Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof; Commission Decision To Review in Part a Remand Initial Determination Finding No Violation of Section 337; Request for Written Submissions, 12785-12786 [2013-04183]
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Federal Register / Vol. 78, No. 37 / Monday, February 25, 2013 / Notices
will make available to parties all
information on which they have not had
an opportunity to comment. Parties may
submit final comments on this
information on or before September 9,
2013, but such final comments must not
contain new factual information and
must otherwise comply with section
207.68 of the Commission’s rules. All
written submissions must conform with
the provisions of section 201.8 of the
Commission’s rules; any submissions
that contain BPI must also conform with
the requirements of sections 201.6,
207.3, and 207.7 of the Commission’s
rules. Please be aware that the
Commission’s rules with respect to
electronic filing have been amended.
The amendments took effect on
November 7, 2011. See 76 Fed. Reg.
61937 (Oct. 6, 2011) and the newly
revised Commission’s Handbook on EFiling, available on the Commission’s
Web site at https://edis.usitc.gov.
Additional written submissions to the
Commission, including requests
pursuant to section 201.12 of the
Commission’s rules, shall not be
accepted unless good cause is shown for
accepting such submissions, or unless
the submission is pursuant to a specific
request by a Commissioner or
Commission staff.
In accordance with sections 201.16(c)
and 207.3 of the Commission’s rules,
each document filed by a party to the
review must be served on all other
parties to the review (as identified by
either the public or BPI service list), and
a certificate of service must be timely
filed. The Secretary will not accept a
document for filing without a certificate
of service.
Authority: This review is being conducted
under authority of title VII of the Tariff Act
of 1930; this notice is published pursuant to
section 207.62 of the Commission’s rules.
By order of the Commission.
Issued: February 19, 2013.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013–04163 Filed 2–22–13; 8:45 am]
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INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–745]
Certain Wireless Communication
Devices, Portable Music and Data
Processing Devices, Computers and
Components Thereof; Commission
Decision To Review in Part a Remand
Initial Determination Finding No
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’’) remand initial
determination (‘‘Remand ID’’) issued on
December 18, 2012, finding no violation
of section 337 of the Tariff Act of 1930,
19 U.S.C. 1337 in the above-captioned
investigation.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Megan M. Valentine, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
708–2301. Copies of non-confidential
documents filed in connection with this
investigation are or will be available for
inspection during official business
hours (8:45 a.m. to 5:15 p.m.) in the
Office of the Secretary, U.S.
International Trade Commission, 500 E
Street SW., Washington, DC 20436,
telephone (202) 205–2000. General
information concerning the Commission
may also be obtained by accessing its
Internet server at https://www.usitc.gov.
The public record for this investigation
may be viewed on the Commission’s
electronic docket (EDIS) at https://
edis.usitc.gov. Hearing-impaired
persons are advised that information on
this matter can be obtained by
contacting the Commission’s TDD
terminal on (202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on November 8, 2010, based on a
complaint filed by Motorola Mobility,
Inc. of Libertyville, Illinois. 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
PO 00000
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Sfmt 4703
12785
infringement of certain claims of U.S.
Patent Nos. 6,272,333 (‘‘the ’333
patent’’); 6,246,862 (‘‘the ’862 patent’’);
6,246,697 (‘‘the ’697 patent’’); 5,359,317
(‘‘the ’317 patent’’); 5,636,223 (‘‘the ’223
patent’’); and 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 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. On June 25, 2012,
the Commission determined to review
the final ID in part. 77 FR 38826–29
(June 29, 2012). On August 24, 2012, the
Commission found no violation with
respect to the ’333 patent, the ’697
patent, and the ’223 patent. 77 FR
52759–761 (Aug. 30, 2012). The
Commission remanded the investigation
to the ALJ with respect to the ’862
patent upon reversing his finding that
the asserted claim of the patent is
invalid as indefinite. Id.; see Order
(Aug. 24, 2012). Specifically, the
Commission instructed the ALJ to make
findings regarding infringement,
validity, and domestic industry
concerning the asserted claim of the
’862 patent. The Commission’s Order
instructed the ALJ to set a new target as
necessary to accommodate the remand
proceedings. On October 1, 2012, the
ALJ issued Order No. 36, setting the
target date for completion of the remand
proceedings as April 22, 2013. Order
No. 36 (Oct. 1, 2012). On October 18,
2012, the Commission determined not
to review the ID setting the new target
date. Notice (Oct. 18, 2012).
On December 18, 2012, the ALJ issued
his Remand ID, finding no violation of
section 337 with respect to the ’862
patent. In particular, the ALJ found that
the relevant accused products infringe
claim 1 of the ’862 patent literally and
under the doctrine of equivalents. The
ALJ also found, however, that claim 1 is
invalid as anticipated by U.S. Patent No.
6,052,464 to Harris (‘‘Harris ’464’’). The
ALJ further found that claim 1 is not
invalid for obviousness in light of Harris
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’464 in combination with the knowledge
of one of ordinary skill in the art or in
combination with U.S. Patent No.
5,894,298 to Hoeksma (‘‘Hoeksma
’298’’). The ALJ also found that
Motorola has satisfied the economic and
technical prongs of the domestic
industry requirement with respect to the
’862 patent.
On January 7, 2013, Motorola filed a
petition for review of certain aspects of
the Remand ID’s findings concerning
claim construction and validity. Also on
January 7, 2013, Apple filed a petition
for review of certain aspects of the final
ID’s findings concerning infringement.
On January 15, 2013, Motorola filed a
response to Apple’s petition. Also on
January 15, 2013, Apple filed a response
to Motorola’s petition.
Having examined the record of this
investigation, including the ALJ’s
Remand ID, the petitions for review, and
the responses thereto, the Commission
has determined to review the Remand
ID in part. Specifically, the Commission
has determined to review the Remand
ID’s construction of the claim limitation
‘‘touch sensitive input device’’ in claim
1 of the ’862 patent. The Commission
has further determined to review the
Remand ID’s finding that the accused
products literally infringe claim 1 of the
’862 patent. The Commission has also
determined to review the Remand ID’s
finding that Harris ’464 anticipates
claim 1 of the ’862 patent. The
Commission has further determined to
review the Remand ID’s finding of nonobviousness pursuant to section 210.44
of the Commission’s Rules of Practice
and Procedure (19 CFR 210.44).
The Commission has determined not
to review the remaining issues decided
in the Remand ID.
In connection with its review, the
parties are requested to brief their
positions on the issue of whether claim
1 of the ’862 patent is obvious in view
of Harris ’464 in combination with the
knowledge of one of ordinary skill in
the art or in combination with Hoeksma
’298. The Commission is particularly
interested in responses to the following
question:
Does the evidence in the record support a
finding that claim 1 of the ’862 patent is
obvious in view of Harris ’464 in
combination with the knowledge of one of
ordinary skill in the art or in combination
with Hoeksma ’298 where the evidence
demonstrates that the existence of portable
communication devices using ‘‘touch
sensitive input devices,’’ including touch
screens, were known in the art prior to the
filing of the application leading to the ’862
patent and is disclosed in Hoeksma ’298? In
discussing this issue, please refer to the
teachings of the references, the knowledge of
one of ordinary skill in the art at the time of
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filing of the ’862 patent application, and the
evidence in the record regarding the
motivation to combine Harris ’464 with the
knowledge of one of ordinary skill in the art
or with Hoeksma ’298. Also, please address
whether there are any secondary
considerations that would prevent a finding
of obviousness.
The parties have been invited to brief
only the discrete issues described above,
with reference to the applicable law and
evidentiary record. The parties are not
to brief other issues on review, which
are adequately presented in the parties’
existing filings.
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 a cease
and desist order that could result in the
respondent being required to cease and
desist from engaging in unfair acts in
the importation and sale of such
articles. 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 a
cease and desist order 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.
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 will consider the
issues related to remedy, the public
interest, and bonding based upon filings
previously submitted by the parties to
the investigation, interested government
agencies, the Office of Unfair Import
Investigations, and other interested
parties. See Public Interest submissions
filed on July 9, 2012. We also note that
the Complainant has previously
provided the dates that the patent-atissue expires and the HTSUS numbers
under which the accused products are
imported. See Complainant Motorola
Mobility LLC’s Opening Brief on
Commission Review (Public Ver.) at 70
(July 19, 2012). Complainant has also
previously submitted proposed remedial
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orders for the Commission’s
consideration. See id. at Exhs. 7 & 8.
Written Submissions: The parties to
the investigation are requested to file
written submissions on the issues
identified in this notice. The written
submissions must be filed no later than
close of business on March 8, 2013.
Reply submissions must be filed no later
than the close of business on March 15,
2013. 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 section
210.4(f) of the Commission’s Rules of
Practice and Procedure (19 CFR
210.4(f)). Submissions should refer to
the investigation number (‘‘Inv. No.
337–TA–745’’) 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).
Persons with questions regarding filing
should contact the Secretary (202–205–
2000).
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
the any confidential filing. All nonconfidential written submissions will be
available for public inspection at the
Office of the Secretary and on EDIS.
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: February 19, 2013.
By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013–04183 Filed 2–22–13; 8:45 am]
BILLING CODE 7020–02–P
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]]>Agencies
[Federal Register Volume 78, Number 37 (Monday, February 25, 2013)]
[Notices]
[Pages 12785-12786]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04183]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-745]
Certain Wireless Communication Devices, Portable Music and Data
Processing Devices, Computers and Components Thereof; Commission
Decision To Review in Part a Remand Initial Determination Finding No
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'') remand initial determination
(``Remand ID'') issued on December 18, 2012, finding no violation of
section 337 of the Tariff Act of 1930, 19 U.S.C. 1337 in the above-
captioned investigation.
FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-2301. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its Internet server at https://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov.
Hearing-impaired persons are advised that information on this matter
can be obtained by contacting the Commission's TDD terminal on (202)
205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on November 8, 2010, based on a complaint filed by Motorola Mobility,
Inc. of Libertyville, Illinois. 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 U.S.
Patent Nos. 6,272,333 (``the '333 patent''); 6,246,862 (``the '862
patent''); 6,246,697 (``the '697 patent''); 5,359,317 (``the '317
patent''); 5,636,223 (``the '223 patent''); and 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 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. On June 25, 2012, the
Commission determined to review the final ID in part. 77 FR 38826-29
(June 29, 2012). On August 24, 2012, the Commission found no violation
with respect to the '333 patent, the '697 patent, and the '223 patent.
77 FR 52759-761 (Aug. 30, 2012). The Commission remanded the
investigation to the ALJ with respect to the '862 patent upon reversing
his finding that the asserted claim of the patent is invalid as
indefinite. Id.; see Order (Aug. 24, 2012). Specifically, the
Commission instructed the ALJ to make findings regarding infringement,
validity, and domestic industry concerning the asserted claim of the
'862 patent. The Commission's Order instructed the ALJ to set a new
target as necessary to accommodate the remand proceedings. On October
1, 2012, the ALJ issued Order No. 36, setting the target date for
completion of the remand proceedings as April 22, 2013. Order No. 36
(Oct. 1, 2012). On October 18, 2012, the Commission determined not to
review the ID setting the new target date. Notice (Oct. 18, 2012).
On December 18, 2012, the ALJ issued his Remand ID, finding no
violation of section 337 with respect to the '862 patent. In
particular, the ALJ found that the relevant accused products infringe
claim 1 of the '862 patent literally and under the doctrine of
equivalents. The ALJ also found, however, that claim 1 is invalid as
anticipated by U.S. Patent No. 6,052,464 to Harris (``Harris '464'').
The ALJ further found that claim 1 is not invalid for obviousness in
light of Harris
[[Page 12786]]
'464 in combination with the knowledge of one of ordinary skill in the
art or in combination with U.S. Patent No. 5,894,298 to Hoeksma
(``Hoeksma '298''). The ALJ also found that Motorola has satisfied the
economic and technical prongs of the domestic industry requirement with
respect to the '862 patent.
On January 7, 2013, Motorola filed a petition for review of certain
aspects of the Remand ID's findings concerning claim construction and
validity. Also on January 7, 2013, Apple filed a petition for review of
certain aspects of the final ID's findings concerning infringement. On
January 15, 2013, Motorola filed a response to Apple's petition. Also
on January 15, 2013, Apple filed a response to Motorola's petition.
Having examined the record of this investigation, including the
ALJ's Remand ID, the petitions for review, and the responses thereto,
the Commission has determined to review the Remand ID in part.
Specifically, the Commission has determined to review the Remand ID's
construction of the claim limitation ``touch sensitive input device''
in claim 1 of the '862 patent. The Commission has further determined to
review the Remand ID's finding that the accused products literally
infringe claim 1 of the '862 patent. The Commission has also determined
to review the Remand ID's finding that Harris '464 anticipates claim 1
of the '862 patent. The Commission has further determined to review the
Remand ID's finding of non-obviousness pursuant to section 210.44 of
the Commission's Rules of Practice and Procedure (19 CFR 210.44).
The Commission has determined not to review the remaining issues
decided in the Remand ID.
In connection with its review, the parties are requested to brief
their positions on the issue of whether claim 1 of the '862 patent is
obvious in view of Harris '464 in combination with the knowledge of one
of ordinary skill in the art or in combination with Hoeksma '298. The
Commission is particularly interested in responses to the following
question:
Does the evidence in the record support a finding that claim 1
of the '862 patent is obvious in view of Harris '464 in combination
with the knowledge of one of ordinary skill in the art or in
combination with Hoeksma '298 where the evidence demonstrates that
the existence of portable communication devices using ``touch
sensitive input devices,'' including touch screens, were known in
the art prior to the filing of the application leading to the '862
patent and is disclosed in Hoeksma '298? In discussing this issue,
please refer to the teachings of the references, the knowledge of
one of ordinary skill in the art at the time of filing of the '862
patent application, and the evidence in the record regarding the
motivation to combine Harris '464 with the knowledge of one of
ordinary skill in the art or with Hoeksma '298. Also, please address
whether there are any secondary considerations that would prevent a
finding of obviousness.
The parties have been invited to brief only the discrete issues
described above, with reference to the applicable law and evidentiary
record. The parties are not to brief other issues on review, which are
adequately presented in the parties' existing filings.
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 a cease and desist order that could result in the respondent
being required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. 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 a cease and desist order
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.
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 will consider the issues related to remedy, the
public interest, and bonding based upon filings previously submitted by
the parties to the investigation, interested government agencies, the
Office of Unfair Import Investigations, and other interested parties.
See Public Interest submissions filed on July 9, 2012. We also note
that the Complainant has previously provided the dates that the patent-
at-issue expires and the HTSUS numbers under which the accused products
are imported. See Complainant Motorola Mobility LLC's Opening Brief on
Commission Review (Public Ver.) at 70 (July 19, 2012). Complainant has
also previously submitted proposed remedial orders for the Commission's
consideration. See id. at Exhs. 7 & 8.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues identified in this notice.
The written submissions must be filed no later than close of business
on March 8, 2013. Reply submissions must be filed no later than the
close of business on March 15, 2013. 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 section 210.4(f) of the Commission's Rules of Practice and
Procedure (19 CFR 210.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-745'') 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). Persons with questions
regarding filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted non-confidential version of the document must also be filed
simultaneously with the any confidential filing. All non-confidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
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: February 19, 2013.
By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-04183 Filed 2-22-13; 8:45 am]
BILLING CODE 7020-02-P
