Certain Mobile Devices and Related Software Thereof; Commission Decision To Remand Investigation to the Chief Administrative Law Judge Pursuant To Remand From the U.S. Court of Appeals for the Federal Circuit, 26993-26995 [2014-10769]
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Federal Register / Vol. 79, No. 91 / Monday, May 12, 2014 / Notices
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 United
States International Trade Commission
(USITC) at USITC 2. The public record
for this investigation may be viewed on
the Commission’s Electronic Document
Information System (EDIS) at EDIS 3.
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 has received a complaint
and a submission pursuant to section
210.8(b) of the Commission’s Rules of
Practice and Procedure filed on behalf
of Silicon Laboratories, Inc. on May 6,
2014. The complaint alleges violations
of section 337 of the Tariff Act of 1930
(19 U.S.C. 1337) in the importation into
the United States, the sale for
importation, and the sale within the
United States after importation of
certain silicon tuners and products
containing same, including television
tuners. The complaint name as
respondents Cresta Technology
Corporation of Santa Clara, CA;
Hauppauge Digital, Inc. of Hauppauge,
NY; Hauppauge Computer Works, Inc.
of Hauppauge, NY; PCTV Systems
S.a.r.l., Luxembourg of Luxembourg;
and PCTV Systems S.a.r.l. of Germany.
The complainant requests that the
Commission issue a general exclusion
order and a cease and desist order.
Proposed respondents, other
interested parties, and members of the
public are invited to file comments, not
to exceed five (5) pages in length,
inclusive of attachments, on any public
interest issues raised by the complaint
or section 210.8(b) filing. Comments
should address whether issuance of the
relief specifically requested by the
complainant in this investigation would
affect the public health and welfare in
the United States, competitive
conditions in the United States
economy, the production of like or
directly competitive articles in the
United States, or United States
consumers.
In particular, the Commission is
interested in comments that:
(i) Explain how the articles
potentially subject to the requested
2 United
States International Trade Commission
(USITC): https://edis.usitc.gov.
3 Electronic Document Information System
(EDIS): https://edis.usitc.gov.
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remedial orders are used in the United
States;
(ii) identify any public health, safety,
or welfare concerns in the United States
relating to the requested remedial
orders;
(iii) identify like or directly
competitive articles that complainant,
its licensees, or third parties make in the
United States which could replace the
subject articles if they were to be
excluded;
(iv) indicate whether complainant,
complainant’s licensees, and/or third
party suppliers have the capacity to
replace the volume of articles
potentially subject to the requested
exclusion order and/or a cease and
desist order within a commercially
reasonable time; and
(v) explain how the requested
remedial orders would impact United
States consumers.
Written submissions must be filed no
later than by close of business, eight
calendar days after the date of
publication of this notice in the Federal
Register. There will be further
opportunities for comment on the
public interest after the issuance of any
final initial determination in this
investigation.
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 docket number (‘‘Docket No. 3011’’)
in a prominent place on the cover page
and/or the first page. (See Handbook for
Electronic Filing Procedures, Electronic
Filing Procedures 4). 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. All nonconfidential
written submissions will be available for
public inspection at the Office of the
Secretary and on EDIS 5.
4 Handbook for Electronic Filing Procedures:
https://www.usitc.gov/secretary/fed_reg_notices/
rules/handbook_on_electronic_filing.pdf.
5 Electronic Document Information System
(EDIS): https://edis.usitc.gov.
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26993
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and of sections 201.10 and 210.8(c) of
the Commission’s Rules of Practice and
Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Issued: May 6, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014–10764 Filed 5–9–14; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–750]
Certain Mobile Devices and Related
Software Thereof; Commission
Decision To Remand Investigation to
the Chief Administrative Law Judge
Pursuant To Remand From the U.S.
Court of Appeals for the Federal
Circuit
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to remand
the above-captioned investigation to the
Chief Administrative Law Judge for
assignment to an administrative law
judge (‘‘ALJ’’) for an initial
determination on remand (‘‘RID’’)
concerning validity, infringement, and
domestic industry following remand
from the U.S. Court of Appeals for the
Federal Circuit (‘‘Federal Circuit’’).
FOR FURTHER INFORMATION CONTACT:
Megan M. Valentine, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
708–2301. 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.
SUMMARY:
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26994
Federal Register / Vol. 79, No. 91 / Monday, May 12, 2014 / Notices
The
Commission instituted this investigation
on November 30, 2010, based on a
complaint filed by Apple Inc., f/k/a
Apple Computer, Inc., of Cupertino,
California (‘‘Apple’’). 75 FR 74081–82.
The complaint alleges violations of
section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337, in the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain mobile devices and related
software by reason of infringement of
certain claims of U.S. Patent Nos.
7,812,828 (‘‘the ‘828 Patent’’); 7,663,607
(‘‘the ‘607 Patent’’); and 5,379,430 (‘‘the
‘430 Patent’’). The Commission’s notice
of investigation named Motorola, Inc.
n/k/a Motorola Solutions of
Schaumburg, Illinois (‘‘Motorola
Solutions’’) and Motorola Mobility, Inc.
(‘‘Motorola’’) of Libertyville, Illinois as
respondents. The Office of Unfair
Import Investigation was named as a
participating party. The Commission
subsequently terminated Motorola
Solutions as a respondent based on
withdrawal of allegations pursuant to
Commission Rule 210.21(a)(1) (19 CFR
210.21(a)(1)). Notice (Aug. 31, 2011).
On January 13, 2012, the ALJ issued
his final ID, finding no violation of
Section 337. Specifically, the ALJ
determined that the accused products
do not infringe the asserted claims of
the ’828 Patent either literally or under
the doctrine of equivalents (‘‘DOE’’).
The ALJ also found that the asserted
claims of the ’828 Patent are not invalid.
The ALJ further found that the accused
products literally infringe the asserted
claims of the ’430 and ’607 patents, but
do not infringe under DOE. The ALJ also
found that the asserted claims of the
’430 Patent are invalid under 35 U.S.C.
102 for anticipation, and that the
asserted claims of the ’607 Patent are
invalid under 35 U.S.C. 102 for
anticipation and under 35 U.S.C. 103 for
obviousness. The ALJ further found that
Apple has standing to assert the ’430
Patent, and that Motorola is not licensed
to practice the ’430 Patent. The ALJ also
found that Apple satisfied the domestic
industry requirement.
On January 30, 2012, Apple filed a
petition for review of certain aspects of
the ID’s findings concerning claim
construction infringement, and validity.
Also on January 30, 2012, Motorola filed
a contingent petition for review of
certain aspects of the ID’s findings
concerning claim construction,
infringement, validity, and domestic
industry. On February 7, 2012, Motorola
and Apple filed responses to each
other’s petitions. Also on February 7,
2012, the Commission investigative
emcdonald on DSK67QTVN1PROD with NOTICES
SUPPLEMENTARY INFORMATION:
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attorney (‘‘IA’’) filed a joint response to
both Apple’s and Motorola’s petitions.
On March 16, 2012, the Commission
issued a notice, determining to review
the ID in part, and on review, to affirm
the ALJ’s determination of no violation
and to terminate the investigation. 77
FR 16860–62. Specifically, the
Commission determined to review, and
on review to affirm, the ALJ’s finding
that the asserted claims of the ’828
patent are not infringed. The
Commission did not review the ID’s
construction of the limitation
‘‘mathematically fit[ting] an ellipse to at
least one of the [one or more] pixel
groups’’ in claims 1 and 10 of the ’828
patent. The Commission also
determined to review the ALJ’s finding
that the asserted claims of the ’607
patent are invalid for obviousness under
35 U.S.C. 103, and on review, to affirm
with modification the ID’s finding of
obviousness. The Commission did not
review the ID’s finding that the asserted
claims of the ’607 patent are anticipated
under 35 U.S.C. 102(e).
On April 13, 2012, Apple timely
appealed the Commission’s final
determination of no violation of section
337 as to the ’607 and ’828 patents to
the Federal Circuit. Specifically, Apple
appealed the ALJ’s unreviewed finding
that the asserted claims of the ’607
patent are anticipated by U.S. Patent No.
7,372,455 to Perski (‘‘Perski ’455’’).
Apple also appealed the Commission’s
determination that the asserted claims
of the ’607 patent are invalid for
obviousness in view of the prior art
reference ‘‘SmartSkin: An Infrastructure
for Freehand Manipulation on
Interactive Surfaces’’ by Jun Rekimoto
(‘‘SmartSkin’’) in combination with
Japan Unexamined Patent Application
Publication No. 2002–342033A to Jun
Rekimoto (‘‘Rekimoto ’033’’). Apple
further appealed the ALJ’s unreviewed
construction of the claim limitation
‘‘mathematically fit[ting] an ellipse to
. . . pixel groups’’ in the asserted
claims of the ’828 patent and the
Commission’s resulting determination
of non-infringement.
On August 7, 2013, the Federal
Circuit affirmed-in-part, reversed-inpart, and vacated-in-part the
Commission’s decision and remanded
for further proceedings. Apple, Inc. v.
Int’l Trade Comm’n., 725 F.3d 1356
(Fed. Cir. 2013). Specifically, the Court
affirmed the Commission’s
determination that Perski ’455
anticipates claims 1–7 of the ’607 patent
but reversed the Commission’s
determination that Perski ’455
anticipates claim 10 of the ’607 patent.
Id. at 1361–63. The Court also vacated
and remanded the Commission’s
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determination that claim 10 of the ’607
patent is invalid for obviousness in view
of the SmartSkin reference in
combination with Rekimoto ’033,
holding that the Commission failed to
perform the necessary analysis of
secondary considerations before finding
the claim invalid for obviousness
although the Court agreed with the
Commission’s finding that the combined
prior art references disclose all of the
limitations of claim 10. Id. at 1364–67.
The Court also reversed the
Commission’s construction of the
limitation ‘‘mathematically fit[ting] an
ellipse’’ in the asserted claims of the
’828 patent and remanded the issue of
infringement for the Commission to
make a determination in light of the
Court’s construction of that claim
limitation. Id. at 1367–68.
On September 6, 2013, intervenor
Motorola filed a combined petition for
panel rehearing and rehearing en banc
concerning the panel’s holding that the
Commission failed to consider
secondary considerations in finding
claim 10 of the ’607 patent invalid for
obviousness. On November 8, 2013, the
Court denied the petition. The mandate
issued on November 15, 2013, returning
jurisdiction to the Commission.
On January 7, 2014, the Commission
issued an Order directing the parties to
submit comments regarding what
further proceedings must be conducted
to comply with the Federal Circuit’s
remand. On January 22, 2014, Apple,
Motorola, and the IA submitted initial
comments. On January 29, 2014, the
parties submitted response comments.
Having examined the record of this
investigation, including the ALJ’s final
ID, the petitions for review, the
responses thereto, and the parties’
comments on remand, the Commission
has determined to remand the
investigation to the Chief ALJ for
assignment to a presiding ALJ to
determine certain outstanding issues
concerning violation of section 337 set
forth below.
With respect to the ’607 patent, the
Commission remands the issue of
whether Perski ’455 anticipates claim 10
of the ’607 patent. Specifically, the ALJ
should determine whether Apple can
establish an earlier priority date for
claim 10 of the ’607 patent than the
filing date of Perski ’455 such that
Perski ’455 is prior art to claim 10 in
light of the Commission’s prior
determination that Perski ’455 discloses
all of the limitations of claim 10. The
Commission further remands the issue
of whether claims 10 of the ’607 patent
is invalid for obviousness in view of
Smartskin in combination with
Rekimoto ’033. Specifically, the ALJ
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Federal Register / Vol. 79, No. 91 / Monday, May 12, 2014 / Notices
should determine whether Apple’s
evidence of secondary considerations
requires a finding of nonobviousness
with respect to the ’607 patent in light
of the Commission’s determination, as
affirmed by the Federal Circuit, that
SmartSkin in combination with
Rekimoto ’033 discloses all limitations
of claim 10. In deciding the issue of
obviousness, the ALJ should also
determine whether there is a nexus
between Apple’s evidence of secondary
considerations and the invention recited
in claim 10 of the ’607 patent. The
Commission also remands the issue of
domestic industry to the ALJ.
Specifically, the ALJ should determine
whether Apple’s iPhone 4 practices all
of the limitations of claim 10 of the ’607
patent.
With respect to the ’828 patent, the
Commission remands the issue of
infringement. Specifically, the ALJ
should determine whether Motorola’s
accused products infringe the asserted
claims of the ’828 patent under the
Federal Circuit’s construction of the
claim limitation ‘‘mathematically
fit[ting] an ellipse.’’ The Commission
further remands the issue of
anticipation. Specifically, the ALJ
should determine whether U.S. Patent
No. 5,825,352 to Bisset anticipates
claims 1 and 10 of the ’828 patent under
the Federal Circuit’s construction of the
claim limitation ‘‘mathematically
fit[ting] an ellipse.’’
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.
Issued: May 6, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014–10769 Filed 5–9–14; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
[OMB Number 1105–0101]
emcdonald on DSK67QTVN1PROD with NOTICES
Agency Information Collection
Activities; Proposed eCollection;
eComments requested
Office of Tribal Justice,
Department of Justice. Tribal Requests
for Accelerated Exercise of Jurisdiction
Under Section 204(a) of the Indian Civil
Rights Act of 1968, as Amended.
ACTION: 30-day notice.
AGENCY:
The Department of Justice,
Office of Tribal Justice, will be
SUMMARY:
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18:00 May 09, 2014
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submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
The proposed information collection
was previously published in the Federal
Register Volume 79, Number 43, pages
12527–12528, on March 5, 2014,
allowing for a 60 day comment period.
DATES: Comments are encouraged and
will be accepted for an additional 30
days until June 11, 2014.
FOR FURTHER INFORMATION CONTACT: If
you have comments, especially on the
estimated public burden or associated
response time, suggestions, or need
additional information, please contact
Mr. Tracy Toulou, Director, Office of
Tribal Justice, Department of Justice,
950 Pennsylvania Avenue NW., Room
2310, Washington, DC 20530; telephone:
(202) 514–8812.
SUPPLEMENTARY INFORMATION: This
process is conducted in accordance with
5 CFR 1320.10. Written comments and
suggestions from the public and affected
agencies concerning the proposed
collection of information are
encouraged. Your comments should
address one or more of the following
four points:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
—Enhance the quality, utility, and
clarity of the information to be
collected; and
—Minimize the burden of the collection
of information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
permitting electronic submission of
responses.
Overview of this information
collection:
(1) Type of Information Collection:
Extension of a currently approved
collection.
(2) Title of the Form/Collection:
Request for Accelerated Authority to
Exercise Special Domestic Violence
Criminal Jurisdiction.
(3) Agency form number: Not
applicable.
(4) Affected public who will be asked
or required to respond, as well as a brief
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26995
abstract: Primary: Tribal governments.
Other: None.
Abstract: The Violence Against
Women Reauthorization Act of 2013
(VAWA 2013) was signed into law on
March 7, 2013. Section 904 of VAWA
2013 recognizes the inherent power of
‘‘participating tribes’’ to exercise special
domestic violence criminal jurisdiction
over certain defendants, regardless of
their Indian or non-Indian status, who
commit acts of domestic violence or
dating violence or violate certain
protection orders in Indian country.
Section 904 also specifies the rights that
a participating tribe must provide to
defendants in special domestic violence
criminal jurisdiction cases. Section
908(b)(1) provides that tribes generally
cannot exercise the special jurisdiction
until March 7, 2015, but Section
908(b)(2) establishes a pilot project that
authorizes the Attorney General, in the
exercise of his discretion, to grant a
tribe’s request to be designed as a
‘‘participating tribe’’ on an accelerated
basis and to commence exercising the
special jurisdiction on a date (prior to
March 7, 2015) set by the Attorney
General, after coordinating with the
Secretary of the Interior, consulting with
affected tribes, and concluding that the
tribe’s criminal justice system has
adequate safeguards in place to protect
defendants’ rights, consistent with
Section 204 of the Indian Civil Rights
Act, as amended, 25 U.S.C. 1304. The
Department of Justice has published a
notice seeking comments on procedures
for an Indian tribe to request
designation as a ‘‘participating tribe’’ on
an accelerated basis), and for the
Attorney General to act on such
requests, 78 FR 35961 (June 14, 2013).
Pursuant to the notice, the Attorney
General has delegated to the Associate
Attorney General the authority to decide
whether to grant the request of a tribe
to be designated as a ‘‘participating
tribe’’ prior to March 7, 2015. The
purpose of the collection is to provide
information from the requesting tribe
sufficient for the Associate Attorney
General to make that decision.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: Fewer than 40 respondents;
average of 16 hours.
(6) An estimate of the total public
burden (in hours) associated with the
collection: There are an estimated 640
total burden hours associated with this
collection.
If additional information is required
contact: Jerri Murray, Department
Clearance Officer, United States
Department of Justice, Justice
Management Division, Policy and
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]]>Agencies
[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Notices]
[Pages 26993-26995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10769]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-750]
Certain Mobile Devices and Related Software Thereof; Commission
Decision To Remand Investigation to the Chief Administrative Law Judge
Pursuant To Remand From the U.S. Court of Appeals for the Federal
Circuit
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to remand the above-captioned investigation
to the Chief Administrative Law Judge for assignment to an
administrative law judge (``ALJ'') for an initial determination on
remand (``RID'') concerning validity, infringement, and domestic
industry following remand from the U.S. Court of Appeals for the
Federal Circuit (``Federal Circuit'').
FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-2301. 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.
[[Page 26994]]
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on November 30, 2010, based on a complaint filed by Apple Inc., f/k/a
Apple Computer, Inc., of Cupertino, California (``Apple''). 75 FR
74081-82. The complaint alleges violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain mobile devices and related software
by reason of infringement of certain claims of U.S. Patent Nos.
7,812,828 (``the `828 Patent''); 7,663,607 (``the `607 Patent''); and
5,379,430 (``the `430 Patent''). The Commission's notice of
investigation named Motorola, Inc. n/k/a Motorola Solutions of
Schaumburg, Illinois (``Motorola Solutions'') and Motorola Mobility,
Inc. (``Motorola'') of Libertyville, Illinois as respondents. The
Office of Unfair Import Investigation was named as a participating
party. The Commission subsequently terminated Motorola Solutions as a
respondent based on withdrawal of allegations pursuant to Commission
Rule 210.21(a)(1) (19 CFR 210.21(a)(1)). Notice (Aug. 31, 2011).
On January 13, 2012, the ALJ issued his final ID, finding no
violation of Section 337. Specifically, the ALJ determined that the
accused products do not infringe the asserted claims of the '828 Patent
either literally or under the doctrine of equivalents (``DOE''). The
ALJ also found that the asserted claims of the '828 Patent are not
invalid. The ALJ further found that the accused products literally
infringe the asserted claims of the '430 and '607 patents, but do not
infringe under DOE. The ALJ also found that the asserted claims of the
'430 Patent are invalid under 35 U.S.C. 102 for anticipation, and that
the asserted claims of the '607 Patent are invalid under 35 U.S.C. 102
for anticipation and under 35 U.S.C. 103 for obviousness. The ALJ
further found that Apple has standing to assert the '430 Patent, and
that Motorola is not licensed to practice the '430 Patent. The ALJ also
found that Apple satisfied the domestic industry requirement.
On January 30, 2012, Apple filed a petition for review of certain
aspects of the ID's findings concerning claim construction
infringement, and validity. Also on January 30, 2012, Motorola filed a
contingent petition for review of certain aspects of the ID's findings
concerning claim construction, infringement, validity, and domestic
industry. On February 7, 2012, Motorola and Apple filed responses to
each other's petitions. Also on February 7, 2012, the Commission
investigative attorney (``IA'') filed a joint response to both Apple's
and Motorola's petitions.
On March 16, 2012, the Commission issued a notice, determining to
review the ID in part, and on review, to affirm the ALJ's determination
of no violation and to terminate the investigation. 77 FR 16860-62.
Specifically, the Commission determined to review, and on review to
affirm, the ALJ's finding that the asserted claims of the '828 patent
are not infringed. The Commission did not review the ID's construction
of the limitation ``mathematically fit[ting] an ellipse to at least one
of the [one or more] pixel groups'' in claims 1 and 10 of the '828
patent. The Commission also determined to review the ALJ's finding that
the asserted claims of the '607 patent are invalid for obviousness
under 35 U.S.C. 103, and on review, to affirm with modification the
ID's finding of obviousness. The Commission did not review the ID's
finding that the asserted claims of the '607 patent are anticipated
under 35 U.S.C. 102(e).
On April 13, 2012, Apple timely appealed the Commission's final
determination of no violation of section 337 as to the '607 and '828
patents to the Federal Circuit. Specifically, Apple appealed the ALJ's
unreviewed finding that the asserted claims of the '607 patent are
anticipated by U.S. Patent No. 7,372,455 to Perski (``Perski '455'').
Apple also appealed the Commission's determination that the asserted
claims of the '607 patent are invalid for obviousness in view of the
prior art reference ``SmartSkin: An Infrastructure for Freehand
Manipulation on Interactive Surfaces'' by Jun Rekimoto (``SmartSkin'')
in combination with Japan Unexamined Patent Application Publication No.
2002-342033A to Jun Rekimoto (``Rekimoto '033''). Apple further
appealed the ALJ's unreviewed construction of the claim limitation
``mathematically fit[ting] an ellipse to . . . pixel groups'' in the
asserted claims of the '828 patent and the Commission's resulting
determination of non-infringement.
On August 7, 2013, the Federal Circuit affirmed-in-part, reversed-
in-part, and vacated-in-part the Commission's decision and remanded for
further proceedings. Apple, Inc. v. Int'l Trade Comm'n., 725 F.3d 1356
(Fed. Cir. 2013). Specifically, the Court affirmed the Commission's
determination that Perski '455 anticipates claims 1-7 of the '607
patent but reversed the Commission's determination that Perski '455
anticipates claim 10 of the '607 patent. Id. at 1361-63. The Court also
vacated and remanded the Commission's determination that claim 10 of
the '607 patent is invalid for obviousness in view of the SmartSkin
reference in combination with Rekimoto '033, holding that the
Commission failed to perform the necessary analysis of secondary
considerations before finding the claim invalid for obviousness
although the Court agreed with the Commission's finding that the
combined prior art references disclose all of the limitations of claim
10. Id. at 1364-67. The Court also reversed the Commission's
construction of the limitation ``mathematically fit[ting] an ellipse''
in the asserted claims of the '828 patent and remanded the issue of
infringement for the Commission to make a determination in light of the
Court's construction of that claim limitation. Id. at 1367-68.
On September 6, 2013, intervenor Motorola filed a combined petition
for panel rehearing and rehearing en banc concerning the panel's
holding that the Commission failed to consider secondary considerations
in finding claim 10 of the '607 patent invalid for obviousness. On
November 8, 2013, the Court denied the petition. The mandate issued on
November 15, 2013, returning jurisdiction to the Commission.
On January 7, 2014, the Commission issued an Order directing the
parties to submit comments regarding what further proceedings must be
conducted to comply with the Federal Circuit's remand. On January 22,
2014, Apple, Motorola, and the IA submitted initial comments. On
January 29, 2014, the parties submitted response comments.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, the responses thereto, and
the parties' comments on remand, the Commission has determined to
remand the investigation to the Chief ALJ for assignment to a presiding
ALJ to determine certain outstanding issues concerning violation of
section 337 set forth below.
With respect to the '607 patent, the Commission remands the issue
of whether Perski '455 anticipates claim 10 of the '607 patent.
Specifically, the ALJ should determine whether Apple can establish an
earlier priority date for claim 10 of the '607 patent than the filing
date of Perski '455 such that Perski '455 is prior art to claim 10 in
light of the Commission's prior determination that Perski '455
discloses all of the limitations of claim 10. The Commission further
remands the issue of whether claims 10 of the '607 patent is invalid
for obviousness in view of Smartskin in combination with Rekimoto '033.
Specifically, the ALJ
[[Page 26995]]
should determine whether Apple's evidence of secondary considerations
requires a finding of nonobviousness with respect to the '607 patent in
light of the Commission's determination, as affirmed by the Federal
Circuit, that SmartSkin in combination with Rekimoto '033 discloses all
limitations of claim 10. In deciding the issue of obviousness, the ALJ
should also determine whether there is a nexus between Apple's evidence
of secondary considerations and the invention recited in claim 10 of
the '607 patent. The Commission also remands the issue of domestic
industry to the ALJ. Specifically, the ALJ should determine whether
Apple's iPhone 4 practices all of the limitations of claim 10 of the
'607 patent.
With respect to the '828 patent, the Commission remands the issue
of infringement. Specifically, the ALJ should determine whether
Motorola's accused products infringe the asserted claims of the '828
patent under the Federal Circuit's construction of the claim limitation
``mathematically fit[ting] an ellipse.'' The Commission further remands
the issue of anticipation. Specifically, the ALJ should determine
whether U.S. Patent No. 5,825,352 to Bisset anticipates claims 1 and 10
of the '828 patent under the Federal Circuit's construction of the
claim limitation ``mathematically fit[ting] an ellipse.''
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.
Issued: May 6, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-10769 Filed 5-9-14; 8:45 am]
BILLING CODE 7020-02-P
