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]
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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
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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 (https://www.usitc.gov).
The public record for this investigation
SUMMARY:
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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 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
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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
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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.
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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, 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-
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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: https://
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 https://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.
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SUMMARY:
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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,
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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
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]]>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]
-----------------------------------------------------------------------
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 (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 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, 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-
[[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
