Certain Digital Photo Frames and Image Display Devices and Components Thereof; Commission Determination Not To Review an Initial Determination Extending the Target Date and Finding the Remaining Respondent Pandigital, Inc. in Default and in Violation of Section 337; and Request for Submissions, 74220-74221 [2012-30042]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Notices]
[Pages 74220-74221]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30042]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-807]


Certain Digital Photo Frames and Image Display Devices and 
Components Thereof; Commission Determination Not To Review an Initial 
Determination Extending the Target Date and Finding the Remaining 
Respondent Pandigital, Inc. in Default and in Violation of Section 337; 
and Request for Submissions

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined not to review an initial determination 
(``ID'') (Order No. 48) of the presiding administrative law judge 
(``ALJ''): (1) Extending the target date for completion of the above-
captioned investigation by nine days to March 7, 2013; and (2) finding 
the remaining respondent Pandigital, Inc. (``Pandigital'') of Dublin, 
California in default and in violation of section 337. The Commission 
also is requesting written submissions including submissions on remedy, 
the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2310. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
telephone (202) 205-2000. General information concerning the Commission 
may also be obtained by accessing its Internet server at https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. 
Hearing-impaired persons are advised that information on this matter 
can be obtained by contacting the Commission's TDD terminal on (202) 
205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on September 27, 2011, based on a complaint filed by Technical 
Properties Limited, LLC (``TPL'') of Cupertino, California. 76 FR 
59737-38. The complaint alleges a violation 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 digital photo frames and 
image display devices and components thereof by reason of infringement 
of certain claims of U.S. Patent Nos. 6,976,623 (``the '623 patent''); 
7,162,549; 7,295,443; and 7,522,424. The complaint further alleges the 
existence of a domestic industry. The Commission's notice of 
investigation named twenty respondents including Nextar Inc. of La 
Verne, California; WinAccord Ltd. of Taipei, Taiwan; and WinAccord 
U.S.A., Inc. of San Jose, California (collectively, ``the WinAccord 
respondents''); Aiptek International Inc. (``Aiptek'') of Hsinchu, 
Taiwan; and Pandigital. All other respondents have been terminated from 
the investigation by consent order stipulation or settlement agreement. 
The '623 patent was terminated from the investigation with respect to 
Pandigital by consent order stipulation. The complaint and notice of 
investigation were served on all respondents including Aiptek and the 
WinAccord respondents on September 22, 2011. See Notice of 
Investigation, Certificate of Service (Sept. 22, 2011) (EDIS Document 
459720). No Commission investigative attorney is participating in the 
investigation.
    On December 6 and 22, 2011, respectively, the ALJ issued IDs 
finding the WinAccord respondents and Aiptek in default, pursuant to 19 
CFR 210.13 and 210.16, because these respondents did not respond to the 
complaint and notice of investigation, or to Order Nos. 13 and/or 15 to 
show cause. On January 3 and 9, 2012, respectively, the Commission 
determined not to review the IDs finding the WinAccord respondents and 
Aiptek in default.
    On March 8, 2012, complainant TPL filed a declaration requesting 
immediate relief against the defaulting respondent Aiptek under 
Commission rule 210.16(c)(1), 19 CFR 210.16(c)(1), which it later 
withdrew.
    On October 9, 2012, the ALJ issued Order No. 47 to Pandigital show 
cause why it should not be found in default and in violation of section 
337 pursuant to 19 CFR 210.17 because respondent did not file a pre-
hearing statement and brief as required by the ALJ's Procedural 
Schedule. As of November 7, 2012, Pandigital had not responded to Order 
No. 47 and the ALJ issued the subject ID finding Pandigital in default 
and in violation of section 337. The ID also extended the target date 
of the investigation by nine days from February 26, 2013 to March 7, 
2013. The ID also contained the ALJ's

[[Page 74221]]

recommended determination on remedy. Specifically, the ALJ recommended 
issuance of a limited exclusion order, cease and desist order, and a 
bond in the amount of 100 percent of the covered products during the 
period of Presidential review with respect to Pandigital. No party 
petitioned for review of the ID.
    The Commission has determined not to review the subject ID. The 
Commission notes that in the subject ID, the ALJ retroactively extended 
the target date by nine days, to account for the delay in the issuance 
of his final ID finding Pandigital in default and in violation of 
section 337. The delay was caused by TPL's failure to properly serve 
its motion seeking default against Pandigital. Extension of the target 
date in this circumstance was not necessary because the Commission did 
not require additional time to complete this investigation. In any 
event, we note that an ID extending the target date must be issued in 
advance of the final ID, rather than retroactively.
    Section 337(g)(1) (19 U.S.C. 1337(g)(1)) and Commission Rule 
210.16(c) (19 CFR 210.16(c)) authorize the Commission to order limited 
relief against respondents, such as Aiptek and the WinAccord 
respondents, found in default for failure to respond to the complaint 
and notice of investigation, unless after consideration of the public 
interest factors, it finds that such relief should not issue. With 
respect to Pandigital, 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. See 19 U.S.C. 337(d)(1). 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.
    The Commission also requests additional briefing from TPL 
addressing the following issues:
    (1) Assuming TPL requests a cease and desist order (``CDO'') 
against Aiptek, does the evidence support a finding that Aiptek 
maintains a commercially significant inventory of accused products in 
the United States or otherwise has significant domestic ties sufficient 
to warrant imposition of a CDO as to this foreign respondent? See 
Certain Agricultural Tractors, Lawn Tractors, Riding Lawnmowers, and 
Components Thereof, Inv. No. 337-TA-486, Comm'n Op. at 17 (Aug. 19, 
2003).
    (2) In its previous briefing of March 8 and April 23, 2012, TPL 
previously asserted that section 337(j)(3) does not permit importation 
under bond with respect to a defaulting respondent under section 
337(g). Does TPL maintain that position?
    (3) What evidence does Complainant rely upon in support of a bond 
amount for Aiptek, Pandigital, and the WinAccord respondents? In your 
answer, please address the applicability of Order Nos. 9, 12, 16, 18-
20, 23, and 28.
    Written Submissions: 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 as well as issues 
concerning whether respondents found in default under section 337(g) 
may import under bond during the period of Presidential review.
    Complainant is also requested to submit proposed remedial orders 
for the Commission's consideration. Complainant is also requested to 
state the dates that the asserted 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 December 21, 2012. Reply submissions must be filed no later 
than the close of business on December 28, 2012. No further submissions 
on these issues will be permitted unless otherwise ordered by the 
Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines stated above and submit 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to Commission rule 210.4(f), 19 CFR 210.4(f). Submissions 
should refer to the investigation number (``Inv. No. 337-TA-807'') in a 
prominent place on the cover page and/or the first page. (See Handbook 
for Electronic Filing Procedures, https://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf).
    Any person desiring to submit a document (or portion thereof) 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 section 201.6 of the 
Commission's Rules of Practice and Procedure, 19 CFR 201.6. 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 210.17, 210.42-46, and 210.50 of the Commission's Rules of 
Practice and Procedure (19 CFR 210.17, 210.42-46, and 210.50).

    By order of the Commission.

     Issued: December 7, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-30042 Filed 12-12-12; 8:45 am]
BILLING CODE 7020-02-P