Certain Automated Media Library Devices; Decision to Modify In Part a Remand Initial Determination; Termination of the Investigation With A Finding of No Violation, 33106-33108 [2013-12980]
Download as PDF
<![CDATA[
sroberts on DSK5SPTVN1PROD with NOTICES
33106
Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
Subject Merchandise imported from
each 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(ies), 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 each Subject Country accounted for
by your firm’s(s’) production;
(b) Capacity (quantity) of your firm(s)
to produce the Subject Merchandise in
each 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 each 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
occurred in the United States or in the
market for the Subject Merchandise in
each Subject Country after 2007, 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
VerDate Mar<15>2010
16:40 May 31, 2013
Jkt 229001
produced in the United States, Subject
Merchandise produced in each 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. 2013–13092 Filed 5–31–13; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–746]
Certain Automated Media Library
Devices; Decision to Modify In Part a
Remand Initial Determination;
Termination of the Investigation With A
Finding of No Violation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to modify
in part the presiding administrative law
judge’s (‘‘ALJ’’) remand initial
determination (‘‘RID’’) issued on March
26, 2013, finding no violation of section
337 of the Tariff Act of 1930, 19 U.S.C.
1337 in the above-captioned
investigation. The Commission has
terminated the investigation.
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
SUMMARY:
PO 00000
Frm 00062
Fmt 4703
Sfmt 4703
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: This
investigation was instituted on
November 24, 2010, based upon a
complaint filed by Overland Storage,
Inc. of San Diego, California
(‘‘Overland’’) on October 19, 2010, and
supplemented on November 9, 2010. 75
FR 71735 (Nov. 24, 2010). The
complaint alleged violations of section
337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337) by reason of
infringement of certain claims of U.S.
Patent No. 6,328,766 (‘‘the ’766 patent’’)
and U.S. Patent No. 6,353,581 (‘‘the ’581
patent’’). The notice of investigation
named as respondents BDT AG of
Rottweil, Germany; BDT Solutions
GmbH & Co. KG of Rottweil, Germany;
BDT Automation Technology (Zhuhai
FTZ), Co., Ltd. of Zhuhai Guandang,
China; BDT de Mexico, S. de R.L. de
C.V., of Jalisco, Mexico; BDT Products,
Inc., of Irvine, California; Dell Inc. of
Round Rock, Texas (‘‘Dell’’); and
International Business Machines Corp.
of Armonk, New York (‘‘IBM’’). The
Office of Unfair Import Investigations
was not named as a party.
On August 15, 2011, the ALJ granted
Overland’s motion for partial
termination of the investigation with
respect to claims 6 and 11 of the ’766
patent and claims 8, 11 and 17–19 of the
’581 patent (Order No. 26) (not reviewed
by the Commission, Aug. 26, 2011). On
September 2, 2011, the ALJ terminated
BDT-Solutions GmbH & Co. KG from the
investigation upon a motion for
summary determination of no violation
(Order No. 31) (not reviewed by the
Commission, Sept. 21, 2011). The ALJ
also terminated IBM and Dell based on
a license agreement (Order No. 35)
(affirmed by the Commission, Jan. 27,
2012). Accordingly, BDT AG, BDT
Automation Technology (Zhuhai FTZ)
´
Co., Ltd., BDT de Mexico, S. de R.L. de
C.V, and BDT Products, Inc.
(collectively, ‘‘the BDT Respondents’’)
remain as respondents in this
investigation.
On June 20, 2012, the ALJ issued his
final ID, finding no violation of section
337 by the BDT Respondents with
respect to any of the asserted patent
claims. On August 20, 2012, the
Commission determined to review the
final ID in part and requested briefing
on several issues it determined to
review, and on remedy, the public
interest and bonding. 77 FR 51573
(August 24, 2012). On September 4,
E:\FR\FM\03JNN1.SGM
03JNN1
sroberts on DSK5SPTVN1PROD with NOTICES
Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
2012, the parties filed written
submissions on the issues under review,
remedy, the public interest, and
bonding. The Commission did not
receive any non-party submissions.
On October 25, 2012, the Commission
affirmed, with modified reasoning, the
ALJ’s finding that the BDT Respondents
did not contributorily infringe the
asserted claims of the ’766 patent. In
addition, the Commission reversed the
ALJ’s finding that the IBM documents
related to the IBM 3570, 7331, 7336, and
3494 tape libraries do not qualify as
‘‘printed publications’’ under 35 U.S.C.
102, but affirmed the ALJ’s finding that
the IBM documents related to the IBM
3575 tape library do not qualify as
‘‘printed publications.’’ With respect to
the ’581 patent, the Commission
construed the limitation ‘‘linear array’’
as recited in claims 1, 2, 5, 6, 7, 9, 10,
12, and 16 to mean ‘‘media element
storage locations [or cells] arranged in
one or more straight lines.’’ The
Commission affirmed, with modified
reasoning, the ALJ’s finding of
noninfringement of the ’581 patent. The
Commission also affirmed, with
modified reasoning, the ALJ’s finding
that the ’581 patent was not shown to
be invalid (except for claim 15). In
addition, the Commission reversed the
ALJ’s finding that Overland had failed
to satisfy the technical prong of the
domestic industry requirement. Finally,
the Commission affirmed, with
modified reasoning, the ALJ’s rejection
of the BDT Respondents’ patent
exhaustion defense with respect to both
asserted patents.
The Commission also determined to
remand the investigation to the ALJ
with respect to certain issues regarding
both asserted patents, and to extend the
target date for completion of the
investigation. 77 FR 65907 (Oct. 31,
2012). Specifically, the Commission
remanded the investigation to the ALJ to
consider whether the IBM documents
that qualify as prior art anticipate or, in
combination with their associated IBM
tape library and/or U.S. Patent No.
6,434,090, render obvious the asserted
claims of the ’766 patent. The
Commission also remanded the
investigation to the ALJ to consider
whether Overland has satisfied the
economic prong of the domestic
industry requirement for the ’581
patent.
On November 8, 2012, Overland filed
a petition for reconsideration of the
Commission’s determination that the
BDT Respondents did not infringe
claims 10, 12, and 16 of the ’581 patent,
which the BDT Respondents opposed.
On December 11, 2012, the Commission
granted Overland’s petition for
VerDate Mar<15>2010
16:40 May 31, 2013
Jkt 229001
reconsideration in view of the
Commission’s determination that the
accused products met its modified
construction of the term ‘‘linear array.’’
A revised Commission Opinion issued
on January 9, 2013 clarifying that the
Commission affirms, with modified
reasoning, the ALJ’s finding of
noninfringement of claims 1–2, 5–7 and
9 of the ’581 patent. In addition to the
issues remanded to the ALJ in the
Commission’s Order dated October 25,
2012, the Commission further remanded
the investigation to the ALJ to make all
findings regarding infringement of
claims 10, 12, and 16 based on the
existing record.
On November 13, 2012, the BDT
Respondents filed a motion for leave to
file out of time a petition for
reconsideration of the Commission’s
determination that the BDT
Respondents waived consideration of
certain testimonies in support of a
finding of invalidity of the ’581 patent.
The Commission found good and
sufficient reason to waive the 14-day
limit of rule 210.47 and granted the BDT
Respondents’ motion for leave to file out
of time a petition for reconsideration.
However, the Commission determined
that the petition did not comply with 19
CFR 210.47 because it was not confined
to ‘‘new questions’’ raised by the
Commission determination and for
which the BDT Respondents had no
opportunity to submit arguments.
On remand, the ALJ extended the
target date for completion of the
investigation to June 25, 2013. The
Commission determined not to review
the ID setting the new target date. Notice
(Jan. 9, 2013). On March 26, 2013, the
ALJ issued his RID in this investigation.
The ALJ found no violation of section
337 by the BDT Respondents in
connection with the asserted patents.
Specifically, the ALJ found that the
accused products do not directly
infringe claims 10, 12 and 16 of the ’581
patent because they do not meet the
limitations: ‘‘a linear array of media
element cells in fixed position with
respect to said housing’’; ‘‘a linear array
of media element cells in fixed relative
position;’’ ‘‘a moveable cell coupled to
said end of said magazine adjacent to
said opening’’; and ‘‘at least one
movable cell coupled to one end of said
linear array.’’ Having found no direct
infringement, the ALJ concluded that
the BDT Respondents also do not
induce or contributorily infringe claims
10, 12 and 16 of the ’581 patent. The
ALJ further found that the economic
prong of the domestic industry
requirement has been satisfied for the
’581 patent under 19 U.S.C.
1337(a)(3)(A), (B), and (C). With respect
PO 00000
Frm 00063
Fmt 4703
Sfmt 4703
33107
to the ’766 patent, the ALJ found that
claims 1–3 and 7–9 are invalid under 35
U.S.C. 102 as anticipated by the 3494
Operator Guide, but that the claims are
not invalid under 35 U.S.C. 103 for
obviousness.
On April 8, 2013, Overland petitioned
for review of certain aspects of the RID.
In particular, Overland requested that
the Commission review and reverse the
RID’s finding of no infringement of
claims 10, 12 and 16 of the ’581 patent
and the RID’s finding that the asserted
claims of the ’766 patent are invalid as
anticipated by the 3494 Operator Guide.
The BDT Respondents did not file a
petition for review, but did file a
response to Overland’s petition for
review on April 15, 2013.
On May 10, 2013, the Commission
determined to review in part the RID.
Specifically, the Commission
determined to review the RID’s finding
that Overland did not show by a
preponderance of the evidence that the
accused products infringe claim 16 of
the ’581 patent. The Commission also
determined to review the RID’s finding
that the asserted claims of the ’766
patent are invalid as anticipated by the
3494 Operator Guide. The Commission
determined not to review the remaining
issues decided in the RID. Pursuant to
the Commission Orders of October 25,
2012 and December 11, 2012, the ALJ’s
determinations on the unreviewed
issues became the Commission’s final
determinations.
On review, the Commission has
determined to affirm, based on the
Commission’s construction of the
limitation ‘‘cells in fixed relative
position,’’ the RID’s finding that
Overland has not shown by a
preponderance of the evidence that the
accused products infringe claim 16 of
the ’581 patent. The Commission has
also determined to affirm the RID’s
finding that the BDT Respondents have
shown by clear and convincing
evidence that the 3494 Operator Guide
anticipates the asserted claims of the
’766 patent. A Commission opinion on
remand will be issued concurrently
with this notice.
The Commission has terminated this
investigation. 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 Part 210 of the
Commission’s Rules of Practice and
Procedure (19 CFR Part 210).
Issued: May 28, 2013.
E:\FR\FM\03JNN1.SGM
03JNN1
33108
Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
By order of the Commission.
William R. Bishop,
Supervisory Hearings and Meetings Officer.
[FR Doc. 2013–12980 Filed 5–31–13; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 701–TA–447 and 731–
TA–1116 (Review)]
Circular Welded Carbon-Quality Steel
Pipe From China; Institution of FiveYear Reviews
United States International
Trade Commission.
ACTION: Notice.
AGENCY:
The Commission hereby gives
notice that it has instituted reviews
pursuant to section 751(c) of the Tariff
Act of 1930 (19 U.S.C. 1675(c)) (the Act)
to determine whether revocation of the
antidumping and countervailing duty
orders on circular welded carbonquality steel pipe from China would be
likely to lead to continuation or
recurrence of material injury. Pursuant
to section 751(c)(2) of the Act, interested
parties are requested to respond to this
notice by submitting the information
specified below to the Commission; 1 to
be assured of consideration, the
deadline for responses is July 3, 2013.
Comments on the adequacy of responses
may be filed with the Commission by
August 16, 2013. For further
information concerning the conduct of
these reviews and rules of general
application, consult the Commission’s
Rules of Practice and Procedure, part
201, subparts A through E (19 CFR part
201), and part 207, subparts A, D, E, and
F (19 CFR part 207).
DATES: Effective Date: June 3, 2013.
FOR FURTHER INFORMATION CONTACT:
Mary Messer (202–205–3193), Office of
Investigations, U.S. International Trade
Commission, 500 E Street SW.,
Washington, DC 20436. Hearingimpaired persons can obtain
information on this matter by contacting
the Commission’s TDD terminal on 202–
205–1810. Persons with mobility
impairments who will need special
assistance in gaining access to the
sroberts on DSK5SPTVN1PROD with NOTICES
SUMMARY:
1 No response to this request for information is
required if a currently valid Office of Management
and Budget (OMB) number is not displayed; the
OMB number is 3117–0016/USITC No. 13–5–286,
expiration date June 30, 2014. Public reporting
burden for the request is estimated to average 15
hours per response. Please send comments
regarding the accuracy of this burden estimate to
the Office of Investigations, U.S. International Trade
Commission, 500 E Street SW., Washington, DC
20436.
VerDate Mar<15>2010
16:40 May 31, 2013
Jkt 229001
Commission should contact the Office
of the Secretary at 202–205–2000.
General information concerning the
Commission may also be obtained by
accessing its internet server (https://
www.usitc.gov). The public record for
these reviews may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION:
Background.—On July 22, 2008, the
Department of Commerce (‘‘Commerce’’)
issued antidumping and countervailing
duty orders on imports of circular
welded carbon-quality steel pipe from
China (73 FR 42545–42549). The
Commission is conducting reviews to
determine whether revocation of the
orders would be likely to lead to
continuation or recurrence of material
injury to the domestic industry within
a reasonably foreseeable time. It will
assess the adequacy of interested party
responses to this notice of institution to
determine whether to conduct full or
expedited reviews. The Commission’s
determinations in any expedited
reviews will be based on the facts
available, which may include
information provided in response to this
notice.
Definitions.—The following
definitions apply to these reviews:
(1) Subject Merchandise is the class or
kind of merchandise that is within the
scope of the five-year reviews, as
defined by the Department of
Commerce.
(2) The Subject Country in these
reviews is China.
(3) The Domestic Like Product is the
domestically produced product or
products which are like, or in the
absence of like, most similar in
characteristics and uses with, the
Subject Merchandise. In its original
determinations, the Commission
defined a single Domestic Like Product
consisting of circular welded carbonquality steel pipe coextensive with the
scope of the investigations.
(4) The Domestic Industry is the U.S.
producers as a whole of the Domestic
Like Product, or those producers whose
collective output of the Domestic Like
Product constitutes a major proportion
of the total domestic production of the
product. In its original determinations,
the Commission defined the single
Domestic Industry consisting of all
known domestic producers of circular
welded carbon-quality steel pipe.
(5) The Order Date is the date that the
antidumping and countervailing duty
orders under review became effective. In
these reviews, the Order Date is July 22,
2008.
(6) An Importer is any person or firm
engaged, either directly or through a
PO 00000
Frm 00064
Fmt 4703
Sfmt 4703
parent company or subsidiary, in
importing the Subject Merchandise into
the United States from a foreign
manufacturer or through its selling
agent.
Participation in the reviews and
public service list.—Persons, including
industrial users of the Subject
Merchandise and, if the merchandise is
sold at the retail level, representative
consumer organizations, wishing to
participate in the reviews as parties
must file an entry of appearance with
the Secretary to the Commission, as
provided in section 201.11(b)(4) of the
Commission’s rules, no later than 21
days after publication of this notice in
the Federal Register. The Secretary will
maintain a public service list containing
the names and addresses of all persons,
or their representatives, who are parties
to the reviews.
Former Commission employees who
are seeking to appear in Commission
five-year reviews are advised that they
may appear in a review even if they
participated personally and
substantially in the corresponding
underlying original investigation. The
Commission’s designated agency ethics
official has advised that a five-year
review is not considered the ‘‘same
particular matter’’ as the corresponding
underlying original investigation for
purposes of 18 U.S.C. 207, the post
employment statute for Federal
employees, and Commission rule
201.15(b) (19 CFR 201.15(b)), 73 FR
24609 (May 5, 2008). This advice was
developed in consultation with the
Office of Government Ethics.
Consequently, former employees are not
required to seek Commission approval
to appear in a review under Commission
rule 19 CFR 201.15, even if the
corresponding underlying original
investigation was pending when they
were Commission employees. For
further ethics advice on this matter,
contact Carol McCue Verratti, Deputy
Agency Ethics Official, at 202–205–
3088.
Limited disclosure of business
proprietary information (BPI) under an
administrative protective order (APO)
and APO service list.—Pursuant to
section 207.7(a) of the Commission’s
rules, the Secretary will make BPI
submitted in these reviews available to
authorized applicants under the APO
issued in the reviews, provided that the
application is made no later than 21
days after publication of this notice in
the Federal Register. Authorized
applicants must represent interested
parties, as defined in 19 U.S.C. 1677(9),
who are parties to the reviews. A
separate service list will be maintained
by the Secretary for those parties
E:\FR\FM\03JNN1.SGM
03JNN1
]]>Agencies
[Federal Register Volume 78, Number 106 (Monday, June 3, 2013)]
[Notices]
[Pages 33106-33108]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12980]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-746]
Certain Automated Media Library Devices; Decision to Modify In
Part a Remand Initial Determination; Termination of the Investigation
With A Finding of No Violation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to modify in part the presiding
administrative law judge's (``ALJ'') remand initial determination
(``RID'') issued on March 26, 2013, finding no violation of section 337
of the Tariff Act of 1930, 19 U.S.C. 1337 in the above-captioned
investigation. The Commission has terminated the investigation.
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: This investigation was instituted on
November 24, 2010, based upon a complaint filed by Overland Storage,
Inc. of San Diego, California (``Overland'') on October 19, 2010, and
supplemented on November 9, 2010. 75 FR 71735 (Nov. 24, 2010). The
complaint alleged violations of section 337 of the Tariff Act of 1930,
as amended (19 U.S.C. 1337) by reason of infringement of certain claims
of U.S. Patent No. 6,328,766 (``the '766 patent'') and U.S. Patent No.
6,353,581 (``the '581 patent''). The notice of investigation named as
respondents BDT AG of Rottweil, Germany; BDT Solutions GmbH & Co. KG of
Rottweil, Germany; BDT Automation Technology (Zhuhai FTZ), Co., Ltd. of
Zhuhai Guandang, China; BDT de Mexico, S. de R.L. de C.V., of Jalisco,
Mexico; BDT Products, Inc., of Irvine, California; Dell Inc. of Round
Rock, Texas (``Dell''); and International Business Machines Corp. of
Armonk, New York (``IBM''). The Office of Unfair Import Investigations
was not named as a party.
On August 15, 2011, the ALJ granted Overland's motion for partial
termination of the investigation with respect to claims 6 and 11 of the
'766 patent and claims 8, 11 and 17-19 of the '581 patent (Order No.
26) (not reviewed by the Commission, Aug. 26, 2011). On September 2,
2011, the ALJ terminated BDT-Solutions GmbH & Co. KG from the
investigation upon a motion for summary determination of no violation
(Order No. 31) (not reviewed by the Commission, Sept. 21, 2011). The
ALJ also terminated IBM and Dell based on a license agreement (Order
No. 35) (affirmed by the Commission, Jan. 27, 2012). Accordingly, BDT
AG, BDT Automation Technology (Zhuhai FTZ) Co., Ltd., BDT de
M[eacute]xico, S. de R.L. de C.V, and BDT Products, Inc. (collectively,
``the BDT Respondents'') remain as respondents in this investigation.
On June 20, 2012, the ALJ issued his final ID, finding no violation
of section 337 by the BDT Respondents with respect to any of the
asserted patent claims. On August 20, 2012, the Commission determined
to review the final ID in part and requested briefing on several issues
it determined to review, and on remedy, the public interest and
bonding. 77 FR 51573 (August 24, 2012). On September 4,
[[Page 33107]]
2012, the parties filed written submissions on the issues under review,
remedy, the public interest, and bonding. The Commission did not
receive any non-party submissions.
On October 25, 2012, the Commission affirmed, with modified
reasoning, the ALJ's finding that the BDT Respondents did not
contributorily infringe the asserted claims of the '766 patent. In
addition, the Commission reversed the ALJ's finding that the IBM
documents related to the IBM 3570, 7331, 7336, and 3494 tape libraries
do not qualify as ``printed publications'' under 35 U.S.C. 102, but
affirmed the ALJ's finding that the IBM documents related to the IBM
3575 tape library do not qualify as ``printed publications.'' With
respect to the '581 patent, the Commission construed the limitation
``linear array'' as recited in claims 1, 2, 5, 6, 7, 9, 10, 12, and 16
to mean ``media element storage locations [or cells] arranged in one or
more straight lines.'' The Commission affirmed, with modified
reasoning, the ALJ's finding of noninfringement of the '581 patent. The
Commission also affirmed, with modified reasoning, the ALJ's finding
that the '581 patent was not shown to be invalid (except for claim 15).
In addition, the Commission reversed the ALJ's finding that Overland
had failed to satisfy the technical prong of the domestic industry
requirement. Finally, the Commission affirmed, with modified reasoning,
the ALJ's rejection of the BDT Respondents' patent exhaustion defense
with respect to both asserted patents.
The Commission also determined to remand the investigation to the
ALJ with respect to certain issues regarding both asserted patents, and
to extend the target date for completion of the investigation. 77 FR
65907 (Oct. 31, 2012). Specifically, the Commission remanded the
investigation to the ALJ to consider whether the IBM documents that
qualify as prior art anticipate or, in combination with their
associated IBM tape library and/or U.S. Patent No. 6,434,090, render
obvious the asserted claims of the '766 patent. The Commission also
remanded the investigation to the ALJ to consider whether Overland has
satisfied the economic prong of the domestic industry requirement for
the '581 patent.
On November 8, 2012, Overland filed a petition for reconsideration
of the Commission's determination that the BDT Respondents did not
infringe claims 10, 12, and 16 of the '581 patent, which the BDT
Respondents opposed. On December 11, 2012, the Commission granted
Overland's petition for reconsideration in view of the Commission's
determination that the accused products met its modified construction
of the term ``linear array.'' A revised Commission Opinion issued on
January 9, 2013 clarifying that the Commission affirms, with modified
reasoning, the ALJ's finding of noninfringement of claims 1-2, 5-7 and
9 of the '581 patent. In addition to the issues remanded to the ALJ in
the Commission's Order dated October 25, 2012, the Commission further
remanded the investigation to the ALJ to make all findings regarding
infringement of claims 10, 12, and 16 based on the existing record.
On November 13, 2012, the BDT Respondents filed a motion for leave
to file out of time a petition for reconsideration of the Commission's
determination that the BDT Respondents waived consideration of certain
testimonies in support of a finding of invalidity of the '581 patent.
The Commission found good and sufficient reason to waive the 14-day
limit of rule 210.47 and granted the BDT Respondents' motion for leave
to file out of time a petition for reconsideration. However, the
Commission determined that the petition did not comply with 19 CFR
210.47 because it was not confined to ``new questions'' raised by the
Commission determination and for which the BDT Respondents had no
opportunity to submit arguments.
On remand, the ALJ extended the target date for completion of the
investigation to June 25, 2013. The Commission determined not to review
the ID setting the new target date. Notice (Jan. 9, 2013). On March 26,
2013, the ALJ issued his RID in this investigation. The ALJ found no
violation of section 337 by the BDT Respondents in connection with the
asserted patents. Specifically, the ALJ found that the accused products
do not directly infringe claims 10, 12 and 16 of the '581 patent
because they do not meet the limitations: ``a linear array of media
element cells in fixed position with respect to said housing''; ``a
linear array of media element cells in fixed relative position;'' ``a
moveable cell coupled to said end of said magazine adjacent to said
opening''; and ``at least one movable cell coupled to one end of said
linear array.'' Having found no direct infringement, the ALJ concluded
that the BDT Respondents also do not induce or contributorily infringe
claims 10, 12 and 16 of the '581 patent. The ALJ further found that the
economic prong of the domestic industry requirement has been satisfied
for the '581 patent under 19 U.S.C. 1337(a)(3)(A), (B), and (C). With
respect to the '766 patent, the ALJ found that claims 1-3 and 7-9 are
invalid under 35 U.S.C. 102 as anticipated by the 3494 Operator Guide,
but that the claims are not invalid under 35 U.S.C. 103 for
obviousness.
On April 8, 2013, Overland petitioned for review of certain aspects
of the RID. In particular, Overland requested that the Commission
review and reverse the RID's finding of no infringement of claims 10,
12 and 16 of the '581 patent and the RID's finding that the asserted
claims of the '766 patent are invalid as anticipated by the 3494
Operator Guide. The BDT Respondents did not file a petition for review,
but did file a response to Overland's petition for review on April 15,
2013.
On May 10, 2013, the Commission determined to review in part the
RID. Specifically, the Commission determined to review the RID's
finding that Overland did not show by a preponderance of the evidence
that the accused products infringe claim 16 of the '581 patent. The
Commission also determined to review the RID's finding that the
asserted claims of the '766 patent are invalid as anticipated by the
3494 Operator Guide. The Commission determined not to review the
remaining issues decided in the RID. Pursuant to the Commission Orders
of October 25, 2012 and December 11, 2012, the ALJ's determinations on
the unreviewed issues became the Commission's final determinations.
On review, the Commission has determined to affirm, based on the
Commission's construction of the limitation ``cells in fixed relative
position,'' the RID's finding that Overland has not shown by a
preponderance of the evidence that the accused products infringe claim
16 of the '581 patent. The Commission has also determined to affirm the
RID's finding that the BDT Respondents have shown by clear and
convincing evidence that the 3494 Operator Guide anticipates the
asserted claims of the '766 patent. A Commission opinion on remand will
be issued concurrently with this notice.
The Commission has terminated this investigation. 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 Part 210 of the
Commission's Rules of Practice and Procedure (19 CFR Part 210).
Issued: May 28, 2013.
[[Page 33108]]
By order of the Commission.
William R. Bishop,
Supervisory Hearings and Meetings Officer.
[FR Doc. 2013-12980 Filed 5-31-13; 8:45 am]
BILLING CODE 7020-02-P
