Commission Determination To Review in Part a Final Initial Determination and Set a Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 9764-9766 [2014-03550]
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9764
Federal Register / Vol. 79, No. 34 / Thursday, February 20, 2014 / Notices
January 21, 2014.
T. 3 S., R. 32 E., dependent resurvey,
subdivision and metes-and-bounds
survey accepted February 5, 2014.
T. 32 S., R. 24 E., dependent resurvey and
subdivision of sections accepted
February 5, 2014.
T. 32 S., R. 25 E., dependent resurvey and
subdivision of section 18 accepted
February 5, 2014.
T. 2 N., R. 14 E., supplemental plat of the S
1⁄2 of section 24 accepted February 6,
2014.
San Bernardino Meridian, California
T. 1 N., R. 20 W., metes-and-bounds survey
accepted January 28, 2014.
T. 9 S., R. 12 E., supplemental plat of section
1 accepted February 5, 2014.
Authority: 43 U.S.C., Chapter 3.
Dated: February 6, 2014.
Lance J. Bishop,
Chief Cadastral Surveyor, California.
[FR Doc. 2014–03599 Filed 2–19–14; 8:45 am]
BILLING CODE 4310–40–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–860]
Commission Determination To Review
in Part a Final Initial Determination and
Set a Schedule for Filing Written
Submissions on the Issues Under
Review and on Remedy, the Public
Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘the Commission’’) has
determined to review in part the final
initial determination (‘‘ID’’) issued by
the presiding administrative law judge
(‘‘ALJ’’) on December 13, 2013.
FOR FURTHER INFORMATION CONTACT:
Michael Liberman, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
205–3115. 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://
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SUMMARY:
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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 October
30, 2012, based upon a complaint filed
by Avago Technologies Fiber IP
(Singapore) Pte. Ltd. of Singapore;
Avago Technologies General IP
(Singapore) Pte. Ltd. of Singapore; and
Avago Technologies U.S. Inc. of San
Jose, California (collectively,
‘‘Complainants’’), alleging a violation of
section 337 of the Tariff Act of 1930, as
amended, (19 U.S.C. 1337) in the
importation, sale for importation, or sale
within the United States after
importation of certain optoelectronic
devices for fiber optic communications,
components thereof, and products
containing the same by reason of
infringement of certain claims of U.S.
Patent Nos. 6,947,456 (‘‘the ‘456
patent’’) and 5,596,595 (‘‘the ‘595
patent’’). 77 FR 65713 (October 30,
2012). The Commission named IPtronics
A/S of Roskilde, Denmark; IPtronics Inc.
of Menlo Park, California; FCI USA,
LLC, of Etters, Pennsylvania; FCI
Deutschland GmbH of Berlin, Germany;
FCI SA of Guyancourt, France; Mellanox
Technologies, Inc. of Sunnyvale,
California; and Mellanox Technologies
Ltd. of Yokneam, Israel (collectively,
‘‘Respondents’’) as respondents. The
Commission also named the Office of
Unfair Import Investigations as a party
in this investigation.
The final ID on violation was issued
on December 13, 2013. The ALJ issued
his recommended determination on
remedy, the public interest and bonding
on the same day. The ALJ found that a
violation of section 337 has occurred in
the importation into the United States,
the sale for importation, or the sale
within the United States after
importation of certain optoelectronic
devices for fiber optic communications,
components thereof, and products
containing the same by reason of
infringement of certain claims of the
‘595 patent. All the parties to this
investigation filed timely petitions for
review of various portions of the final
ID, as well as timely responses to the
petitions. The ALJ recommended that
the Commission issue a limited
exclusion order directed to
Respondents’ accused products that
infringe the ‘595 patent. The ALJ also
recommended that the Commission
issue a cease and desist order against
the Mellanox and FCI respondents.
On January 15, 2014, Complainants
filed a post-RD statement on the public
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interest pursuant to Commission Rule
201.50(a)(4). On the same day,
respondents Mellanox Technologies,
Inc. and Mellanox Technologies, Ltd.
also filed a submission pursuant to the
rule. No responses from the public were
received in response to the post-RD
Commission Notice issued on December
16, 2013. See Notice of Request for
Statements on the Public Interest (Dec.
16, 2013).
Having examined the record in this
investigation, including the ALJ’s final
ID, the petitions for review, and the
responses thereto, the Commission has
determined to review the ID in part. In
particular, the Commission has
determined as follows:
(I) With respect to the ‘595 patent:
(a) To review the ALJ’s claim
construction of the limitation ‘‘currentspreading layer’’ and infringement and
domestic industry (technical prong)
determinations relating to that
limitation;
(b) to review the ALJ’s determinations
with respect to whether Complainants
met the economic prong of the domestic
industry requirement under subsections
337(a)(3)(A), 337(a)(3)(B), or
337(a)(3)(C).
(II) With respect to the ‘456 patent:
(a) To review the ALJ’s claim
construction, infringement, and
domestic industry (technical prong)
determinations;
(b) to review the ALJ’s determinations
with respect to whether Complainants
met the economic prong of the domestic
industry requirement under subsections
337(a)(3)(A), 337(a)(3)(B), or
337(a)(3)(C).
The parties are requested to brief their
positions on only the following issues,
with reference to the applicable law and
the evidentiary record:
(1) With respect to the ID’s
determination regarding the economic
prong of the domestic industry
requirement with respect to both
asserted patents in this investigation,
discuss whether Complainants are
permitted to rely upon their research
and development investments to satisfy
the requirements under section
337(a)(3)(A) and (B) or whether such
investments are only applicable to
establishing a domestic industry under
section 337(a)(3)(C). Explain all relevant
statutory provisions, case law, and
Commission precedent pertaining to
this issue. See ID at 201.
(2) With respect to the ‘595 patent,
discuss Complainants’ investments in
research and development attributed to
their products relied upon for satisfying
the economic prong of the domestic
industry requirements as compared to
their complete QSFP product line.
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Federal Register / Vol. 79, No. 34 / Thursday, February 20, 2014 / Notices
Provide citations to the record and a
response to the argument raised by
Respondents as to ‘‘inherently
discordant’’ in the evidence relied upon
by Complainants and the ALJ (see
Respondents’ Petition at 74).
(3) Please provide evidentiary support
in the record regarding whether the U.S.
investments alleged by Complainants
are significant or substantial in the
context of the Complainants’ business,
the relevant industry, and market
realities.
(4) With respect to the ‘456 patent:
(a) Discuss whether there is an ‘‘intent
requirement’’ in the context of claim
construction of the claim limitation
‘‘parameter for affecting.’’ Also, please
address any discussion of an ‘‘intent
requirement’’ in the ID’s infringement
analysis with respect to that claim
limitation. ID at 104–108.
(b) The ALJ stated that:
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Moreover, the ALJ finds that Respondents
also presented evidence that [[****]] Thus,
the ALJ finds that this suggests the purpose
of that value is [[****]]
ID at 106–107.
Complainants argue, inter alia, that there is
no intrinsic or extrinsic evidence to support
the ALJ’s construction of this parameter such
that it must affect only the negative peak
portion, and no other portion of the
waveform, that these are open-ended
‘‘comprising’’ claims, and it is undisputed
that the inclusion of additional features is
insufficient to avoid infringement. See
Complainants’ Petition at 35 (citations
omitted).
(i) Please comment on the merits of
Complainants’ argument.
(ii) Does the ALJ’s analysis and
finding, quoted above, preclude his
determinations that neither the accused
products nor the alleged domestic
industry products meet the claim
limitation ‘‘parameter for affecting’’?
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 one or
more cease and desist orders that could
result in the Respondents 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 are likely to do so. For
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background, see Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843 (Dec. 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 cease and desist
orders would have on (1) the public
health and welfare, (2) competitive
conditions in the U.S. economy, (3) U.S.
production of articles that are like or
directly competitive with those that are
subject to investigation, and (4) U.S.
consumers. The Commission is
therefore interested in receiving written
submissions that address the
aforementioned public interest factors
in the context of this investigation. The
Commission also specifically requests
briefing from the parties concerning the
following:
Please provide evidentiary support in
the record regarding whether and to
what extent Respondents’ customers
that ‘‘operate in extremely important
and sensitive areas’’ would be adversely
impacted by the requested remedial
orders. Please explain your position as
to the appropriate scope of the remedies
that should issue in the event a
violation is found in view of the public
interest considerations of the public
health and welfare, competitive
conditions in the United States
economy, the production of like or
directly competitive articles in the
United States, and United States
consumers with specific reference to the
evidentiary record.
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.
Written Submissions: The parties to
the investigation are requested to file
written submissions on the issues under
review. The submissions should be
concise and thoroughly referenced to
the record in this investigation. 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
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9765
determination on remedy, the public
interest and bonding issued on
December 13, 2013, by the ALJ.
Complainants and the IA are also
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainants are further
requested to provide the expiration date
of the ‘595 and ‘456 patents and state
the HTSUS numbers under which the
accused articles are imported. The
written submissions and proposed
remedial orders must be filed no later
than the close of business on February
28, 2014. Reply submissions must be
filed no later than the close of business
on March 7, 2014. No further
submissions on these issues will be
permitted unless otherwise ordered by
the Commission. Party submissions
should not exceed 50 pages for the main
submissions and 25 pages for the reply
submissions.
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–860’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
secretary/fed_reg_notices/rules/
handbook_on_electronic_filing.pdf).
Persons with questions regarding filing
should contact the Secretary (202–205–
2000).
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
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 Part
210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
By order of the Commission.
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9766
Federal Register / Vol. 79, No. 34 / Thursday, February 20, 2014 / Notices
Issued: February 12, 2014.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2014–03550 Filed 2–19–14; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Antitrust Division
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Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—The Telemanagement
Forum
Notice is hereby given that, on
January 8, 2014, pursuant to Section 6(a)
of the National Cooperative Research
and Production Act of 1993, 15 U.S.C.
4301 et seq. (‘‘the Act’’), (‘‘The Forum’’)
has filed written notifications
simultaneously with the Attorney
General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, Gilgamesh OSS Services,
Weybridge, UNITED KINGDOM; Plug
and Play Tech Center, Sunnyvale, CA;
Sigma Software Solutions Inc, Toronto,
CANADA; Bromium, Cupertino, CA;
˜
Kreare Assessoria Empresarial, Sao
Paulo, BRAZIL; DAX Technologies,
Matawan, NJ; metaWEAVE, Centurion
CBD, SOUTH AFRICA; Transtelecom
JSC, Astana, KAZAKHSTAN; Inetra,
Novosibirsk, RUSSIA; Entel Chile PCS
Telecomunicaciones SA,
Santiago,CHILE; TeleMedia Strategy
Group, LLC, Pembroke Pines, FL; Oger
Telecom Management Services
Company Ltd., Istanbul, TURKEY;
Detica Ltd., London, UNITED
KINGDOM; iiNet Ltd., Subiaco,
AUSTRALIA; Saudi Business Machines,
Riyadh, SAUDI ARABIA; Swiss
Mobility Solutions, Alicante, SPAIN;
Telekom Networks Malawi Ltd.,
Blantyre, MALAWI; Timir LTD, Almaty,
KAZAKHSTAN; GAPASK Inc.,
Brossard, CANADA; Janus Consulting
Partners, Addison, TX; NTS New
Technology Systems GmbH, Wilhering,
AUSTRIA; Fachhochschule der Technik
(FHDW), Paderborn, GERMANY;
Celfocus, London, UNITED KINGDOM;
Ekinno Lab Sp. Z o.o., Gliwice,
POLAND; Neurocom SA, Athens,
GREECE; Century Telecom Lebanon,
Beirut, LEBANON; EnterpriseWeb, Glen
Falls, NY; Dayan Tech, Conakry,
GUINEA; Zain Kuwait, Safat, KUWAIT;
Calix, Inc., Petaluma, CA; TIERONE
OSS Technologies USA, Inc., Reston,
VA; and Instituto Costarricense de
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18:08 Feb 19, 2014
Jkt 232001
Electricidad ICE, San Jose, COSTA
RICA, have been added as a parties to
this venture.
The following members have changed
their names: SYMBIOSS to ARTIN
Solutions, Senec, SLOVAK REPUBLIC;
Delta Partners to Delta Partners FZ LLC,
Dubai, UNITED ARAB EMIRATES;
DGiT Consultants Pty Ltd. to DGIT,
South Yarra, AUSTRALIA; i2Cat to
´
Fundacio Privada i2cat, Barcelona,
SPAIN; Guavus, Inc. to Guavus, San
Mateo, CA; Nokia Siemens Networks to
Nokia Solutions and Networks, Munich,
GERMANY; Trilogy Software Bolivia to
Salamanca Solutions International,
Cochabamba, BOLIVIA; and Siemens
AG Oesterreich to Siemens Convergence
Creators GmbH, Vienna, AUSTRIA.
The following members have
withdrawn as parties to this venture:
Agile Birds sprl, Jalhay, BELGIUM;
Attensity Group, Palo Alto, CA;
BillingPlatform, Denver, CO; Boliviatel
S.A., Cochabamba, BOLIVIA; Eurex
Frankfurt AG, Eschborn, GERMANY;
Incoma, Moscow, RUSSIA; Intune
Networks, Dublin, IRELAND; IWF
˜
Consultoria e Treinamento, Sao Paulo,
BRAZIL; Kapsch CarrierCom AG,
Vienna, AUSTRIA; MACH Sarl,
Contern, LUXEMBOURG; MicroStrategy
South Africa (Pty) Ltd., Bryanston,
SOUTH AFRICA; Nipsoft Business
System AB, Solleftea, SWEDEN;
Northrop Grumman Systems
Corporation, acting through its Northrop
Grumman Information Systems Sector,
Cyber Solutions Division, McLean, VA;
OJSC ‘‘Rostelecom’’, Moscow, RUSSIA;
RPG Grupo Consultores C.A., Miranda,
VENEZUELA; Sandvine, Inc., Ontario,
CANADA; Software AG, Saarbrucken,
GERMANY; STC KOMSET, Moscow,
RUSSIA; Terminus Technologies Pvt.
Ltd., Ras Al Khaimah, UNITED ARAB
EMIRATES; The Rural Link, Calgary,
CANADA; Ultrapower Software Co.,
Ltd., Beijing, PEOPLE’S REPUBLIC Of
CHINA; VIA FERRATA, Hasselt,
BELGIUM; and Volubill, Montbonnot
Saint Martin, FRANCE.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and The Forum
intends to file additional written
notifications disclosing all changes in
membership.
On October 21, 1988, The Forum filed
its original notification pursuant to
Section 6(a) of the Act. The Department
of Justice published a notice in the
Federal Register pursuant to Section
6(b) of the Act on December 8, 1988 (53
FR 49615).
The last notification was filed with
the Department on October 7, 2013. A
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Sfmt 4703
notice was published in the Federal
Register pursuant to Section 6(b) of the
Act on November 12, 2013 (78 FR
67400).
Patricia A. Brink,
Director of Civil Enforcement, Antitrust
Division.
[FR Doc. 2014–03626 Filed 2–19–14; 8:45 am]
BILLING CODE P
DEPARTMENT OF JUSTICE
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Odva, Inc.
Notice is hereby given that, on
January 17, 2014, pursuant to Section
6(a) of the National Cooperative
Research and Production Act of 1993,
15 U.S.C. 4301 et seq. (‘‘the Act’’),
ODVA, Inc. (‘‘ODVA’’) has filed written
notifications simultaneously with the
Attorney General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, SABO Elektronik GmbH,
Schwerte, GERMANY; Hein Lanz
Industrial Tech., Xiqing District,
PEOPLE’S REPUBLIC OF CHINA; Quest
Technical Solutions, LLC, Melbourne,
FL; New Age Micro, LLC, Mansfield,
MA; and Osaka Vacuum, Ltd., Osaka,
JAPAN, have been added as parties to
this venture.
Also, Nor-Cal Products, Inc., Yreka,
CA; and Global Engineering Solutions
Co., Ltd., Hwaseong-City, Gyeonggi-do,
REPUBLIC OF KOREA, have withdrawn
as parties to this venture.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and ODVA
intends to file additional written
notifications disclosing all changes in
membership.
On June 21, 1995, ODVA filed its
original notification pursuant to Section
6(a) of the Act. The Department of
Justice published a notice in the Federal
Register pursuant to Section 6(b) of the
Act on February 15, 1996 (61 FR 6039).
The last notification was filed with
the Department on September 25, 2013.
A notice was published in the Federal
Register pursuant to Section 6(b) of the
E:\FR\FM\20FEN1.SGM
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]]>Agencies
[Federal Register Volume 79, Number 34 (Thursday, February 20, 2014)]
[Notices]
[Pages 9764-9766]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03550]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-860]
Commission Determination To Review in Part a Final Initial
Determination and Set a Schedule for Filing Written Submissions on the
Issues Under Review and on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``the Commission'') has determined to review in part the
final initial determination (``ID'') issued by the presiding
administrative law judge (``ALJ'') on December 13, 2013.
FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-3115. 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 October
30, 2012, based upon a complaint filed by Avago Technologies Fiber IP
(Singapore) Pte. Ltd. of Singapore; Avago Technologies General IP
(Singapore) Pte. Ltd. of Singapore; and Avago Technologies U.S. Inc. of
San Jose, California (collectively, ``Complainants''), alleging a
violation of section 337 of the Tariff Act of 1930, as amended, (19
U.S.C. 1337) in the importation, sale for importation, or sale within
the United States after importation of certain optoelectronic devices
for fiber optic communications, components thereof, and products
containing the same by reason of infringement of certain claims of U.S.
Patent Nos. 6,947,456 (``the `456 patent'') and 5,596,595 (``the `595
patent''). 77 FR 65713 (October 30, 2012). The Commission named
IPtronics A/S of Roskilde, Denmark; IPtronics Inc. of Menlo Park,
California; FCI USA, LLC, of Etters, Pennsylvania; FCI Deutschland GmbH
of Berlin, Germany; FCI SA of Guyancourt, France; Mellanox
Technologies, Inc. of Sunnyvale, California; and Mellanox Technologies
Ltd. of Yokneam, Israel (collectively, ``Respondents'') as respondents.
The Commission also named the Office of Unfair Import Investigations as
a party in this investigation.
The final ID on violation was issued on December 13, 2013. The ALJ
issued his recommended determination on remedy, the public interest and
bonding on the same day. The ALJ found that a violation of section 337
has occurred in the importation into the United States, the sale for
importation, or the sale within the United States after importation of
certain optoelectronic devices for fiber optic communications,
components thereof, and products containing the same by reason of
infringement of certain claims of the `595 patent. All the parties to
this investigation filed timely petitions for review of various
portions of the final ID, as well as timely responses to the petitions.
The ALJ recommended that the Commission issue a limited exclusion order
directed to Respondents' accused products that infringe the `595
patent. The ALJ also recommended that the Commission issue a cease and
desist order against the Mellanox and FCI respondents.
On January 15, 2014, Complainants filed a post-RD statement on the
public interest pursuant to Commission Rule 201.50(a)(4). On the same
day, respondents Mellanox Technologies, Inc. and Mellanox Technologies,
Ltd. also filed a submission pursuant to the rule. No responses from
the public were received in response to the post-RD Commission Notice
issued on December 16, 2013. See Notice of Request for Statements on
the Public Interest (Dec. 16, 2013).
Having examined the record in this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the ID in part. In particular,
the Commission has determined as follows:
(I) With respect to the `595 patent:
(a) To review the ALJ's claim construction of the limitation
``current-spreading layer'' and infringement and domestic industry
(technical prong) determinations relating to that limitation;
(b) to review the ALJ's determinations with respect to whether
Complainants met the economic prong of the domestic industry
requirement under subsections 337(a)(3)(A), 337(a)(3)(B), or
337(a)(3)(C).
(II) With respect to the `456 patent:
(a) To review the ALJ's claim construction, infringement, and
domestic industry (technical prong) determinations;
(b) to review the ALJ's determinations with respect to whether
Complainants met the economic prong of the domestic industry
requirement under subsections 337(a)(3)(A), 337(a)(3)(B), or
337(a)(3)(C).
The parties are requested to brief their positions on only the
following issues, with reference to the applicable law and the
evidentiary record:
(1) With respect to the ID's determination regarding the economic
prong of the domestic industry requirement with respect to both
asserted patents in this investigation, discuss whether Complainants
are permitted to rely upon their research and development investments
to satisfy the requirements under section 337(a)(3)(A) and (B) or
whether such investments are only applicable to establishing a domestic
industry under section 337(a)(3)(C). Explain all relevant statutory
provisions, case law, and Commission precedent pertaining to this
issue. See ID at 201.
(2) With respect to the `595 patent, discuss Complainants'
investments in research and development attributed to their products
relied upon for satisfying the economic prong of the domestic industry
requirements as compared to their complete QSFP product line.
[[Page 9765]]
Provide citations to the record and a response to the argument raised
by Respondents as to ``inherently discordant'' in the evidence relied
upon by Complainants and the ALJ (see Respondents' Petition at 74).
(3) Please provide evidentiary support in the record regarding
whether the U.S. investments alleged by Complainants are significant or
substantial in the context of the Complainants' business, the relevant
industry, and market realities.
(4) With respect to the `456 patent:
(a) Discuss whether there is an ``intent requirement'' in the
context of claim construction of the claim limitation ``parameter for
affecting.'' Also, please address any discussion of an ``intent
requirement'' in the ID's infringement analysis with respect to that
claim limitation. ID at 104-108.
(b) The ALJ stated that:
Moreover, the ALJ finds that Respondents also presented evidence
that [[****]] Thus, the ALJ finds that this suggests the purpose of
that value is [[****]]
ID at 106-107.
Complainants argue, inter alia, that there is no intrinsic or
extrinsic evidence to support the ALJ's construction of this
parameter such that it must affect only the negative peak portion,
and no other portion of the waveform, that these are open-ended
``comprising'' claims, and it is undisputed that the inclusion of
additional features is insufficient to avoid infringement. See
Complainants' Petition at 35 (citations omitted).
(i) Please comment on the merits of Complainants' argument.
(ii) Does the ALJ's analysis and finding, quoted above, preclude
his determinations that neither the accused products nor the alleged
domestic industry products meet the claim limitation ``parameter for
affecting''?
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 one or more cease and desist orders that could result in the
Respondents 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 are likely to do so. For
background, see Certain Devices for Connecting Computers via Telephone
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (Dec. 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 cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation. The Commission also specifically
requests briefing from the parties concerning the following:
Please provide evidentiary support in the record regarding whether
and to what extent Respondents' customers that ``operate in extremely
important and sensitive areas'' would be adversely impacted by the
requested remedial orders. Please explain your position as to the
appropriate scope of the remedies that should issue in the event a
violation is found in view of the public interest considerations of the
public health and welfare, competitive conditions in the United States
economy, the production of like or directly competitive articles in the
United States, and United States consumers with specific reference to
the evidentiary record.
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.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues under review. The submissions
should be concise and thoroughly referenced to the record in this
investigation. 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
on remedy, the public interest and bonding issued on December 13, 2013,
by the ALJ. Complainants and the IA are also requested to submit
proposed remedial orders for the Commission's consideration.
Complainants are further requested to provide the expiration date of
the `595 and `456 patents and state the HTSUS numbers under which the
accused articles are imported. The written submissions and proposed
remedial orders must be filed no later than the close of business on
February 28, 2014. Reply submissions must be filed no later than the
close of business on March 7, 2014. No further submissions on these
issues will be permitted unless otherwise ordered by the Commission.
Party submissions should not exceed 50 pages for the main submissions
and 25 pages for the reply submissions.
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-860'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted non-confidential version of the document must also be filed
simultaneously with 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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
[[Page 9766]]
Issued: February 12, 2014.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2014-03550 Filed 2-19-14; 8:45 am]
BILLING CODE 7020-02-P
