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]
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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 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.
[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 https://www.usitc.gov.
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SUMMARY:
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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]
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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.
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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
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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.
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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
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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Notices
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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
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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
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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, 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 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.
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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
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SUMMARY:
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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:
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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
]]>Agencies
[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 https://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov.
Hearing-impaired persons are advised that information on this matter
can be obtained by contacting the Commission's TDD terminal on (202)
205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on June 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, 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 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
