Certain Products Containing Interactive Program Guide and Parental Control Technology; Commission Determination To Review in Its Entirety a Final Initial Determination Finding No Violation of Section 337, 49766-49768 [2013-19790]

Download as PDF emcdonald on DSK67QTVN1PROD with NOTICES 49766 Federal Register / Vol. 78, No. 158 / Thursday, August 15, 2013 / Notices valid but not infringed, and Apple’s iPhone 3G and 3GS do not practice the D’757 patent. With some modifications to the ALJ’s analysis for the ’922 patent, the Commission has determined to affirm the ALJ’s constructions of disputed claim terms, and the ALJ’s conclusion that Apple failed to prove that Samsung contributorily infringes the asserted claims of the ’922 patent. The Commission, however, has determined to reverse the ALJ’s conclusion that Apple has proven that Samsung induced infringement of the asserted claims of the ’922 patent. With respect to the ’697 patent, the Commission has determined to modify the ALJ’s construction and application of certain disputed terms in the asserted claims. Under the modified constructions, the Commission has determined that Apple has proven that the accused Samsung devices infringe the asserted claims of the ’697 patent and that Apple’s domestic industry products practice the ’697 patent. The Commission, however, ultimately finds that Apple has not proven a violation of section 337 with respect to the ’697 patent because Samsung has proven with clear and convincing evidence that the asserted claims are invalid as anticipated by the YP–T7J media player. The Commission has further determined that Apple has proven a domestic industry exists in the United States relating to articles protected by the D’678, the ’922 and the ’697 patents, but not the D’757 patent. The Commission has determined that the appropriate remedy is a limited exclusion order prohibiting Samsung from importing certain electronic digital media devices that infringe one or more of claims 1, 4–6, 10, and 17–20 of the ’949 patent and claims 1–4 and 8 of the ’501 patent. The Commission has also determined to issue cease and desist orders prohibiting SEA and STA from further importing, selling, and distributing articles that infringe one or more of claims 1, 4–6, 10, and 17–20 of the ’949 patent and claims 1–4 and 8 of the ’501 patent in the United States. The orders do not apply to the adjudicated design around products found not to infringe the asserted claims of the ’949 and the ’501 patents as identified in the final ID. The Commission has carefully considered the submissions of the parties and the public and has determined that the public interest factors enumerated in section 337(d)(1) and (f)(1) do not preclude issuance of the limited exclusion order and cease and desist orders. Finally, the Commission has determined that excluded mobile phones, media players, and tablet VerDate Mar<15>2010 17:43 Aug 14, 2013 Jkt 229001 computers may be imported and sold in the United States during the period of Presidential review (19 U.S.C. 1337(j)) with the posting of a bond in the amount of 1.25 percent of the entered value. The Commission’s order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance. 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: August 9, 2013. By order of the Commission. Lisa R. Barton, Acting Secretary to the Commission. [FR Doc. 2013–19789 Filed 8–14–13; 8:45 am] BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–845] Certain Products Containing Interactive Program Guide and Parental Control Technology; Commission Determination To Review in Its Entirety a Final Initial Determination Finding No Violation of Section 337 U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission has determined to review in its entirety a final initial determination (‘‘ID’’) issued by the presiding administrative law judge (‘‘ALJ’’), finding no violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in this investigation. FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–5468. 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 (http://www.usitc.gov). The public record for this investigation SUMMARY: PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 may be viewed on the Commission’s electronic docket (EDIS) at http:// 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 June 6, 2012, based on a complaint filed by Rovi Corporation; Rovi Guides, Inc.; Rovi Technologies Corporation; Starsight Telecast, Inc.; United Video Properties, Inc.; and Index Systems, Inc. (collectively, ‘‘Complainants’’). 77 FR 33487–88. The respondents are LG Electronics, Inc.; LG Electronics U.S.A., Inc. (collectively, ‘‘LGE’’); Mitsubishi Electric Corp.; Mitsubishi Electric US Holdings, Inc.; Mitsubishi Electric and Electronics USA, Inc.; Mitsubishi Electric Visual Solutions America, Inc.; Mitsubishi Digital Electronics America, Inc. (collectively, ‘‘Mitsubishi’’); Netflix Inc. (‘‘Netflix’’); Roku, Inc. (‘‘Roku’’); and Vizio, Inc (‘‘Vizio’’). The Office of Unfair Import Investigations is not participating in this investigation. Originally, Complainants asserted numerous claims from seven patents against various respondents. Complainants later moved to terminate the investigation as to three of the seven patents, as to certain claims of one of the remaining four patents, and as to respondents LGE, Mitsubishi, and Vizio. Order No. 9 (Sept. 4, 2012), not reviewed, Oct. 2, 2012; Order No 16 (Nov. 6, 2012), not reviewed, December 7, 2012; Order Nos. 17 (Dec. 19, 2012) and 19 (Dec. 20, 2012), not reviewed, January 18, 2013; Order No. 21 (Jan. 22, 2013), not reviewed Feb. 13, 2013; Order Nos. 34 (Feb. 27, 2013) and 36 (Mar. 1, 2013), not reviewed (Mar. 22, 2013). What remains in the investigation are respondents Netflix and Roku, as well as claims 1, 6, 13, and 17 of U.S. Patent No. 6,898,762 (‘‘the ’762 patent’’), claims 13–20 of U.S. Patent No. 7,065,709 (‘‘the ’709 patent’’); claims 1– 3, 10, and 11 of U.S. Patent No. 7,103,906 (‘‘the ’906 patent’’); and claims 1, 2, 4, 6, 14, 15, 17, and 19 of U.S. Patent No. 8,112,776 (‘‘the ’776 patent’’). On June 7, 2013, the presiding ALJ issued his final ID, finding no violation of section 337. Specifically, the ALJ found that none of the accused products met the importation requirement of section 337. While the ALJ found that his importation finding was dispositive, the ALJ made additional findings in the event that the Commission determined that the importation requirement was met. The ALJ found that no party infringed any of the four asserted E:\FR\FM\15AUN1.SGM 15AUN1 emcdonald on DSK67QTVN1PROD with NOTICES Federal Register / Vol. 78, No. 158 / Thursday, August 15, 2013 / Notices patents. He also found that the ‘776 patent is invalid as anticipated and obvious, but that the respondents had failed to show that the other three asserted patents were invalid. The ALJ found a domestic industry for articles protected by each of the patents-in-suit, but found that Complainants had not shown a domestic industry based on substantial investment in licensing the asserted patents. The ALJ also rejected Respondents’ patent misuse, implied license, and patent exhaustion defenses. On June 24, 2013, Complainants filed a petition for review challenging the ALJ’s findings that the importation requirement is not met, that Netflix does not induce infringement, and that the economic prong of the domestic industry is not met by Complainants’ licensing activity. That same day, the respondents Netflix and Roku filed a joint contingent petition for review arguing additional bases for finding no violation. On July 2, 2013, the parties filed oppositions to each other’s petitions. Having examined the record of this investigation, including the ALJ’s final ID, the petitions for review, and the responses thereto, the Commission has determined to review the final ID in its entirety. The parties are requested to brief their positions on the issues under review with reference to the applicable law and the evidentiary record. In connection with its review, the Commission is particularly interested in briefing on the following issues: 1. Whether direct infringement being carried out by non-imported Netflix servers and Netflix user interfaces affects whether the Netflix SDK induces infringement at the time of importation. Additionally, explain how the Commission Opinion in Certain Electronic Devices with Image Processing Systems, Components Thereof, and Associated Software, Inv. No. 337–TA–724, applies to the accused Netflix SDK for each of the asserted patents. 2. Whether Complainants’ licensing of the Netflix Ready Devices pursuant to the LGE and Vizio licenses affects whether the accused Netflix software infringes. 3. Whether Netflix’s provision of its SDK pursuant to its agreements with LGE and Vizio constitutes a ‘‘sale’’ within the meaning of section 337(a)(1)(B). 4. Identify the specific software that allegedly induces infringement of each of the asserted patents, and explain where such software is present in both the Netflix software allegedly ‘‘sold for importation’’ and in the Netflix Ready VerDate Mar<15>2010 17:43 Aug 14, 2013 Jkt 229001 Devices imported into the United States. Or explain why no such software exists. 5. Explain specifically how the Netflix SDK itself induces infringement of each of the asserted patents. Or explain why the Netflix SDK itself does not induce infringement of each of the asserted patents. 6. Whether Netflix may induce infringement where the direct infringement is carried out by Netflix servers and Netflix user interfaces. 7. For each claim that Netflix is accused of inducing infringement, explain who or what carries out the direct infringement for each claim limitation. 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. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see Certain Devices for Connecting Computers via Telephone Lines, Inv. No. 337–TA–360, USITC Pub. No. 2843 (December 1994) (Commission Opinion). If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or 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. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation. PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 49767 If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission’s action. See Presidential Memorandum of July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the subject articles would be entitled to enter the United States under bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed if a remedy is ordered. 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 parties are encouraged to file written submissions on the issues of remedy, the public interest, and bonding. Such submissions should address the recommended determination by the ALJ on remedy and bonding. The written submissions must not exceed 75 pages, and must be filed no later than close of business on August 23, 2013. Reply submissions must not exceed 50 pages, and must be filed no later than the close of business on August 30, 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–845’’) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures, http://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- E:\FR\FM\15AUN1.SGM 15AUN1 49768 Federal Register / Vol. 78, No. 158 / Thursday, August 15, 2013 / Notices Hearings of the Judicial Conference Advisory Committees on Rules of Bankruptcy and Civil Procedure Written comments can be submitted electronically, following the instructions provided at: http:// www.uscourts.gov/RulesAndPolicies/ rules/proposed-amendments.aspx. Written comments can also be submitted by mail to Secretary, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Thurgood Marshall Federal Judiciary Building, Washington, DC 20544. In accordance with established procedures, all comments submitted are available for public inspection. The text of the proposed rules amendments and the accompanying Committee Notes can be found at the United States Federal Courts’ Web site at http://www.uscourts.gov/ rulesandpolicies/rules.aspx/. FOR FURTHER INFORMATION CONTACT: Jonathan C. Rose, Secretary, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Thurgood Marshall Federal Judiciary Building, Washington, DC 20544, Telephone (202) 502–1820. Advisory Committees on Rules of Bankruptcy and Civil Procedure, Judicial Conference of the United States. ACTION: Notice of proposed amendments and open hearings. Dated: August 9, 2013. Jonathan C. Rose, Secretary, Committee on Rules of Practice and Procedure, Judicial Conference of the United States. confidential 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 of the Commission’s Rules of Practice and Procedure (19 CFR 210.42–46). Issued: August 9, 2013. By order of the Commission. Lisa R. Barton, Acting Secretary to the Commission. [FR Doc. 2013–19790 Filed 8–14–13; 8:45 am] BILLING CODE 7020–02–P JUDICIAL CONFERENCE OF THE UNITED STATES AGENCY: [FR Doc. 2013–19721 Filed 8–14–13; 8:45 am] The Advisory Committees on Rules of Bankruptcy and Civil Procedure have proposed amendments to the following rules and forms: Bankruptcy Rules 2002, 3002, 3007, 3012, 3015, 4003, 5005, 5009, 7001, 9006, and 9009, and Official Forms 17A, 17B, 17C, 22A–1, 22A–1Supp., 22A–2, 22B, 22C–1, 22C–2, 101, 101A, 101B, 104, 105, 106Sum., 106A/B, 106C, 106D, 106E/F, 106G, 106H, 106Dec., 107, 112, 113, 119, 121, 318, 423, and 427 Civil Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms Public hearings are scheduled to be held on the amendments to: • Bankruptcy Rules in Chicago, Illinois, on January 17, 2014, and in Washington, DC, on January 31, 2014; • Civil Rules in Washington, DC, on November 7, 2013, in Phoenix, Arizona, on January 9, 2014, and in Dallas, Texas, on February 7, 2014. Those wishing to testify should contact the Secretary at the address below in writing at least 30 days before the hearing. All written comments and suggestions with respect to the proposed amendments may be submitted on or after the opening of the period for public comment on August 15, 2013, but no later than February 15, 2014. emcdonald on DSK67QTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 17:43 Aug 14, 2013 Jkt 229001 BILLING CODE 2210–55–P DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—Joint Task-Force Networked Media Notice is hereby given that, on July 10, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Joint Task-Force Networked Media (‘‘JT–NM’’) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing (1) the identities of the parties to the venture and (2) the nature and objectives of the venture. The notifications were filed for the purpose of invoking the Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: ABC American Broadcasting Corporation, New York, NY; Advanced Advertising Forum, Watauga, TX; ALC NetworX, Munich, PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 GERMANY; Altera Corp., San Jose, CA; Arista Networks, Santa Clara, CA; AT&T, Dallas, TX; Athlone Institute of Technology, Westmeath, IRELAND; Audinate, Inc., Portland, OR; AVA Networks, Boulder, CO; Avid Technology, Londonderry, NH; Ray Baldock (Individual), Nevada City, CA; David Bancroft (Individual), Reading, UNITED KINGDOM; Barco, Duluth, GA; Bosch Communications, Burnsville, MN; British Broadcast Corporation, London, Surrey, UNITED KINGDOM; BskyB Ltd, Isleworth, UNITED KINGDOM; CBC Radio Canada, Montreal, Quebec, CANADA; CBS, New York, NY; CDG—CineDesignGroup, Rome, ITALY; Ciena, Kanata, Ontario, CANADA; Cinegy, Munich, GERMANY; Cisco, San Jose, CA; Cobalt Digital Inc., Urbana, IL; Coral Sea Studios P/L, Clifton Beach, Queensland, AUSTRALIA; Crystal Solutions, Buford, GA; Peter Dare (Individual), Queensland, AUSTRALIA; CS Meyer, Inc., Grass Valley, CA; Devoncroft Partners, Coronado, CA; Dimension Data, Oberursel, GERMANY; Dimetis GmbH, Dietzenbach, GERMANY; DIRECTV, El Segundo, CA; Discovery Communications, LLC, Oak Hill, VA; Distrito Telefonica, Madrid, SPAIN; Diversified Systems Inc., Kenilworth, NJ; Dolby, Porter Ranch, CA; James Donahue (Individual), Plainville, MA; DVBLink, Inc., Mount Vernon, IA; Bob Edge TV Consulting, Tualatin, OR; Elemental Technologies, Portland, OR; Encompass Digital Media, Los Angeles, CA; Ericsson Television Ltd, Southampton, UNITED KINGDOM; ESPN, Bristol, CT; Evertz, Burlington, Ontario, CANADA; European Broadcasting Union, Le GrandSaconnex, Geneva, SWITZERLAND; EVS Broadcast Equipment SA, Seraing, BELGIUM; FOX, Los Angeles, CA; Fraunhofer IDMT, Ilmaneu, GERMANY; Fraunhofer FOKUS Research Institute, Berlin, GERMANY; Front Porch Digital, Mt Laurel, NJ; Fujitsu Frontech North America, Toms River, NJ; GIC, Calabasas, CA; GigaContent A/S, Skanderborg, DENMARK; GoPro, San Mateo, CA; Grass Valley, San Francisco, CA; Harmonic Inc., Portland, OR; Harris Broadcast Corporation, Toronto, Quebec, CANADA; HD Consulting, Sewickley, PA; Home Box Office, Norwalk, CT; HRT, Zagreb, CROATIA; IABM, Gloucestershire, UNITED KINGDOM; IneoQuest Technologies, Inc., Mansfield, MA; Internet2, Ann Arbor, MI; intoPIX, Louvain-La-Neuve, BELGIUM; Iowa Public Television, Johnston, IA; IRIB, Tehran, IRAN; IRT GmbH, Munich, GERMANY; ISAN IA, Geneva, SWITZERLAND; Johnson E:\FR\FM\15AUN1.SGM 15AUN1

Agencies

[Federal Register Volume 78, Number 158 (Thursday, August 15, 2013)]
[Notices]
[Pages 49766-49768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19790]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-845]


Certain Products Containing Interactive Program Guide and 
Parental Control Technology; Commission Determination To Review in Its 
Entirety a Final Initial Determination Finding No Violation of Section 
337

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 its entirety a final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ''), finding no violation of section 337 of the Tariff Act of 
1930, 19 U.S.C. 1337, in this investigation.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-5468. 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 (http://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at http://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 June 6, 2012, based on a complaint filed by Rovi Corporation; Rovi 
Guides, Inc.; Rovi Technologies Corporation; Starsight Telecast, Inc.; 
United Video Properties, Inc.; and Index Systems, Inc. (collectively, 
``Complainants''). 77 FR 33487-88. The respondents are LG Electronics, 
Inc.; LG Electronics U.S.A., Inc. (collectively, ``LGE''); Mitsubishi 
Electric Corp.; Mitsubishi Electric US Holdings, Inc.; Mitsubishi 
Electric and Electronics USA, Inc.; Mitsubishi Electric Visual 
Solutions America, Inc.; Mitsubishi Digital Electronics America, Inc. 
(collectively, ``Mitsubishi''); Netflix Inc. (``Netflix''); Roku, Inc. 
(``Roku''); and Vizio, Inc (``Vizio''). The Office of Unfair Import 
Investigations is not participating in this investigation.
    Originally, Complainants asserted numerous claims from seven 
patents against various respondents. Complainants later moved to 
terminate the investigation as to three of the seven patents, as to 
certain claims of one of the remaining four patents, and as to 
respondents LGE, Mitsubishi, and Vizio. Order No. 9 (Sept. 4, 2012), 
not reviewed, Oct. 2, 2012; Order No 16 (Nov. 6, 2012), not reviewed, 
December 7, 2012; Order Nos. 17 (Dec. 19, 2012) and 19 (Dec. 20, 2012), 
not reviewed, January 18, 2013; Order No. 21 (Jan. 22, 2013), not 
reviewed Feb. 13, 2013; Order Nos. 34 (Feb. 27, 2013) and 36 (Mar. 1, 
2013), not reviewed (Mar. 22, 2013). What remains in the investigation 
are respondents Netflix and Roku, as well as claims 1, 6, 13, and 17 of 
U.S. Patent No. 6,898,762 (``the '762 patent''), claims 13-20 of U.S. 
Patent No. 7,065,709 (``the '709 patent''); claims 1-3, 10, and 11 of 
U.S. Patent No. 7,103,906 (``the '906 patent''); and claims 1, 2, 4, 6, 
14, 15, 17, and 19 of U.S. Patent No. 8,112,776 (``the '776 patent'').
    On June 7, 2013, the presiding ALJ issued his final ID, finding no 
violation of section 337. Specifically, the ALJ found that none of the 
accused products met the importation requirement of section 337. While 
the ALJ found that his importation finding was dispositive, the ALJ 
made additional findings in the event that the Commission determined 
that the importation requirement was met. The ALJ found that no party 
infringed any of the four asserted

[[Page 49767]]

patents. He also found that the `776 patent is invalid as anticipated 
and obvious, but that the respondents had failed to show that the other 
three asserted patents were invalid. The ALJ found a domestic industry 
for articles protected by each of the patents-in-suit, but found that 
Complainants had not shown a domestic industry based on substantial 
investment in licensing the asserted patents. The ALJ also rejected 
Respondents' patent misuse, implied license, and patent exhaustion 
defenses.
    On June 24, 2013, Complainants filed a petition for review 
challenging the ALJ's findings that the importation requirement is not 
met, that Netflix does not induce infringement, and that the economic 
prong of the domestic industry is not met by Complainants' licensing 
activity. That same day, the respondents Netflix and Roku filed a joint 
contingent petition for review arguing additional bases for finding no 
violation. On July 2, 2013, the parties filed oppositions to each 
other's petitions.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the final ID in its entirety.
    The parties are requested to brief their positions on the issues 
under review with reference to the applicable law and the evidentiary 
record. In connection with its review, the Commission is particularly 
interested in briefing on the following issues:
    1. Whether direct infringement being carried out by non-imported 
Netflix servers and Netflix user interfaces affects whether the Netflix 
SDK induces infringement at the time of importation. Additionally, 
explain how the Commission Opinion in Certain Electronic Devices with 
Image Processing Systems, Components Thereof, and Associated Software, 
Inv. No. 337-TA-724, applies to the accused Netflix SDK for each of the 
asserted patents.
    2. Whether Complainants' licensing of the Netflix Ready Devices 
pursuant to the LGE and Vizio licenses affects whether the accused 
Netflix software infringes.
    3. Whether Netflix's provision of its SDK pursuant to its 
agreements with LGE and Vizio constitutes a ``sale'' within the meaning 
of section 337(a)(1)(B).
    4. Identify the specific software that allegedly induces 
infringement of each of the asserted patents, and explain where such 
software is present in both the Netflix software allegedly ``sold for 
importation'' and in the Netflix Ready Devices imported into the United 
States. Or explain why no such software exists.
    5. Explain specifically how the Netflix SDK itself induces 
infringement of each of the asserted patents. Or explain why the 
Netflix SDK itself does not induce infringement of each of the asserted 
patents.
    6. Whether Netflix may induce infringement where the direct 
infringement is carried out by Netflix servers and Netflix user 
interfaces.
    7. For each claim that Netflix is accused of inducing infringement, 
explain who or what carries out the direct infringement for each claim 
limitation.
    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. Accordingly, the Commission is 
interested in receiving written submissions that address the form of 
remedy, if any, that should be ordered. If a party seeks exclusion of 
an article from entry into the United States for purposes other than 
entry for consumption, the party should so indicate and provide 
information establishing that activities involving other types of entry 
either are adversely affecting it or likely to do so. For background, 
see Certain Devices for Connecting Computers via Telephone Lines, Inv. 
No. 337-TA-360, USITC Pub. No. 2843 (December 1994) (Commission 
Opinion).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or 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. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the 
subject articles would be entitled to enter the United States under 
bond, in an amount determined by the Commission and prescribed by the 
Secretary of the Treasury. The Commission is therefore interested in 
receiving submissions concerning the amount of the bond that should be 
imposed if a remedy is ordered.
    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 parties are encouraged to file written submissions on 
the issues of remedy, the public interest, and bonding. Such 
submissions should address the recommended determination by the ALJ on 
remedy and bonding. The written submissions must not exceed 75 pages, 
and must be filed no later than close of business on August 23, 2013. 
Reply submissions must not exceed 50 pages, and must be filed no later 
than the close of business on August 30, 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-845'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://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-

[[Page 49768]]

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 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).

    Issued: August 9, 2013.

    By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-19790 Filed 8-14-13; 8:45 am]
BILLING CODE 7020-02-P