Certain Consumer Electronics with Display and Processing Capabilities; Commission Decision to Review In Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions; Extension of Target Date, 65698-65701 [2014-26246]

Download as PDF 65698 Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Notices Type of response Number of responses Hours per response Total time (Column B × Column C) A. B. C. D. Exploration Plan—43 CFR 3931.41 ............................................................................................ Modification of Approved Exploration Plan or Plan of Development—43 CFR 3931.50 ............ Production Maps and Production Reports—43 CFR 3931.70 .................................................... Records of Core or Test Hole Samples and Cuttings—43 CFR 3931.80 .................................. Application for Modification of Lease Size—43 CFR 3932.10, 3930.20, and 3932.30 .............. Request for Approval of Assignment of Record Title or Sublease or Notice of Overriding Royalty Interest Assignment—43 CFR subpart 3933 .................................................................... Relinquishment of Lease or Exploration License—43 CFR 3934.10 ......................................... Production and Sale Records—43 CFR 3935.10 ....................................................................... 1 1 1 1 1 24 24 16 16 12 24 24 16 16 12 2 1 1 10 18 16 20 18 16 Totals .................................................................................................................................... 24 ........................ 1,795 Jean Sonneman, Bureau of Land Management, Information Collection Clearance Officer. The public record for this investigation may be viewed on the Commission’s electronic docket (EDIS) at http:// edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission’s TDD terminal on (202) 205–1810. [FR Doc. 2014–26327 Filed 11–4–14; 8:45 am] BILLING CODE 4310–84–P INTERNATIONAL TRADE COMMISSION Certain Consumer Electronics with Display and Processing Capabilities; Commission Decision to Review In Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions; Extension of Target Date U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge’s (‘‘ALJ’’) final initial determination (‘‘final ID’’) issued on August 29, 2014, finding a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (‘‘section 337’’), and to extend the target date in the above-captioned investigation. 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 http://www.usitc.gov. mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: VerDate Sep<11>2014 17:42 Nov 04, 2014 The Commission instituted this investigation on June 25, 2013, based on a complaint filed by Graphics Properties Holdings, Inc. of New Rochelle, New York (‘‘GPH’’). 78 FR 38072–73 (June 25, 2013). The complaint alleged 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 consumer electronics with display and processing capabilities by reason of infringement of certain claims of United States Patent Nos. 6,650,327 (‘‘the ’327 patent’’); 8,144,158 (‘‘the ’158 patent’’); and 5,717,881 (‘‘the ’881 patent’’). The notice of investigation named as respondents Panasonic Corporation of Osaka, Japan and Panasonic Corporation of North America of Secaucus, New Jersey (collectively ‘‘Panasonic’’); Toshiba Corporation of Tokyo, Japan and Toshiba America Information Systems, Inc. of Irvine, California (collectively ‘‘Toshiba’’); Toshiba America, Inc. of New York, New York (‘‘Toshiba America’’); Vizio, Inc. of Irvine, California (‘‘Vizio’’); AmTran Logistics, Inc. of Irvine, California and AmTran Technology Co., Ltd. of New Taipei City, Taiwan (collectively ‘‘AmTran’’); and ZTE Corporation of Shenzhen, China, ZTE (USA) Inc. of Richardson, Texas, and ZTE Solutions of Richardson, Texas (collectively, ‘‘ZTE’’). The Office of Unfair Import Investigations (‘‘OUII’’) is a party to the investigation. The Commission later terminated the investigation with SUPPLEMENTARY INFORMATION: [Investigation No. 337–TA–884] Jkt 235001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 respect to Panasonic, Vizio, AmTran, and ZTE. On March 31, 2014, the Commission determined not to review an ID granting respondents’ motion for summary determination that claim 1 of the ’881 patent is invalid for indefiniteness, thus terminating the ’881 patent from the investigation. Notice (Mar. 31, 2014); Order Nos. 53 (Feb. 27, 2014), 60 (Mar. 11, 2014, correcting Order No. 53). On August 29, 2014, the ALJ issued his final ID, finding a violation of section 337 with respect to Toshiba. Specifically, the ALJ found that all of the accused products literally infringe claims 2, 3, 7, 25, and 26 of the ’327 patent and claims 1, 4, 7, and 10 of the ’158 patent (‘‘the asserted claims’’). The ALJ also found that none of the asserted claims of the ’327 patent are invalid as anticipated under 35 U.S.C. 102 or as obvious under 35 U.S.C. 103. The ALJ further found that none of the asserted claims of the ’158 patent are invalid as anticipated under 35 U.S.C. 102, as obvious under 35 U.S.C. 103, or for lack of written description under 35 U.S.C. 112. The ALJ also found that the respondents did not establish that any of the asserted patents are unenforceable due to estoppel based on GPH’s obligation to license the asserted patents under reasonable and nondiscriminatory (‘‘RAND’’) terms or that license exhaustion applies with respect to any of the asserted patents. The ALJ further found that a domestic industry exists with respect to the ’327 and ’158 patents. The ALJ found, however, that no violation of section 337 exists as to respondent Toshiba America with respect to the asserted claims of the ’327 and ’158 patents because GPH failed to satisfy the importation or sale requirement of section 337 establishing subject matter jurisdiction as to Toshiba America. No party petitioned for review of this finding. E:\FR\FM\05NON1.SGM 05NON1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Notices The final ID also includes the ALJ’s recommended determination (‘‘RD’’) on remedy and bonding. The ALJ recommends that the Commission issue a limited exclusion order barring entry of Toshiba’s consumer electronics with display and processing capabilities that infringe the asserted claims of the ’327 and ’158 patents in the event it finds a violation of section 337. The ALJ also recommends issuance of a cease and desist order against Toshiba, and recommends the imposition of a zero percent bond during the period of Presidential review because GPH failed to support its bond proposals. On September 15, 2014, Toshiba filed a petition for review of the final ID’s finding of violation. In particular, Toshiba requested review of the final ID’s findings concerning claim construction, invalidity, infringement, the economic prong of the domestic industry, Toshiba’s license defense, and Toshiba’s RAND defense. Also on September 15, 2014, GPH filed a contingent petition for review concerning the ALJ’s lack of findings with respect to whether GPH additionally satisfied the economic prong of the domestic industry requirement based on the domestic activities of its licensees pursuant to 19 U.S.C. 1337(a)(3)(A) and (B). On September 23, 2014, GPH filed a response to Toshiba’s petition for review, and Toshiba filed a response to GPH’s contingent petition for review. Also on September 23, 2014, the Commission investigative attorney filed a joint response to the private parties’ petitions. On September 30, 2014, Toshiba filed a post-RD statement on the public interest pursuant to Commission Rule 210.50(a)(4). On October 1, 2014, GPH filed its post-RD public interest statement pursant to the Commission Rule 210.50(a)(4). No responses were filed by the public in response to the post-RD Commission Notice issued on September 3, 2014. See Notice of Request for Statements on the Public Interest (Sept. 3, 2014). 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 part. Specifically, the Commission has determined to review the ALJ’s construction of the limitation ‘‘frame buffer’’ in claims 2, 3, and 7 of the ’327 patent and claims 1, 7, and 8 of the ’158 patents, and the claim limitations ‘‘scan converter’’ and ‘‘scan convert data’’ recited in claim 1 of the ’158 patent. In addition, the Commission has VerDate Sep<11>2014 17:42 Nov 04, 2014 Jkt 235001 determined to review the final ID’s finding that claim 1 of the ’158 patent is not invalid under 35 U.S.C. 112 for failure to satisfy the written description requirement. The Commission has also determined to review the final ID’s finding that the reference Martin, P. et al., ‘‘Turbo VRX: A High-Performance Graphics Workstation Architecture’’ (‘‘the Martin publication’’) does not anticipate claim 2 of the ’327 patent and claims 1, 4, 7, and 10 of the ’158 patent. The Commission has further determined to review the final ID’s finding that Toshiba failed to show by clear and convincing evidence that the asserted claims of the ’327 and ’158 patents are obvious in view of Martin, U.S. Patent No. 5,977,983 to Einkauf (‘‘Einkauf’’), and AT&T’s Pixel Machine (‘‘Pixel Machine’’), alone or in combination with other asserted prior art. Because the Commission has determined to review the ALJ’s constructions of the limitations ‘‘frame buffer,’’ ‘‘scan converter,’’ and ‘‘scan convert data,’’ the Commission has also determined to review the final ID’s finding of infringement with respect to all of the accused graphics processing units, including those for which Toshiba did not petition for review. The Commission has determined to review the final ID’s finding that GPH has satisfied the economic prong of the domestic industry requirement. Accordingly, the Commission has determined to review the final ID’s finding that GPH’s motion for summary determination that it satisfied the economic prong of the domestic industry requirement through its licensees’ activities under 337(a)(3)(A) and (B) for expenditures in labor, capital, plant, and equipment with respect to its licensees’ research and development activities is moot. Furthermore, because the Commission has determined to review the ALJ’s constructions of the limitations ‘‘frame buffer,’’ ‘‘scan converter,’’ and ‘‘scan convert data,’’ the Commission has determined to review the final ID’s finding that GPH satisfied the technical prong of the domestic industry requirement. The Commission has further determined to review the final ID’s finding that the defense of license exhaustion does not apply to certain of Toshiba’s accused products by virtue of a license agreement concerning Toshiba’s display panel manufacturers. The Commission has also determined to review the final ID’s finding that the ’327 patent is not subject to RAND encumbrances. PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 65699 The Commission has determined not to review the remaining issues decided in the final ID. 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 responses to the following questions: 1. Does the correct construction of the ‘‘frame buffer’’ limitation require that the claimed ‘‘frame buffer’’ must store ‘‘floating point color values’’ but need not store a ‘‘full frame of fragment or pixel data after rasterization is complete but immediately prior to the values being scanned out to the display?’’ Please discuss the correct construction of these terms in reference to the intrinsic evidence and Silicon Graphics, Inc. v. ATI Technologies, Inc., 607 F.3d 784, 792 (Fed. Cir. 2010). 2. Please discuss whether the claimed ‘‘scan converter’’ is capable of operating on an entirely floating point basis while receiving and outputting data that is not in floating point format. Please address how this affects the proper construction of the claim limitations ‘‘scan converter’’ and ‘‘scan convert data’’ and whether claim 1 of the ’158 patent is invalid under 35 U.S.C. 112 for failure to satisfy the written description requirement. 3. Please discuss whether the Martin publication by itself is enabling prior art. In addition, please address whether GPH’s reliance on the reference ‘‘High Speed High Quality Antialiased Vector Generation’’ by A. Barkans to discredit the Martin publication is legally permissible in the context of assessing whether the Martin publication is enabled. 4. Please discuss whether, if the Martin publication is enabled, the Martin publication itself reads on every limitation of claim 2 of the ’327 patent and claims 1, 4, 7, and 10 of the ’158 patent. 5. Please discuss whether, if the Martin publication is enabled, Martin alone or in combination with other prior art renders obvious the asserted claims of the ’327 and ’158 patents with respect to the claim limitations ‘‘frame buffer,’’ ‘‘s10e5 format,’’ ‘‘scan converter,’’ and ‘‘scan convert data.’’ 6. Please discuss whether Einkauf, alone or in combination with other prior art, renders obvious the asserted claims of the ’327 and ’158 patents with respect to the claim limitations ‘‘frame buffer,’’ ‘‘s10e5 format,’’ ‘‘scan converter,’’ and ‘‘scan convert data.’’ 7. Please discuss whether Pixel Machine, alone or in combination with other prior art, renders obvious the asserted claims of the ’327 and ’158 patents with respect to the claim limitations ‘‘frame buffer,’’ ‘‘texture circuit,’’ ‘‘s10e5 format,’’ ‘‘scan converter,’’ and ‘‘scan convert data.’’ In particular, please address if the question of whether Pixel Machine renders obvious the ‘‘texture circuit’’ limitation in claim 4 of the ’158 patent remains at issue. 8. In light of the Commission’s determination to review the ALJ’s construction of the claim limitations ‘‘frame buffer,’’ ‘‘scan converter,’’ and ‘‘scan convert data,’’ please discuss whether any of the E:\FR\FM\05NON1.SGM 05NON1 65700 Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES accused products infringe the asserted claims of the ’327 and ’158 patents. Also, please address whether the source code upon which GPH’s expert relied with respect to his opinion that the accused Toshiba products infringe the asserted claims of the ’327 and ’158 patents accurately reflects the operation of those products. 9. Please discuss, based on record evidence, the extent to which GPH’s purported licensing-based domestic industry will be ongoing following the termination of this investigation. 10. Please discuss whether GPH has satisfied the economic prong of the domestic industry requirement through its licensees’ activities under 337(a)(3)(A) and (B) for expenditures in labor, capital, plant, and equipment with respect to its licensees’ research and development activities. 11. In light of the Commission’s determination to review the ALJ’s construction of the claim limitations ‘‘frame buffer,’’ ‘‘scan converter,’’ and ‘‘scan convert data,’’ please discuss whether GPH has satisfied the technical prong of the domestic industry requirement. 12. Please explain the scope of licensed products recited in the license agreement concerning certain of Toshiba’s display panel manufacturers in accordance with the laws of the state of New York. Please discuss whether Toshiba is a sublicensee pursuant to this license agreement. 13. Please discuss whether GPH incurred a RAND obligation as to the ’327 and/or ’158 patent by reason of GPH’s or SGI’s conduct (1) before any of the standards committees with which GPH or SGI was involved, or (2) in negotiations with potential licensees. In particular, please address: (1) The legal significance of SGI’s purported statement to the OpenGL Architecture Review Board and the Khronos Group Board of Promoters that, as to the ’327 patent, it will discuss licensing on RAND terms; (2) whether the ’327 patent is incorporated into an optional extension; (3) if the ’327 patent is incorporated into an optional extension, is it considered part of the Ratified Specification; and (4) whether the asserted claims of the ’327 and/or ’158 patent are ‘‘Necessary Claims’’ or ‘‘Necessary Patent Claims.’’ 14. Please discuss the course of conduct between Toshiba and GPH regarding negotiations on RAND licensing terms. 15. Please discuss whether GPH ever submitted an IP Disclosure Certificate in connection with its participation with the Open GL standard under the Khronos Group Membership Agreement. 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 respondent(s) 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 VerDate Sep<11>2014 17:42 Nov 04, 2014 Jkt 235001 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 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. 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, including OUII, are requested to file written submissions on the issues identified in this notice. Parties to the investigation, including OUII, 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. Complainant is also requested to submit proposed remedial orders for the Commission’s consideration and to provide identification information for all importers of the subject articles. Complainant and OUII are also requested to state the dates that the PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 patents expire and the HTSUS numbers under which the accused products are imported. The written submissions and proposed remedial orders must be filed no later than close of business on November 21, 2014. Initial submissions are limited to 125 pages, not including any attachments or exhibits related to discussion of the public interest. Reply submissions must be filed no later than the close of business on December 5, 2014. Reply submissions are limited to 75 pages, not including any attachments or exhibits related to discussion of the public interest. The parties may not incorporate by reference their filings before the ALJ. 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 C...210.4(f)). Submissions should refer to the investigation number (‘‘Inv. No. 337– TA–884’’) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures, http://www.usitc.gov/ secretary/fed_reg_notices/rules/ handbook_on_electronic_filing.pdf). Persons with questions regarding filing should contact the Secretary (202–205– 2000). Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 01.6. 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 the any confidential filing. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary and on EDIS. The target date for completion of the investigation is extended to January 16, 2015. 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: October 30, 2014. E:\FR\FM\05NON1.SGM 05NON1 Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Notices By order of the Commission. Lisa R. Barton, Secretary to the Commission. the public notwithstanding the inclusion of the routine notice. BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE [OMB Number 1110-New] Agency Information Collection Activities Proposed eCollection eComments Requests 60-Day Notice Template for Extension of Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery—New Collection Federal Bureau of Investigation, Department of Justice. ACTION: Notice and request for comments. AGENCY: Federal Bureau of Investigation, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on the ‘‘Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ’’ for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et. seq.). This collection was developed as part of a Federal Government-wide effort to streamline the process for seeking feedback from the public on service delivery, this notice announces our intent to submit this collection to OMB for approval and solicits comments on specific aspects for the proposed information collection. DATES: Consideration will be given to all comments received by January 5, 2015. ADDRESSES: Submit comments by one of the following methods: • Web site: www.regulations.gov. • Email: oira_submission@ omb.eop.gov • Fax: (202) 395–5806 Comments submitted in response to this notice may be made available to the public by contacting John Kane at 1 (304) 625–3568. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: VerDate Sep<11>2014 17:42 Nov 04, 2014 If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact John Kane, National Data Exchange (N–DEx) Program Office, FBI—Criminal Justice Information Services (CJIS) Division, at 1 (304) 625– 3568, or email john.kane@ic.fbi.gov. SUPPLEMENTARY INFORMATION: Title: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery. Abstract: The proposed information collection activity provides a means to garner qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration’s commitment to improving service delivery. By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management. The solicitation of feedback will target areas such as: timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the Agency’s services will be unavailable. The Agency will only submit a collection for approval under this generic clearance if it meets the following conditions: • The collections are voluntary; • The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both FOR FURTHER INFORMATION CONTACT: [FR Doc. 2014–26246 Filed 11–4–14; 8:45 am] Jkt 235001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 65701 the respondents and the Federal Government; • The collections are noncontroversial and do not raise issues of concern to other Federal agencies; • Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future; • Personally identifiable information (PII) is collected only to the extent necessary and is not retained; • Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency; • Information gathered will not be used for the purpose of substantially informing influential policy decisions; and • Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study. Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: the target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential nonresponse bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results. As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. Current Actions: New Information Collection Request Type of Review: New Collection E:\FR\FM\05NON1.SGM 05NON1

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[Federal Register Volume 79, Number 214 (Wednesday, November 5, 2014)]
[Notices]
[Pages 65698-65701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26246]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-884]


Certain Consumer Electronics with Display and Processing 
Capabilities; Commission Decision to Review In Part a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions; Extension of Target Date

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part the presiding 
administrative law judge's (``ALJ'') final initial determination 
(``final ID'') issued on August 29, 2014, finding a violation of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337''), and to extend the target date in the above-captioned 
investigation.

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 http://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. 
Hearing-impaired persons are advised that information on this matter 
can be obtained by contacting the Commission's TDD terminal on (202) 
205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on June 25, 2013, based on a complaint filed by Graphics Properties 
Holdings, Inc. of New Rochelle, New York (``GPH''). 78 FR 38072-73 
(June 25, 2013). The complaint alleged 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 consumer electronics with 
display and processing capabilities by reason of infringement of 
certain claims of United States Patent Nos. 6,650,327 (``the '327 
patent''); 8,144,158 (``the '158 patent''); and 5,717,881 (``the '881 
patent''). The notice of investigation named as respondents Panasonic 
Corporation of Osaka, Japan and Panasonic Corporation of North America 
of Secaucus, New Jersey (collectively ``Panasonic''); Toshiba 
Corporation of Tokyo, Japan and Toshiba America Information Systems, 
Inc. of Irvine, California (collectively ``Toshiba''); Toshiba America, 
Inc. of New York, New York (``Toshiba America''); Vizio, Inc. of 
Irvine, California (``Vizio''); AmTran Logistics, Inc. of Irvine, 
California and AmTran Technology Co., Ltd. of New Taipei City, Taiwan 
(collectively ``AmTran''); and ZTE Corporation of Shenzhen, China, ZTE 
(USA) Inc. of Richardson, Texas, and ZTE Solutions of Richardson, Texas 
(collectively, ``ZTE''). The Office of Unfair Import Investigations 
(``OUII'') is a party to the investigation. The Commission later 
terminated the investigation with respect to Panasonic, Vizio, AmTran, 
and ZTE.
    On March 31, 2014, the Commission determined not to review an ID 
granting respondents' motion for summary determination that claim 1 of 
the '881 patent is invalid for indefiniteness, thus terminating the 
'881 patent from the investigation. Notice (Mar. 31, 2014); Order Nos. 
53 (Feb. 27, 2014), 60 (Mar. 11, 2014, correcting Order No. 53).
    On August 29, 2014, the ALJ issued his final ID, finding a 
violation of section 337 with respect to Toshiba. Specifically, the ALJ 
found that all of the accused products literally infringe claims 2, 3, 
7, 25, and 26 of the '327 patent and claims 1, 4, 7, and 10 of the '158 
patent (``the asserted claims''). The ALJ also found that none of the 
asserted claims of the '327 patent are invalid as anticipated under 35 
U.S.C. 102 or as obvious under 35 U.S.C. 103. The ALJ further found 
that none of the asserted claims of the '158 patent are invalid as 
anticipated under 35 U.S.C. 102, as obvious under 35 U.S.C. 103, or for 
lack of written description under 35 U.S.C. 112. The ALJ also found 
that the respondents did not establish that any of the asserted patents 
are unenforceable due to estoppel based on GPH's obligation to license 
the asserted patents under reasonable and nondiscriminatory (``RAND'') 
terms or that license exhaustion applies with respect to any of the 
asserted patents. The ALJ further found that a domestic industry exists 
with respect to the '327 and '158 patents.
    The ALJ found, however, that no violation of section 337 exists as 
to respondent Toshiba America with respect to the asserted claims of 
the '327 and '158 patents because GPH failed to satisfy the importation 
or sale requirement of section 337 establishing subject matter 
jurisdiction as to Toshiba America. No party petitioned for review of 
this finding.

[[Page 65699]]

    The final ID also includes the ALJ's recommended determination 
(``RD'') on remedy and bonding. The ALJ recommends that the Commission 
issue a limited exclusion order barring entry of Toshiba's consumer 
electronics with display and processing capabilities that infringe the 
asserted claims of the '327 and '158 patents in the event it finds a 
violation of section 337. The ALJ also recommends issuance of a cease 
and desist order against Toshiba, and recommends the imposition of a 
zero percent bond during the period of Presidential review because GPH 
failed to support its bond proposals.
    On September 15, 2014, Toshiba filed a petition for review of the 
final ID's finding of violation. In particular, Toshiba requested 
review of the final ID's findings concerning claim construction, 
invalidity, infringement, the economic prong of the domestic industry, 
Toshiba's license defense, and Toshiba's RAND defense. Also on 
September 15, 2014, GPH filed a contingent petition for review 
concerning the ALJ's lack of findings with respect to whether GPH 
additionally satisfied the economic prong of the domestic industry 
requirement based on the domestic activities of its licensees pursuant 
to 19 U.S.C. 1337(a)(3)(A) and (B).
    On September 23, 2014, GPH filed a response to Toshiba's petition 
for review, and Toshiba filed a response to GPH's contingent petition 
for review. Also on September 23, 2014, the Commission investigative 
attorney filed a joint response to the private parties' petitions.
    On September 30, 2014, Toshiba filed a post-RD statement on the 
public interest pursuant to Commission Rule 210.50(a)(4). On October 1, 
2014, GPH filed its post-RD public interest statement pursant to the 
Commission Rule 210.50(a)(4). No responses were filed by the public in 
response to the post-RD Commission Notice issued on September 3, 2014. 
See Notice of Request for Statements on the Public Interest (Sept. 3, 
2014).
    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 part.
    Specifically, the Commission has determined to review the ALJ's 
construction of the limitation ``frame buffer'' in claims 2, 3, and 7 
of the '327 patent and claims 1, 7, and 8 of the '158 patents, and the 
claim limitations ``scan converter'' and ``scan convert data'' recited 
in claim 1 of the '158 patent. In addition, the Commission has 
determined to review the final ID's finding that claim 1 of the '158 
patent is not invalid under 35 U.S.C. 112 for failure to satisfy the 
written description requirement.
    The Commission has also determined to review the final ID's finding 
that the reference Martin, P. et al., ``Turbo VRX: A High-Performance 
Graphics Workstation Architecture'' (``the Martin publication'') does 
not anticipate claim 2 of the '327 patent and claims 1, 4, 7, and 10 of 
the '158 patent. The Commission has further determined to review the 
final ID's finding that Toshiba failed to show by clear and convincing 
evidence that the asserted claims of the '327 and '158 patents are 
obvious in view of Martin, U.S. Patent No. 5,977,983 to Einkauf 
(``Einkauf''), and AT&T's Pixel Machine (``Pixel Machine''), alone or 
in combination with other asserted prior art.
    Because the Commission has determined to review the ALJ's 
constructions of the limitations ``frame buffer,'' ``scan converter,'' 
and ``scan convert data,'' the Commission has also determined to review 
the final ID's finding of infringement with respect to all of the 
accused graphics processing units, including those for which Toshiba 
did not petition for review.
    The Commission has determined to review the final ID's finding that 
GPH has satisfied the economic prong of the domestic industry 
requirement. Accordingly, the Commission has determined to review the 
final ID's finding that GPH's motion for summary determination that it 
satisfied the economic prong of the domestic industry requirement 
through its licensees' activities under 337(a)(3)(A) and (B) for 
expenditures in labor, capital, plant, and equipment with respect to 
its licensees' research and development activities is moot. 
Furthermore, because the Commission has determined to review the ALJ's 
constructions of the limitations ``frame buffer,'' ``scan converter,'' 
and ``scan convert data,'' the Commission has determined to review the 
final ID's finding that GPH satisfied the technical prong of the 
domestic industry requirement.
    The Commission has further determined to review the final ID's 
finding that the defense of license exhaustion does not apply to 
certain of Toshiba's accused products by virtue of a license agreement 
concerning Toshiba's display panel manufacturers. The Commission has 
also determined to review the final ID's finding that the '327 patent 
is not subject to RAND encumbrances.
    The Commission has determined not to review the remaining issues 
decided in the final ID.
    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 responses to the following questions:

    1. Does the correct construction of the ``frame buffer'' 
limitation require that the claimed ``frame buffer'' must store 
``floating point color values'' but need not store a ``full frame of 
fragment or pixel data after rasterization is complete but 
immediately prior to the values being scanned out to the display?'' 
Please discuss the correct construction of these terms in reference 
to the intrinsic evidence and Silicon Graphics, Inc. v. ATI 
Technologies, Inc., 607 F.3d 784, 792 (Fed. Cir. 2010).
    2. Please discuss whether the claimed ``scan converter'' is 
capable of operating on an entirely floating point basis while 
receiving and outputting data that is not in floating point format. 
Please address how this affects the proper construction of the claim 
limitations ``scan converter'' and ``scan convert data'' and whether 
claim 1 of the '158 patent is invalid under 35 U.S.C. 112 for 
failure to satisfy the written description requirement.
    3. Please discuss whether the Martin publication by itself is 
enabling prior art. In addition, please address whether GPH's 
reliance on the reference ``High Speed High Quality Antialiased 
Vector Generation'' by A. Barkans to discredit the Martin 
publication is legally permissible in the context of assessing 
whether the Martin publication is enabled.
    4. Please discuss whether, if the Martin publication is enabled, 
the Martin publication itself reads on every limitation of claim 2 
of the '327 patent and claims 1, 4, 7, and 10 of the '158 patent.
    5. Please discuss whether, if the Martin publication is enabled, 
Martin alone or in combination with other prior art renders obvious 
the asserted claims of the '327 and '158 patents with respect to the 
claim limitations ``frame buffer,'' ``s10e5 format,'' ``scan 
converter,'' and ``scan convert data.''
    6. Please discuss whether Einkauf, alone or in combination with 
other prior art, renders obvious the asserted claims of the '327 and 
'158 patents with respect to the claim limitations ``frame buffer,'' 
``s10e5 format,'' ``scan converter,'' and ``scan convert data.''
    7. Please discuss whether Pixel Machine, alone or in combination 
with other prior art, renders obvious the asserted claims of the 
'327 and '158 patents with respect to the claim limitations ``frame 
buffer,'' ``texture circuit,'' ``s10e5 format,'' ``scan converter,'' 
and ``scan convert data.'' In particular, please address if the 
question of whether Pixel Machine renders obvious the ``texture 
circuit'' limitation in claim 4 of the '158 patent remains at issue.
    8. In light of the Commission's determination to review the 
ALJ's construction of the claim limitations ``frame buffer,'' ``scan 
converter,'' and ``scan convert data,'' please discuss whether any 
of the

[[Page 65700]]

accused products infringe the asserted claims of the '327 and '158 
patents. Also, please address whether the source code upon which 
GPH's expert relied with respect to his opinion that the accused 
Toshiba products infringe the asserted claims of the '327 and '158 
patents accurately reflects the operation of those products.
    9. Please discuss, based on record evidence, the extent to which 
GPH's purported licensing-based domestic industry will be ongoing 
following the termination of this investigation.
    10. Please discuss whether GPH has satisfied the economic prong 
of the domestic industry requirement through its licensees' 
activities under 337(a)(3)(A) and (B) for expenditures in labor, 
capital, plant, and equipment with respect to its licensees' 
research and development activities.
    11. In light of the Commission's determination to review the 
ALJ's construction of the claim limitations ``frame buffer,'' ``scan 
converter,'' and ``scan convert data,'' please discuss whether GPH 
has satisfied the technical prong of the domestic industry 
requirement.
    12. Please explain the scope of licensed products recited in the 
license agreement concerning certain of Toshiba's display panel 
manufacturers in accordance with the laws of the state of New York. 
Please discuss whether Toshiba is a sublicensee pursuant to this 
license agreement.
    13. Please discuss whether GPH incurred a RAND obligation as to 
the '327 and/or '158 patent by reason of GPH's or SGI's conduct (1) 
before any of the standards committees with which GPH or SGI was 
involved, or (2) in negotiations with potential licensees. In 
particular, please address: (1) The legal significance of SGI's 
purported statement to the OpenGL Architecture Review Board and the 
Khronos Group Board of Promoters that, as to the '327 patent, it 
will discuss licensing on RAND terms; (2) whether the '327 patent is 
incorporated into an optional extension; (3) if the '327 patent is 
incorporated into an optional extension, is it considered part of 
the Ratified Specification; and (4) whether the asserted claims of 
the '327 and/or '158 patent are ``Necessary Claims'' or ``Necessary 
Patent Claims.''
    14. Please discuss the course of conduct between Toshiba and GPH 
regarding negotiations on RAND licensing terms.
    15. Please discuss whether GPH ever submitted an IP Disclosure 
Certificate in connection with its participation with the Open GL 
standard under the Khronos Group Membership Agreement.

    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 
respondent(s) 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 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.
    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, including 
OUII, are requested to file written submissions on the issues 
identified in this notice. Parties to the investigation, including 
OUII, 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. Complainant 
is also requested to submit proposed remedial orders for the 
Commission's consideration and to provide identification information 
for all importers of the subject articles. Complainant and OUII are 
also requested to state the dates that the patents expire and the HTSUS 
numbers under which the accused products are imported. The written 
submissions and proposed remedial orders must be filed no later than 
close of business on November 21, 2014. Initial submissions are limited 
to 125 pages, not including any attachments or exhibits related to 
discussion of the public interest. Reply submissions must be filed no 
later than the close of business on December 5, 2014. Reply submissions 
are limited to 75 pages, not including any attachments or exhibits 
related to discussion of the public interest. The parties may not 
incorporate by reference their filings before the ALJ. 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 C...210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-884'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions 
regarding filing should contact the Secretary (202-205-2000).
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 01.6. 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 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 target date for completion of the investigation is extended to 
January 16, 2015.
    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: October 30, 2014.


[[Page 65701]]


    By order of the Commission.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-26246 Filed 11-4-14; 8:45 am]
BILLING CODE 7020-02-P