Certain Electronic Digital Media Devices and Components Thereof; Determination To Review a Remand Initial Determination; Schedule for Filing Written Submissions on Certain Issues Under Review and on Remedy, Bonding, and the Public Interest, 33110-33112 [2013-12979]
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dollars). If you are a trade/business
association, provide the information, on
an aggregate basis, for the firms which
are members of your association.
(a) The quantity and value (landed,
duty-paid but not including
antidumping or countervailing duties)
of U.S. imports and, if known, an
estimate of the percentage of total U.S.
imports of Subject Merchandise from
the Subject Country accounted for by
your firm’s(s’) imports;
(b) the quantity and value (f.o.b. U.S.
port, including antidumping and/or
countervailing duties) of U.S.
commercial shipments of Subject
Merchandise imported from the Subject
Country; and
(c) the quantity and value (f.o.b. U.S.
port, including antidumping and/or
countervailing duties) of U.S. internal
consumption/company transfers of
Subject Merchandise imported from the
Subject Country.
(11) If you are a producer, an exporter,
or a trade/business association of
producers or exporters of the Subject
Merchandise in the Subject Country,
provide the following information on
your firm’s(s’) operations on that
product during calendar year 2012
(report quantity data in short tons and
value data in U.S. dollars, landed and
duty-paid at the U.S. port but not
including antidumping or
countervailing duties). If you are a
trade/business association, provide the
information, on an aggregate basis, for
the firms which are members of your
association.
(a) Production (quantity) and, if
known, an estimate of the percentage of
total production of Subject Merchandise
in the Subject Country accounted for by
your firm’s(s’) production;
(b) Capacity (quantity) of your firm(s)
to produce the Subject Merchandise in
the Subject Country (i.e., the level of
production that your establishment(s)
could reasonably have expected to
attain during the year, assuming normal
operating conditions (using equipment
and machinery in place and ready to
operate), normal operating levels (hours
per week/weeks per year), time for
downtime, maintenance, repair, and
cleanup, and a typical or representative
product mix); and
(c) the quantity and value of your
firm’s(s’) exports to the United States of
Subject Merchandise and, if known, an
estimate of the percentage of total
exports to the United States of Subject
Merchandise from the Subject Country
accounted for by your firm’s(s’) exports.
(12) Identify significant changes, if
any, in the supply and demand
conditions or business cycle for the
Domestic Like Product that have
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occurred in the United States or in the
market for the Subject Merchandise in
the Subject Country since the Order
Date, and significant changes, if any,
that are likely to occur within a
reasonably foreseeable time. Supply
conditions to consider include
technology; production methods;
development efforts; ability to increase
production (including the shift of
production facilities used for other
products and the use, cost, or
availability of major inputs into
production); and factors related to the
ability to shift supply among different
national markets (including barriers to
importation in foreign markets or
changes in market demand abroad).
Demand conditions to consider include
end uses and applications; the existence
and availability of substitute products;
and the level of competition among the
Domestic Like Product produced in the
United States, Subject Merchandise
produced in the Subject Country, and
such merchandise from other countries.
(13) (OPTIONAL) A statement of
whether you agree with the above
definitions of the Domestic Like Product
and Domestic Industry; if you disagree
with either or both of these definitions,
please explain why and provide
alternative definitions.
Authority: These reviews are being
conducted under authority of Title VII of the
Tariff Act of 1930; this notice is published
pursuant to section 207.61 of the
Commission’s rules.
Issued: May 29, 2013.
By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013–13085 Filed 5–31–13; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–796]
Certain Electronic Digital Media
Devices and Components Thereof;
Determination To Review a Remand
Initial Determination; Schedule for
Filing Written Submissions on Certain
Issues Under Review and on Remedy,
Bonding, and the Public Interest
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
the remand initial determination
(‘‘RID’’) issued by the presiding
administrative law judge (‘‘ALJ’’) on
SUMMARY:
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March 26, 2013 in its entirety. The
Commission requests certain briefing
from the parties on the issues under
review, as indicated in this notice. The
Commission also requests briefing from
the parties and the public on the issues
of remedy, bonding, and the public
interest.
FOR FURTHER INFORMATION CONTACT:
Cathy Chen, Esq., Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
205–2392. 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.
The
Commission instituted this investigation
on August 5, 2011, based on a complaint
filed by Apple Inc. (‘‘Apple’’) of
Cupertino, California. 76 FR 47610
(Aug. 5, 2011). The complaint alleges
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C.
1337, in the importation into the United
States, the sale for importation, and the
sale within the United States after
importation of certain electronic digital
media devices and components thereof
by reason of infringement of certain
claims of U.S. Patent Nos. 7,479,949
(‘‘the ’949 patent’’); RE 41,922 (‘‘the ’922
patent’’); 7,863,533 (‘‘the ’533 patent’’);
7,789,697 (‘‘the ’697 patent’’); 7,912,501
(‘‘the ’501 patent’’); D558,757 (‘‘the
D’757 patent’’); and D618,678 (‘‘the
D’678 patent’’) (collectively, ‘‘the
Asserted Patents’’). The complaint
further alleges the existence of a
domestic industry. The respondents
named in the Commission’s notice of
investigation are Samsung Electronics
Co, Ltd. of the Republic of Korea;
Samsung Electronics America, Inc. of
Ridgefield Park, New Jersey; and
Samsung Telecommunications America,
LLC of Richardson, Texas (collectively,
‘‘Samsung’’). A Commission
investigative attorney (‘‘IA’’)
participated in the investigation.
SUPPLEMENTARY INFORMATION:
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On May 3, 2012, the ALJ issued an ID
partially terminating the investigation
with respect to all claims of the ’533
patent; claims 1–3, 11, 12, 15, 16 and
21–27 of the ’697 patent; and claim 3 of
the ’949 patent (Order No. 17) (not
reviewed by the Commission, May 3,
2012).
On October 24, 2012, the ALJ issued
his final ID in this investigation finding
a violation of section 337 in connection
with the claim of the D’678 patent;
claims 1, 4–6 and 10–20 of the ’949
patent; claims 29, 30 and 33–35 of the
’922 patent; and claims 1–4 and 8 of the
’501 patent. The ALJ found no violation
of section 337 in connection with the
claim of the D’757 patent; claims 31 and
32 of the ’922 patent; and claims 13 and
14 of the ’697 patent. The ALJ also
found that the asserted claims of the
Asserted Patents were not shown to be
invalid. The ALJ further found that a
domestic industry in the United States
exists that practices the Asserted
Patents, except for the ’697 patent. On
November 7, 2012, the ALJ issued his
recommended determination on remedy
and bonding.
Apple and Samsung filed timely
petitions for review of various portions
of the final ID, as well as timely
responses to the petitions. The IA filed
only a response to the petitions for
review. On December 3, 2012, Apple
and Samsung filed public interest
comments pursuant to Commission rule
210.50(a)(4). That same day, non-party
Google filed a submission in response to
the Notice of Request for Statements on
the Public Interest. See 77 FR 68829–30
(Nov. 16, 2012).
On January 23, 2013, the Commission
determined to review the final ID in its
entirety, and remand the investigation
to the ALJ with respect to certain issues
related to the ’922 patent and the ’501
patent, as set forth in the Remand Order.
78 FR 6130 (Jan. 29, 2013). In light of
the remand, briefing on the reviewed
issues and on remedy, bonding, and the
public interest were postponed until the
Commission’s consideration of the RID.
On March 26, 2013, the ALJ issued his
RID. The RID found that claims 34 and
35 of the ’922 patent are infringed by the
text-selection feature of the accused
products and that claim 3 of the ’501
patent is not infringed by the accused
products represented by the Transform
SPH–M920. On April 9, 2013, Apple
and Samsung petitioned for review of
the RID. The IA did not petition for
review of the RID. On April 17, 2013,
Apple, Samsung and the IA filed their
respective responses to the petitions for
review.
Having reviewed the evidence of
record and the parties’ submissions, the
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Commission has determined to review
the RID in its entirety.
In connection with its review of the
final ID and the RID, the parties are
invited to brief only the discrete issues
enumerated below, with reference to the
applicable law and the evidentiary
record. The parties are not to brief other
issues on review, which are adequately
presented in the parties’ existing filings.
1. Is the ‘‘material or apparatus’’ used
in practicing the patented methods
asserted in the ’949 patent that is
relevant to a substantial noninfringing
use analysis the ‘‘combination of source
code and hardware elements relied
upon by Dr. Balakrishnan in his witness
statement,’’ as argued by Apple (Apple
Pet. at 50–51)? To the extent that it is,
what evidence in the record shows that
the ‘‘combination of source code and
hardware elements’’ is adapted for use
in an infringement of the ’949 patent
and that it does not have any substantial
noninfringing use?
2. Is the ‘‘material or apparatus’’ used
in practicing the patented methods
asserted in the ’922 patent that is
relevant to a substantial noninfringing
use analysis the ‘‘combination of source
code and hardware elements relied
upon by Dr. Balakrishnan in his witness
statement,’’ as argued by Apple (Apple
Pet. at 50–51)? To the extent that it is,
what evidence in the record shows that
the ‘‘combination of source code and
hardware elements’’ is adapted for use
in an infringement of the ’922 patent
and that it does not have any substantial
noninfringing use?
3. Please comment on the
requirement, if any, that the ‘‘material or
apparatus’’ relevant to a substantial
noninfringing use analysis must be
‘‘separate and distinct’’ from all other
functions of a larger product in view of
Lucent Techs., Inc. v. Gateway, Inc., 580
F.3d 1301 (Fed. Cir. 2009); i4i Ltd.
P’ship v. Microsoft Corp., 598 F.3d 831
(Fed. Cir. 2010); Fujitsu Ltd. v. Netgear
Inc., 620 F.3d 1321 (Fed. Cir. 2010); and
any other pertinent legal authorities. To
the extent there is such a requirement,
what evidence in the record shows that
each ‘‘combination of source code and
hardware elements relied upon by Dr.
Balakrishnan in his witness statement’’
with respect to the ’949 and the ’922
patents is a ‘‘separate and distinct’’
feature of the Browser or Gallery
application that warrants treating it
separately in analyzing contributory
infringement.
4. Please discuss and cite the
evidence of record, if any, that shows a
third party performed each and every
step of asserted claims 29–35 of the ’922
patent.
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5. Please discuss and cite the
evidence of record, if any, that shows
Samsung actively and knowingly aided
and abetted another’s direct
infringement of claims 29–35 of the ’922
patent.
6. Please discuss and cite the
evidence of record, if any, that shows
Samsung actively and knowingly aided
and abetted another’s direct
infringement of claims 11–16 of the ’949
patent.
7. Does the intrinsic evidence
mandate a narrow construction of the
‘‘feature of interest’’ limitation in claims
31 and 32 of the ’922 patent that
excludes control elements in the
translucent image? What impact, if any,
do the additions in the specification
made by reissue have on the
construction of the claims added during
reissue? In particular, please comment
on the applicability of the embodiment
disclosing a translucent keyboard to the
construction of the ‘‘feature of interest’’
limitation. See JX–0004 at 3:12–22 and
FIGS. 19–21c. What evidence in the
record, if any, supports construing
control characters or functional buttons
on a keyboard as a ‘‘feature of interest’’
in the context of the ’922 patent?
8. What evidence in the record
supports or does not support whether a
person of ordinary skill in the art would
understand from the ’697 patent
disclosure that a ‘‘signal path’’ exists
even in the absence of a plug in the
receptacle? To the extent the ‘‘signal
path’’ exists even in the absence of a
plug in the receptacle, what record
evidence shows that the detection
circuitry is ‘‘coupled to the detect
contact and the first receptacle contact’’
as recited in claim 12 of the ’697 patent
when the claimed detection circuitry
detects that ‘‘the signal path is a low or
a high impedance path’’?
9. Please comment on Samsung’s
argument that Apple’s Petition as to the
’697 patent relies on a newly proffered
claim construction argument that
construes the claim limitation ‘‘to detect
that the signal path is a low or a high
impedance path’’ in claim 12 to require
‘‘circuitry that detects that the signal
path is a low impedance path only.’’ See
Samsung Resp. at 83–84.
10. Assuming arguendo that Apple’s
proposed construction of the claimed
detection circuitry limitation is adopted
(see Apple Pet. at 69–76), what record
evidence shows that this limitation is
disclosed or suggested in the prior art of
record, including in the JP published
unexamined application HII–288766
(‘‘Kawano’’) and the YP–T7J portable
media player?
In connection with the final
disposition of this investigation, the
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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.
When 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. In particular, the
Commission is interested in the
following issues, with reference to the
applicable law, the existing evidentiary
record, and if necessary, additional
sworn testimony or expert declarations:
1. How would remedial orders barring
the entry and further distribution of the
Samsung articles alleged to infringe the
asserted claims of the Asserted Patents
affect the public interest as identified in
19 U.S.C. 1337(d)(1) and (f)(1)?
2. In what ways, if any, should a
remedy with respect to infringement of
one or more of the Asserted Patents be
specifically tailored to avoid harm to the
public interest, as identified in 19
U.S.C. 1337(d)(1) and (f)(1)?
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 Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. (Dec. 1994).
When 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
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States under bond, in an amount
determined by the Commission. 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
persons 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 with respect to
the Asserted Patents. Complainant and
the IA are also requested to submit
proposed remedial orders for the
Commission’s consideration.
Complainant is further requested to
state the date that the patents expire and
the HTSUS numbers under which the
accused products are imported. The
written submissions and proposed
remedial orders must be filed no later
than close of business on Tuesday, June
11, 2013. Initial submissions by the
parties are limited to 100 pages, not
including submissions related to
remedy, bonding, and the public
interest. Reply submissions must be
filed no later than the close of business
on Wednesday, June 19, 2013. All reply
submissions are limited to 60 pages, not
including submissions related to
remedy, bonding, and the public
interest. 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–796’’) 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
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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. 337), and in Part
210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
Issued: May 28, 2013.
By order of the Commission.
William R. Bishop,
Supervisory Hearings and Information
Officer.
[FR Doc. 2013–12979 Filed 5–31–13; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[USITC SE–13–011]
Sunshine Act Meetings
United
States International Trade Commission.
AGENCY HOLDING THE MEETING:
TIME AND DATE:
June 7, 2013 at 11:00
a.m.
Room 101, 500 E Street SW.,
Washington, DC 20436, Telephone:
(202) 205–2000.
PLACE:
STATUS:
Open to the public.
MATTERS TO BE CONSIDERED:
1. Agendas for future meetings: none
2. Minutes
3. Ratification List
4. Vote in Inv. Nos. 731–TA–1207–
1209 (Preliminary)(Prestressed Concrete
Steel Rail Tie Wire from China, Mexico,
and Thailand). The Commission is
currently scheduled to transmit its
determinations to the Secretary of
Commerce on or before June 7, 2013;
Commissioners’ opinions are currently
scheduled to be transmitted to the
Secretary of Commerce on or before
June 14, 2013.
5. Outstanding action jackets: none
In accordance with Commission
policy, subject matter listed above, not
disposed of at the scheduled meeting,
may be carried over to the agenda of the
following meeting.
Issued: May 30, 2013.
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]]>Agencies
[Federal Register Volume 78, Number 106 (Monday, June 3, 2013)]
[Notices]
[Pages 33110-33112]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12979]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-796]
Certain Electronic Digital Media Devices and Components Thereof;
Determination To Review a Remand Initial Determination; Schedule for
Filing Written Submissions on Certain Issues Under Review and on
Remedy, Bonding, and the Public Interest
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 remand initial determination
(``RID'') issued by the presiding administrative law judge (``ALJ'') on
March 26, 2013 in its entirety. The Commission requests certain
briefing from the parties on the issues under review, as indicated in
this notice. The Commission also requests briefing from the parties and
the public on the issues of remedy, bonding, and the public interest.
FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-2392. 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 August 5, 2011, based on a complaint filed by Apple Inc. (``Apple'')
of Cupertino, California. 76 FR 47610 (Aug. 5, 2011). The complaint
alleges violations of section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337, in the importation into the United States, the
sale for importation, and the sale within the United States after
importation of certain electronic digital media devices and components
thereof by reason of infringement of certain claims of U.S. Patent Nos.
7,479,949 (``the '949 patent''); RE 41,922 (``the '922 patent'');
7,863,533 (``the '533 patent''); 7,789,697 (``the '697 patent'');
7,912,501 (``the '501 patent''); D558,757 (``the D'757 patent''); and
D618,678 (``the D'678 patent'') (collectively, ``the Asserted
Patents''). The complaint further alleges the existence of a domestic
industry. The respondents named in the Commission's notice of
investigation are Samsung Electronics Co, Ltd. of the Republic of
Korea; Samsung Electronics America, Inc. of Ridgefield Park, New
Jersey; and Samsung Telecommunications America, LLC of Richardson,
Texas (collectively, ``Samsung''). A Commission investigative attorney
(``IA'') participated in the investigation.
[[Page 33111]]
On May 3, 2012, the ALJ issued an ID partially terminating the
investigation with respect to all claims of the '533 patent; claims 1-
3, 11, 12, 15, 16 and 21-27 of the '697 patent; and claim 3 of the '949
patent (Order No. 17) (not reviewed by the Commission, May 3, 2012).
On October 24, 2012, the ALJ issued his final ID in this
investigation finding a violation of section 337 in connection with the
claim of the D'678 patent; claims 1, 4-6 and 10-20 of the '949 patent;
claims 29, 30 and 33-35 of the '922 patent; and claims 1-4 and 8 of the
'501 patent. The ALJ found no violation of section 337 in connection
with the claim of the D'757 patent; claims 31 and 32 of the '922
patent; and claims 13 and 14 of the '697 patent. The ALJ also found
that the asserted claims of the Asserted Patents were not shown to be
invalid. The ALJ further found that a domestic industry in the United
States exists that practices the Asserted Patents, except for the '697
patent. On November 7, 2012, the ALJ issued his recommended
determination on remedy and bonding.
Apple and Samsung filed timely petitions for review of various
portions of the final ID, as well as timely responses to the petitions.
The IA filed only a response to the petitions for review. On December
3, 2012, Apple and Samsung filed public interest comments pursuant to
Commission rule 210.50(a)(4). That same day, non-party Google filed a
submission in response to the Notice of Request for Statements on the
Public Interest. See 77 FR 68829-30 (Nov. 16, 2012).
On January 23, 2013, the Commission determined to review the final
ID in its entirety, and remand the investigation to the ALJ with
respect to certain issues related to the '922 patent and the '501
patent, as set forth in the Remand Order. 78 FR 6130 (Jan. 29, 2013).
In light of the remand, briefing on the reviewed issues and on remedy,
bonding, and the public interest were postponed until the Commission's
consideration of the RID.
On March 26, 2013, the ALJ issued his RID. The RID found that
claims 34 and 35 of the '922 patent are infringed by the text-selection
feature of the accused products and that claim 3 of the '501 patent is
not infringed by the accused products represented by the Transform SPH-
M920. On April 9, 2013, Apple and Samsung petitioned for review of the
RID. The IA did not petition for review of the RID. On April 17, 2013,
Apple, Samsung and the IA filed their respective responses to the
petitions for review.
Having reviewed the evidence of record and the parties'
submissions, the Commission has determined to review the RID in its
entirety.
In connection with its review of the final ID and the RID, the
parties are invited to brief only the discrete issues enumerated below,
with reference to the applicable law and the evidentiary record. The
parties are not to brief other issues on review, which are adequately
presented in the parties' existing filings.
1. Is the ``material or apparatus'' used in practicing the patented
methods asserted in the '949 patent that is relevant to a substantial
noninfringing use analysis the ``combination of source code and
hardware elements relied upon by Dr. Balakrishnan in his witness
statement,'' as argued by Apple (Apple Pet. at 50-51)? To the extent
that it is, what evidence in the record shows that the ``combination of
source code and hardware elements'' is adapted for use in an
infringement of the '949 patent and that it does not have any
substantial noninfringing use?
2. Is the ``material or apparatus'' used in practicing the patented
methods asserted in the '922 patent that is relevant to a substantial
noninfringing use analysis the ``combination of source code and
hardware elements relied upon by Dr. Balakrishnan in his witness
statement,'' as argued by Apple (Apple Pet. at 50-51)? To the extent
that it is, what evidence in the record shows that the ``combination of
source code and hardware elements'' is adapted for use in an
infringement of the '922 patent and that it does not have any
substantial noninfringing use?
3. Please comment on the requirement, if any, that the ``material
or apparatus'' relevant to a substantial noninfringing use analysis
must be ``separate and distinct'' from all other functions of a larger
product in view of Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301
(Fed. Cir. 2009); i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831
(Fed. Cir. 2010); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321 (Fed.
Cir. 2010); and any other pertinent legal authorities. To the extent
there is such a requirement, what evidence in the record shows that
each ``combination of source code and hardware elements relied upon by
Dr. Balakrishnan in his witness statement'' with respect to the '949
and the '922 patents is a ``separate and distinct'' feature of the
Browser or Gallery application that warrants treating it separately in
analyzing contributory infringement.
4. Please discuss and cite the evidence of record, if any, that
shows a third party performed each and every step of asserted claims
29-35 of the '922 patent.
5. Please discuss and cite the evidence of record, if any, that
shows Samsung actively and knowingly aided and abetted another's direct
infringement of claims 29-35 of the '922 patent.
6. Please discuss and cite the evidence of record, if any, that
shows Samsung actively and knowingly aided and abetted another's direct
infringement of claims 11-16 of the '949 patent.
7. Does the intrinsic evidence mandate a narrow construction of the
``feature of interest'' limitation in claims 31 and 32 of the '922
patent that excludes control elements in the translucent image? What
impact, if any, do the additions in the specification made by reissue
have on the construction of the claims added during reissue? In
particular, please comment on the applicability of the embodiment
disclosing a translucent keyboard to the construction of the ``feature
of interest'' limitation. See JX-0004 at 3:12-22 and FIGS. 19-21c. What
evidence in the record, if any, supports construing control characters
or functional buttons on a keyboard as a ``feature of interest'' in the
context of the '922 patent?
8. What evidence in the record supports or does not support whether
a person of ordinary skill in the art would understand from the '697
patent disclosure that a ``signal path'' exists even in the absence of
a plug in the receptacle? To the extent the ``signal path'' exists even
in the absence of a plug in the receptacle, what record evidence shows
that the detection circuitry is ``coupled to the detect contact and the
first receptacle contact'' as recited in claim 12 of the '697 patent
when the claimed detection circuitry detects that ``the signal path is
a low or a high impedance path''?
9. Please comment on Samsung's argument that Apple's Petition as to
the '697 patent relies on a newly proffered claim construction argument
that construes the claim limitation ``to detect that the signal path is
a low or a high impedance path'' in claim 12 to require ``circuitry
that detects that the signal path is a low impedance path only.'' See
Samsung Resp. at 83-84.
10. Assuming arguendo that Apple's proposed construction of the
claimed detection circuitry limitation is adopted (see Apple Pet. at
69-76), what record evidence shows that this limitation is disclosed or
suggested in the prior art of record, including in the JP published
unexamined application HII-288766 (``Kawano'') and the YP-T7J portable
media player?
In connection with the final disposition of this investigation, the
[[Page 33112]]
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. When 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. In particular, the Commission is interested in
the following issues, with reference to the applicable law, the
existing evidentiary record, and if necessary, additional sworn
testimony or expert declarations:
1. How would remedial orders barring the entry and further
distribution of the Samsung articles alleged to infringe the asserted
claims of the Asserted Patents affect the public interest as identified
in 19 U.S.C. 1337(d)(1) and (f)(1)?
2. In what ways, if any, should a remedy with respect to
infringement of one or more of the Asserted Patents be specifically
tailored to avoid harm to the public interest, as identified in 19
U.S.C. 1337(d)(1) and (f)(1)?
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 Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No.
2843, Comm'n Op. (Dec. 1994).
When 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. 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 persons 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 with respect to the Asserted Patents. Complainant
and the IA are also requested to submit proposed remedial orders for
the Commission's consideration. Complainant is further requested to
state the date that the patents expire and the HTSUS numbers under
which the accused products are imported. The written submissions and
proposed remedial orders must be filed no later than close of business
on Tuesday, June 11, 2013. Initial submissions by the parties are
limited to 100 pages, not including submissions related to remedy,
bonding, and the public interest. Reply submissions must be filed no
later than the close of business on Wednesday, June 19, 2013. All reply
submissions are limited to 60 pages, not including submissions related
to remedy, bonding, and the public interest. 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-796'') 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. 337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
Issued: May 28, 2013.
By order of the Commission.
William R. Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2013-12979 Filed 5-31-13; 8:45 am]
BILLING CODE 7020-02-P
