubcommentees.enrd@usdoj.gov or mailed to P.O.
Box 7611, U.S. Department of Justice,
Washington, DC 20044–7611, and
should refer to United States and the
State of South Dakota v. Cyprus Mines
Corporation, Cyprus Amax Minerals
Company, Inc., Blue Tee Corp., and
Homestake Mining Company of
California, Case No. 5:12–CV–05058–
JLV, D.J. Ref. No. 90–11–3–08278.
The Decrees may be examined at the
Office of the United States Attorney,
District of South Dakota, 515 Ninth
Street, Suite 201, Rapid City, South
Dakota 57701. They also may be
examined at the offices of U.S. EPA
Region 8, 1595 Wynkoop Street, Denver,
Colorado 80202. During the public
comment period, the Decrees may be
examined on the following Department
of Justice Web site, https://
www.usdoj.gov/enrd/
Consent_Decrees.html.
A copy of the Decrees may be
obtained by mail from the Consent
Decree Library, P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611 or by faxing or emailing a
request to ‘‘Consent Decree Copy’’
(EESCDCopy.ENRD@usdoj.gov), fax no.
(202) 514–0097, phone confirmation
number (202) 514–5271. If requesting a
copy from the Consent Decree Library
by mail, please enclose a check in the
amount of $14.25 (25 cents per page
reproduction cost) payable to the U.S.
Treasury or, if requesting by email or
fax, forward a check in that amount to
the Consent Decree Library at the
address given above.
Robert Brook,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. 2012–21348 Filed 8–29–12; 8:45 am]
BILLING CODE 4410–15–P
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[Federal Register Volume 77, Number 169 (Thursday, August 30, 2012)]
[Notices]
[Pages 52759-52761]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21373]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-745]
Certain Wireless Communication Devices, Portable Music and Data
Processing Devices, Computers and Components Thereof; Notice of
Commission Decision Finding No Violation of Section 337 as to Three
Patents and Remanding the Investigation to the ALJ as to One Patent
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has found no violation of 337 of the Tariff Act of 1930, 19
U.S.C. 1337, in the above-captioned investigation with respect to U.S.
Patent Nos. 6,272,333 (``the '333 patent''); 6,246,697 (``the '697
patent''); and 5,636,223 (``the '223 patent''). The investigation is
remanded to the presiding administrative law judge (``ALJ'') with
respect to U.S. Patent No. 6,246,862 (``the '862 patent'').
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 this investigation
on November 8, 2010, based on a complaint filed by Motorola Mobility,
Inc. of Libertyville, Illinois (``Motorola''). 75 FR 68619-20 (Nov. 8,
2010). The complaint alleges violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain wireless
communication devices, portable music and data processing devices,
computers and components thereof by reason of infringement of certain
claims of the '333 patent, the '862 patent, the '697 patent, U.S.
Patent No. 5,359,317 (``the '317 patent''), the '223 patent, and U.S.
Patent No. 7,751,826 (``the '826 patent''). The complaint further
alleges the existence of a domestic industry. The Commission's notice
of investigation named Apple Inc. of Cupertino, California (``Apple'')
as respondent. The Office of Unfair Import Investigation (``OUII'') was
named as a participating party, however, on July 29, 2011, OUII
withdrew from further participation in the investigation. See
Commission Investigative Staff's Notice of Nonparticipation (July 29,
2011). The Commission later partially terminated the investigation as
to the '317 patent and the '826 patent. Notice (June 28, 2011); Notice
(Jan 27, 2012).
On April 24, 2012, the ALJ issued his final ID, finding a violation
of section 337 as to the '697 patent and finding no violation as to the
'223, '333, and '697 patents. On May 9, 2012, the ALJ issued his
recommended determination on remedy and bonding. In his final ID, the
ALJ found that the products accused of infringing the '697 patent
literally infringe claims 1-4 of that patent, and that Apple induces
others to infringe the asserted claims of the '697 patent. The ALJ also
found that the asserted claims of the '697 patent are not invalid as
anticipated under 35 U.S.C. 102, as obvious under 35 U.S.C. 103, or for
failure to satisfy the written description requirement or the best mode
requirement of 35 U.S.C. 112. The ALJ also found that the '697 patent
is not unenforceable for unclean hands. The ALJ further found that
Motorola has satisfied the domestic industry requirement for the '697
patent. The ALJ found that the products accused of infringing the '223
patent literally infringe the asserted claim of that patent and that
Apple induces others to infringe the claim 1 of the '223 patent. The
ALJ further found, however, that the asserted claim of the '223 patent
is invalid as anticipated under 35 U.S.C. 102. The ALJ also found that
Motorola has satisfied the domestic industry requirement for the '223
patent. The ALJ found that the products accused of infringing the '333
patent do not literally infringe claim 12 of that patent. The ALJ also
found that the asserted claim of the '333 patent is not invalid as
anticipated under 35 U.S.C. 102 or for obviousness under 35 U.S.C. 103.
The ALJ further found that Motorola has not satisfied the domestic
industry requirement for the '333 patent. The ALJ found that claim 1 of
the '862 patent is invalid as indefinite under 35 U.S.C. 112, ] 2 and,
therefore, that the products accused of infringing the '862 patent do
not literally infringe the asserted claim of that patent and that
Motorola has not satisfied the domestic industry requirement for the
'862 patent.
On May 7, 2012, Motorola filed a joint petition for review and
contingent petition for review of certain aspects of the final ID's
findings concerning claim construction, infringement, validity, and
domestic industry. Also on May 7, 2012, Apple filed a joint petition
for review and contingent petition for review of certain aspects of the
final ID's findings
[[Page 52760]]
concerning claim construction, infringement, validity, and patent
unenforceability. On May 15, 2012, Motorola filed a response to Apple's
petition. Also on May 15, 2012, Apple filed a response to Motorola's
petition.
On June 6, 2012, Apple filed a post-RD statement on the public
interest pursuant to Commission Rule 201.50(a)(4). Also on June 6,
2012, several non-parties filed public interest statements in response
to the post-RD Commission Notice issued on May 15, 2012. See 77 FR
28621-22 (May 15, 2012). The non-parties include: Federal Trade
Commission; Business Software Alliance; Association for Competitive
Technology; Retail Industry Leaders Association; Verizon; Nokia
Corporation; Hewlett-Packard Company; and Microsoft Corporation.
On June 25, 2012, the Commission determined to review the final ID
in part and requested briefing on the issues it determined to review,
remedy, the public interest, and bonding. 77 FR 38826-29 (June 29,
2012). Specifically, with respect to the '223 patent the Commission
determined to review the ID's construction of the limitation ``access
priority value'' in claim 1. The Commission also determined to review
the ID with respect to the validity of claim 1 of the '223 patent under
35 U.S.C. 102 in light of U.S. Patent No. 5,453,987 to Tran (``Tran
'987) and U.S. Patent No. 5,657,317 to Mahany et al. (``Mahany '317'')
and under 35 U.S.C. 103 in light of Tran '987 in combination with
Mahany '317. The Commission further determined to review the ID's
finding that the 802.11n standard necessarily practices claim 1 of the
'223 patent, and thus, the ID's findings concerning infringement and
the technical prong of the domestic industry requirement with respect
to the '223 patent.
With respect to the '697 patent, the Commission determined to
review the ID's construction of the limitation ``selecting a chip time
in a complex PN [pseudonoise] sequence generator'' in claim 1. The
Commission also determined to review the ID's construction of the
limitation ``restricting a phase difference between a previous complex
PN chip and a next complex PN chip to a preselected phase angle.'' The
Commission further determined to review the ID's findings with respect
to the validity of claims 1-4 of the '697 patent under 35 U.S.C. 102 in
light of prior art [pi]/2-shift BPSK modulation and under 35 U.S.C. 103
in light of the combination of prior art QPSK and [pi]/2-shift BPSK
modulation schemes. The Commission also determined to review the ID's
finding of direct and induced infringement with respect to the '697
patent. The Commission further determined to review the ID's finding
that Motorola has satisfied the technical prong of the domestic
industry requirement for the '697 patent.
With respect to the '862 patent, the Commission determined to
review the ID's construction of the limitation ``close proximity to a
user'' in claim 1 and his finding that claim 1 is indefinite.
With respect to the '333 patent, the Commission determined to
review the ID's construction of the limitation ``a list of all software
applications that are currently accessible to the subscriber unit'' in
claim 12. The Commission further determined to review the ALJ's finding
that claim 12 is not invalid under 35 U.S.C. 102 in light of U.S.
Patent Nos. 5,502,831 to Grube et al. (``Grube '831''), 6,008,737 to
DeLuca et al. (``DeLuca '797''), or 5,612,682 to DeLuca et al.
(``DeLuca '682''), or under 35 U.S.C. 103 in view of Grube '831
combined with DeLuca '682. The Commission also determined to review the
ALJ's finding of non-infringement of claim 12. The Commission further
determined to review the ID's finding that Motorola's domestic industry
product does not practice claim 12 of the '333 patent.
With respect to whether Motorola has satisfied the economic prong
of the domestic industry requirement, the Commission determined to
review the ID's finding that Motorola has not satisfied the economic
prong as to the '333 patent under section 337(a)(3)(C) by its
investments in licensing. The Commission also determined to review in
part the ID's finding that Motorola has satisfied the economic prong
with respect to the '223 and '697 patents under section 337(a)(3)(A)
and (B). The Commission determined not to review the remaining issues
decided in the ID.
On July 9, 2012, the Motorola and Apple filed initial written
submissions regarding the issues on review, remedy, the public
interest, and bonding. On July 16, 2012, the parties filed response
submissions. Also on July 9, 2012, several non-parties filed
submissions concerning the public interest. On July 16, 2012, several
non-parties filed response submissions.
Having examined the record of this investigation, including the
ALJ's final ID and the parties' submissions, the Commission has
determined to affirm the final ID's finding of no violation as to the
'223 and '333 patents and to reverse the finding of violation as to the
'697 patent. The Commission has also determined remand the
investigation to the ALJ with respect to the '862 patent.
Specifically, the Commission has determined to affirm the ID's
finding of no violation with respect to the '223 patent with
modifications. In particular, the Commission has determined to modify
the ID's claim construction of the claim limitation ``access priority
value'' in claim 1 to mean ``a value based on information available to
the terminal, or based on information available to the terminal and
information received from the infrastructure, used to determine
relative priority among multiple terminals for access to a data
communications system.'' The Commission has determined to affirm the
ID's finding that claim 1 of the '223 patent is anticipated by Mahany
'317 and Tran '987. The Commission also finds that claim 1 of the '223
patent is obvious in light of Tran '987 in combination with Mahany
'317. The Commission has determined to reverse the ID's finding that
products compliant with the 802.11n standard necessarily practice claim
1 of the '223 patent. The Commission, therefore, finds that the accused
products do not infringe claim 1 of the '233 patent and that Motorola
has not satisfied the technical prong of the domestic industry
requirement with respect to the '223 patent.
With respect to the '697 patent, the Commission has determined to
reverse the ID's finding of violation of section 337. In particular,
the Commission has determined to affirm, with modified reasoning, the
ID's construction of the limitation ``selecting every chip time'' of
claim 1 of the '697 patent. The Commission also finds that the
limitation ``restricting a phase difference between a previous complex
PN chip and a next complex PN chip to a preselected phase angle'' in
claim 1 means ``at the selected chip time, the next complex PN chip is
limited to a predetermined phase transition,'' with the understanding
that the phrase ``preselected phase angle'' requires a single unique
angle with a predetermined direction and magnitude at a particular
``selected chip time,'' but that the phase transition need not be the
same at every chip time. The Commission further finds that claim 1 is
limited to [pi]/2 BPSK modulation ``at selected chip times,'' and thus,
that the claimed ``phase difference'' must be 90[deg] ``at
selected chip times.'' The Commission affirms the ID's finding that
claims 1-4 of the '697 patent are not anticipated by prior art [pi]/2-
shift BPSK modulation. The Commission also affirms the ID's finding
that claims 1-4 are not obviousness in light of the
[[Page 52761]]
combination of prior art QPSK and [pi]/2-shift BPSK modulation schemes.
The Commission reverses the ID's finding that generation of the
complex-valued long scrambling sequence, Clong,n used to
scramble PRACH messages in the scheme defined by the 3GPP-UMTS standard
necessarily practices the method claims 1-4 of the '697 patent, and
thus, finds no direct or induced infringement with respect to the '697
patent. The Commission further reverses the ID's finding that Motorola
has satisfied the technical prong of the domestic industry requirement
for the '697 patent, and finds that Motorola has not satisfied this
requirement.
With respect to the '862 patent, the Commission has determined to
reverse the ID's finding that claim 1 is indefinite. The Commission
remands the investigation to the ALJ to consider the issues of
infringement, validity, and the domestic industry requirement for the
'862 patent.
With respect to the '333 patent, the Commission has determined to
affirm the ID's finding of no violation of section 337 with
modifications. In particular, the Commission finds that the limitation
``a list of all software applications that are currently accessible to
the subscriber unit'' of claim 12 means ``a list of all software
applications that are available and enabled for present use by the
subscriber.'' The Commission affirms the ID's finding that claim 12 of
the '333 patent is not anticipated by Grube '831, DeLuca '737 or DeLuca
'682, and is not rendered obvious by Grube '831 in view of DeLuca '682.
The Commission also affirms, with modified reasoning, the ALJ's finding
of non-infringement of claim 12 of the '333 patent. The Commission
further affirms, with modified reasoning, the ID's finding that
Motorola's domestic industry product does not practice claim 12 of the
'333 patent.
With respect to whether Motorola has satisfied the economic prong
of the domestic industry requirement, the Commission has determined to
affirm-in-part the ID's finding that Motorola has satisfied the
economic prong of the domestic industry requirement under section
337(a)(3)(A) and (B) by making substantial investments in its CliqXT
and Droid 2 products, and further finds that these investments satisfy
the economic prong requirement as to the `223, `697, and `333 patents.
In addition to its investments in seedstock for its CliqXT and Droid 2
products, the Commission also finds that Motorola's expenditures
relating to the creation of prototypes for its CliqXT and Droid 2
products and its costs associated with post-assembly loading of vendor-
specific software and testing of those products are sufficient to
support a finding that Motorola has satisfied the economic prong under
section 337(a)(3)(A) and (B). The Commission vacates and takes no
further position on the ID's finding that Motorola has not satisfied
the economic prong as to the '333 patent under section 337(a)(3)(C) for
its investments in licensing.
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-.50 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42-.50).
By order of the Commission.
Issued: August 24, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-21373 Filed 8-29-12; 8:45 am]
BILLING CODE 7020-02-P
