Certain Television Sets, Television Receivers, Television Tuners, and Components Thereof; Commission Determination to Review in Part a Final Initial Determination; Schedule for Filing Written Submissions, 26091-26094 [2015-10520]
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SUPPLEMENTARY INFORMATION:
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Description of Respondents: State and
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Dated: May 1, 2015.
Dennis G. Rice,
Acting Chief, Division of Regulatory Support.
[FR Doc. 2015–10582 Filed 5–5–15; 8:45 am]
BILLING CODE 4310–05–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–910]
Certain Television Sets, Television
Receivers, Television Tuners, and
Components Thereof; Commission
Determination to Review in Part a Final
Initial Determination; Schedule for
Filing Written Submissions
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 final initial determination
(‘‘final ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’) on
February 27, 2015, finding no violation
of section 337 of the Tariff Act of 1930,
in the above-captioned investigation.
The Commission has also determined to
deny the motion filed on March 16,
2015, by certain respondents to reopen
the record of the investigation. The
SUMMARY:
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Commission requests certain briefing
from the parties on the issues under
review, as indicated in this notice. The
Commission also requests briefing from
the parties and interested persons on the
issues of remedy, the public interest,
and bonding.
FOR FURTHER INFORMATION CONTACT:
Sidney A. Rosenzweig, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202–
708–2532. Copies of non-confidential
documents filed in connection with this
investigation are or will be available for
inspection during official business
hours (8:45 a.m. to 5:15 p.m.) in the
Office of the Secretary, U.S.
International Trade Commission, 500 E
Street SW., Washington, DC 20436,
telephone 202–205–2000. General
information concerning the Commission
may also be obtained by accessing its
Internet server (https://www.usitc.gov).
The public record for this investigation
may be viewed on the Commission’s
electronic docket (EDIS) at https://
edis.usitc.gov. Hearing-impaired
persons are advised that information on
this matter can be obtained by
contacting the Commission’s TDD
terminal on 202–205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on March 5, 2014, based on a complaint
filed by Cresta Technology Corporation,
of Santa Clara, California (‘‘Cresta’’). 79
FR 12526 (March 5, 2014). The
complaint alleged violations of section
337 of the Tariff Act of 1930, as
amended 19 U.S.C. 1337, by reason of
the infringement of certain claims from
three United States patents. The notice
of institution named ten respondents:
Silicon Laboratories, Inc. of Austin,
Texas (‘‘Silicon Labs’’); MaxLinear, Inc.
of Carlsbad, California (‘‘MaxLinear’’);
Samsung Electronics Co, Ltd. of Suwon,
Republic of Korea and Samsung
Electronics America, Inc. of Ridgefield
Park, New Jersey (collectively,
‘‘Samsung’’); VIZIO, Inc. of Irvine,
California (‘‘Vizio’’); LG Electronics, Inc.
of Seoul, Republic of Korea and LG
Electronics U.S.A., Inc. of Englewood
Cliffs, New Jersey (collectively, ‘‘LG’’);
and Sharp Corporation of Osaka, Japan
and Sharp Electronics Corporation of
Mahwah, New Jersey (collectively,
‘‘Sharp’’). The Office of Unfair Import
Investigations was also named as a
party.
On May 16, 2014, the ALJ issued an
initial determination granting Cresta’s
motion to amend the complaint and
notice of investigation to add six
additional respondents: SIO
International Inc. of Brea, California and
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Hon Hai Precision Industry Co., Ltd. of
New Taipei City, Taiwan (collectively,
‘‘SIO/Hon Hai’’); Top Victory
Investments, Ltd. of Hong Kong and
TPV International (USA), Inc. of Austin,
Texas (collectively, TPV’’); and Wistron
Corporation of New Taipei City, Taiwan
and Wistron Infocomm Technology
(America) Corporation of Flower
Mound, Texas (collectively, ‘‘Wistron’’).
Order No. 12 (May 16, 2014), not
reviewed, Notice (June 9, 2014).
On November 3, 2014, the ALJ
granted-in-part Samsung and Vizio’s
motion for summary determination of
noninfringement as to certain
televisions containing tuners made by a
third party, NXP Semiconductors N.V.
Order No. 46 at 27–30 (Nov. 3, 2014),
not reviewed, Notice (Dec. 3, 2014). On
November 21, 2014, the ALJ issued
granted Samsung’s and Vizio’s motion
for summary determination that Cresta
had not shown that certain Samsung
televisions with NXP tuners had been
imported. Order No. 58 at 4–5 (Nov. 21,
2014), not reviewed, Notice (Dec. 8,
2014).
On November 12. 2014, the ALJ
granted Cresta’s motion to partially
terminate the investigation as to one
asserted patent and certain asserted
claims of the two other asserted patents.
Order No. 50 (Nov. 12, 2014), not
reviewed, Notice (Dec. 3, 2014). The two
asserted patents still at issue in the
investigation are U.S. Patent No.
7,075,585 (‘‘the ’585 patent’’) and U.S.
Patent No. 7,265,792 (‘‘the ’792 patent’’).
Claims 1–3, 10, and 12–13 of the ’585
patent, and claims 1–4, 7–8, and 25–27
of the ’792 patent, remain at issue in the
investigation.
The presiding ALJ conducted a
hearing from December 1–5, 2014. On
February 27, 2015, the ALJ issued the
final ID. The final ID finds that Cresta
failed to satisfy the economic prong of
the domestic industry requirement, 19
U.S.C. 1337(a)(2), (a)(3), for both
asserted patents. To satisfy the
economic prong of the domestic
industry requirement, Cresta relied
upon claims 1–3, 5–6, 10, 13–14, 16–19,
and 21 of the ’585 patent; and claims 1–
4, 7, 10–12, 18–19, and 26–27 of the
’792 patent. The ID finds that certain
Cresta products—on their own, or
combined with certain televisions into
which Cresta’s tuners are
incorporated—practice all of the
domestic-industry claims of the ’585
patent, except for claim 14; as well as
all of the domestic-industry claims of
the ’792 patent except for claim 27.
The ID finds some Silicon Labs tuners
(as well as certain televisions containing
them) to infringe claims 1–3 of the ’585
patent, and no other asserted patent
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claims. The ID further finds some
MaxLinear tuners (as well as certain
televisions containing them) to infringe
claims 1–3, 10, 12, and 13 of the ’585
patent and claims 1–3, 7–8, and 25–26
of the ’792 patent.
The ID finds claims 1 and 2 of the
’585 patent to be invalid pursuant to 35
U.S.C. 102 (anticipation), and claim 3 of
the ’585 patent to be invalid pursuant to
35 U.S.C. 103 (obviousness). The ID
finds all of the asserted claims of the
’792 patent to be invalid pursuant to 35
U.S.C. 102 or 103.
The ALJ recommended that if a
violation of section 337 is found, that a
limited exclusion order and cease and
desist orders issue. The ALJ
recommended, however, that the
implementation of such orders be
delayed by twelve months in view of
public interest considerations. The ALJ
also recommended that there be zero
bond during the period of Presidential
review.
On March 16, 2015, petitions for
Commission review were filed by the
following parties: the Commission
investigative attorney (‘‘IA’’); Cresta; the
Silicon Labs respondents; and the
MaxLinear respondents. On March 24,
2015, OUII and Cresta each filed a reply
to the other parties’ petitions. That same
day, the respondents filed a reply to
Cresta’s petition.
The Commission’s determinations to
review are as follows:
1. Infringement
The Commission has determined not
to review the ID’s claim constructions.
ID at 16–49. The Commission has
determined to review the ID’s
infringement analysis concerning the
‘‘signal processor’’ for ‘‘processing . . .
in accordance with’’ the ‘‘format of’’ the
‘‘input RF signal’’ limitation of all
asserted patent claims. ’585 patent col.
6 line 65—col. 7 line 2 (claim 1); ’792
patent col. 10 lines 60–65 (claim 1); ID
at 57–60, 72–75, 84–85 & 94. The
Commission has also determined to
review the ID’s infringement analysis
concerning the ‘‘applies one of a
plurality of finite impulse response
filters . . . corresponding to a format
of’’ the ‘‘input RF signal’’ limitation of
asserted claims 10, 12 and 13 of the ’585
patent and all asserted claims of the
’792 patent. ’585 patent col. 7 lines 36–
40; ’792 patent col. 10 line 65—col. 11
line 2 (claim 1); ID at 67–68, 79–80, 85
& 93.
The Commission has also determined
to review the ID’s determinations
concerning contributory infringement of
the asserted patent claims.
Notwithstanding the foregoing review,
the Commission has determined not to
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review the ID’s exclusion of certain
testimony by Alan Hendrickson. Cresta
Pet. at 37. The Commission has also
determined not to review the ID’s
findings as to Cresta’s lack of evidence
regarding allegedly representative
products. See ID at 65–66, 78–79.
2. Invalidity
The Commission has determined not
to review the ID’s finding that that
claims 1–4 and 25–26 of the ’792 patent
are anticipated by the ’585 patent; and
not to review the ID’s finding that
claims 1 and 2 of the ’585 patent are
anticipated by Boie.
The Commission has determined to
review the ID’s determinations that that
the asserted claims are not obvious in
view of the combination of Boie and
VDP. The Commission has also
determined to review whether claim 3
of the ’585 patent is obvious in view of
Boie and Kerth; whether claim 25 of the
’792 patent is obvious in view of VDP
alone; and whether claim 26 of the ’792
patent is obvious in view of Boie and
Micronas.
The Commission has determined to
review the ID’s findings concerning an
on-sale bar that invalidates claims 1–4,
7–8, and 26–27 of the ’792 patent. ID at
142–47.
The Commission has determined to
review the ID’s finding that claim 1 of
the ’585 patent is not indefinite under
35 U.S.C. 112 in view of the plural and
singular use of the term ‘‘signals.’’ On
review, the Commission finds that claim
1 of the ’585 patent is not indefinite.
The respondents have failed to
demonstrate clear and convincing
evidence of invalidity. The use the
plural and singular for ‘‘signal’’ does not
create ambiguity in the claim, and
neither side’s experts had difficulty
ascertaining the scope of the claim.
The Commission has also determined
to review the issue of whether the
claims of the ’792 patent are invalid
under the written description
requirement of 35 U.S.C. 112. On
review, the Commission finds that the
claims are not invalid under the written
description requirement for the same
reasons provided in the ID as to the ’585
patent.
3. Domestic Industry
The Commission has determined to
review whether Cresta proved the
existence of articles protected by the
patents that incorporate the XC5000A
series tuner. See ID at 195–96. The
Commission has determined not to
review the ID’s remaining findings
concerning the technical prong of the
domestic industry requirement,
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including the ID’s findings as to tuners
other than the XC5000A series.
The Commission has also determined
to review the ID’s findings on the
economic prong of the domestic
industry requirement.
4. Other Matters
The ID recommends certain action
concerning a breach of the
administrative protective order in this
investigation. ID at 3 n.1; see 19 CFR
210.34(c)(2). That recommendation is
not part of the Commission review of
violation of section 337, see 19 CFR
210.42. Accordingly, any action by the
Commission will be conducted
separately from review of the ID, in
accordance with Commission practice
concerning possible breaches of
administrative protective orders. See
generally Notice, 80 FR 1664 (Jan. 13,
2015).
On March 16, 2015, Silicon Labs
moved the Commission to reopen the
record to admit as evidence a January 9,
2015, response by Cresta in an inter
partes review of the ’585 patent being
conducted by the U.S. Patent &
Trademark Office (‘‘PTO’’). The IA and
MaxLinear responded in support of the
motion; Cresta responded in opposition.
Silicon Labs, a party to the PTO review
proceeding, waited more than two
months to present the document to the
Commission. Silicon Labs could have
timely moved the ALJ to reopen the
record. Accordingly, the Commission
has determined to deny the motion.
All other issues upon which the
parties petitioned for review that are not
expressly recited above are not
reviewed.
The parties are asked to brief the
following issues with reference to the
applicable law and the existing
evidentiary record. For each argument
presented, the parties’ submissions
should set forth whether and/or how
that argument was presented in the
proceedings before the ALJ, with
citations to the record. See Order No. 2
11.1 (Mar. 4, 2014) (Ground Rules).
a. Cresta alleges that certain accused
products practice the claim limitations
under review because they can operate
to receive signals according to U.S.
standards (6 MHz) as well as foreign
standards that operate at a bandwidth
other than 6 MHz. Please explain
whether Cresta demonstrated that the
accused products are capable of
processing signals conforming to such
foreign standards without modification
to the accused televisions or tuners
(whether by software, firmware or
hardware). See, e.g., Finjan, Inc. v.
Secure Computing Corp., 626 F.3d 1197,
1204–05 (Fed. Cir. 2010); Silicon
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Graphics, Inc. v. ATI Technologies.,
Inc., 607 F.3d 784, 794 (Fed. Cir. 2010).
b. Please explain whether Cresta
demonstrated that Silicon Labs’ non-U
and non-V tuners (i.e., those models
without a ‘‘U’’ or a ‘‘V’’) process analog
and digital signals differently so as to
infringe claims 1–3 of the ’585 patent.
c. In connection with the
Commission’s consideration of the
infringement analysis of the two claim
limitations on review (‘‘signal
processor’’ and ‘‘applies one of a
plurality of finite impulse response
filters’’), please provide a chart that
presents the following: the accused
product, including its model number(s);
and for each of the two claim limitations
on review whether and why the accused
product does or does not practice that
claim limitation under the ID’s claim
constructions, including citations to the
evidence of record.
d. Cresta alleges the contributory
infringement of certain asserted patent
claims by respondents MaxLinear and
Silicon Labs. Please explain whether the
original and/or amended complaint
filed by Cresta provided the requisite
knowledge of the patents asserted in
this investigation. Parties are to discuss
Commission determinations (including
those in Commission Inv. Nos. 337–TA–
723, -744, and -770) as well as federal
caselaw including, for example,
Rembrandt Social Media, LP v.
Facebook, Inc., 950 F. Supp. 2d 876,
881–82 (E.D. Va. 2013) and cases
discussed therein. If one or both
complaints provide legally adequate
knowledge, please explain whether a
finding of contributory infringement
requires a showing of the respondents’
continued sale of infringing products
after being served with the complaint,
see, e.g., Cresta Post-Trial Br. 53, and
whether Cresta made that showing.
Please also discuss on what basis, if any,
other than the original or amended
complaint, the respondents were
provided with knowledge of the
asserted patents for purposes of
contributory infringement.
e. Please explain whether the accused
tuners are capable of substantial
noninfringing uses, including whether
such accused tuners are embedded in
systems on a chip, and whether that
embedment prevents substantial
noninfringing uses as to those
embedded tuners. Please also explain
whether and why, legally and factually,
the following statement is pertinent to
the Commission’s analysis of
contributory infringement in this
investigation: ‘‘Cresta is not accusing
any cable or satellite TV set-top boxes
in this Investigation, and my
infringement findings are limited
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to the SoCs where Cresta has
identified [an infringing] ‘plurality of
demodulators’. . . .’’ ID at 82.
f. In connection with the
Commission’s analysis of invalidity of
claims 10, 12, and 13 of the ’585 patent,
and the asserted claims of the ’792
patent in view of Boie and VDP, please
explain whether a programmable filter
meets the limitation of ‘‘appl[ying] one
of a plurality of finite impulse response
filters. . . .’’
g. Should the Commission find a
violation of section 337, please explain,
in view of the facts of this investigation
as well as Commission precedent
concerning remedies, whether publicinterest considerations, 19 U.S.C.
1337(d)(1), (f)(1), warrant tailoring of
any remedial orders, and if so, what that
tailoring should be. The parties’
discussion of the public interest
considerations implicated by this
investigation should account for the ID’s
unreviewed determination that Cresta
failed to provide adequate evidence as
to allegedly representative products. See
ID at 65–66, 78–79.
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, Comm’n Op. (December
1994).
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
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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. The
Commission is therefore interested in
receiving submissions concerning the
amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: The parties to
the investigation are requested to file
written submissions on the issues under
review. Parties to the investigation,
interested government agencies, and any
other interested parties are encouraged
to file written submissions on the issues
of remedy, the public interest, and
bonding. Such submissions should
address the recommended
determination by the ALJ on remedy
and bonding. The complainants and the
IA are also requested to submit
proposed remedial orders for the
Commission’s consideration. The
complainants are also requested to state
the date that the asserted 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 May 14, 2015,
and should not exceed 60 pages. Reply
submissions must be filed no later than
the close of business on May 23, 2015,
and such replies should not exceed 40
pages. The respondents may allocate the
page limits amongst themselves as they
see fit. No further submissions on these
issues will be permitted unless
otherwise ordered by the Commission.
Persons filing written submissions
must file the original document
electronically on or before the deadlines
stated above and submit 8 true paper
copies to the Office of the Secretary by
noon the next day pursuant to section
210.4(f) of the Commission’s Rules of
Practice and Procedure (19 CFR
210.4(f)). Submissions should refer to
the investigation number (‘‘Inv. No.
337–TA–910’’) 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).
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Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
the any confidential filing. All nonconfidential written submissions will be
available for public inspection at the
Office of the Secretary and on EDIS.
The authority for the Commission’s
determination is contained in section
337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337), and in Part
210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: April 30, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015–10520 Filed 5–5–15; 8:45 am]
BILLING CODE P
FOREIGN CLAIMS SETTLEMENT
COMMISSION
[F.C.S.C. Meeting and Hearing Notice No.
05–15]
Sunshine Act Meeting
The Foreign Claims Settlement
Commission, pursuant to its regulations
(45 CFR part 503.25) and the
Government in the Sunshine Act (5
U.S.C. 552b), hereby gives notice in
regard to the scheduling of open
meetings as follows:
Tuesday, May 12, 2015: 10:00 a.m.—
Issuance of Proposed Decisions in
claims against Libya.
Status: Open.
All meetings are held at the Foreign
Claims Settlement Commission, 600 E
Street NW., Washington, DC. Requests
for information, or advance notices of
intention to observe an open meeting,
may be directed to: Patricia M. Hall,
Foreign Claims Settlement Commission,
600 E Street NW., Suite 6002,
Washington, DC 20579. Telephone:
(202) 616–6975.
Brian M. Simkin,
Chief Counsel.
[FR Doc. 2015–11037 Filed 5–4–15; 4:15 pm]
BILLING CODE 4410–BA–P
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DEPARTMENT OF LABOR
Employee Benefits Security
Administration
176th Meeting of the Advisory Council
on Employee Welfare and Pension
Benefit Plans; Notice of Meeting
Pursuant to the authority contained in
Section 512 of the Employee Retirement
Income Security Act of 1974 (ERISA), 29
U.S.C. 1142, the 176th meeting of the
Advisory Council on Employee Welfare
and Pension Benefit Plans (also known
as the ERISA Advisory Council) will be
held on May 27–29, 2015.
The three-day meeting will take place
at the U.S. Department of Labor, 200
Constitution Avenue NW., Washington,
DC 20210 in C5521 Room 4. The
meeting will run from 9:00 a.m. to
approximately 5:30 p.m. on May 27–28
and from 8:30 a.m. to 4:30 p.m. on May
29, with a one hour break for lunch each
day. The purpose of the open meeting
is for Advisory Council members to hear
testimony from invited witnesses and to
receive an update from the Employee
Benefits Security Administration
(EBSA). The EBSA update is scheduled
for the morning of May 29, subject to
change.
The Advisory Council will study the
following issues: (1) Model Notices and
Plan Sponsor Education on Lifetime
Plan Participation, on May 27 and (2)
Model Notices and Disclosures for
Pension Risk Transfers, on May 28.
Descriptions of these topics are
available on the Advisory Council page
of the EBSA Web site, at www.dol.gov/
ebsa/aboutebsa/erisa_advisory_
council.html. In addition, the Advisory
Council will hear testimony on May 29
on privacy and security matters
affecting the two issues above.
Organizations or members of the
public wishing to submit a written
statement may do so by submitting 30
copies on or before May 20, 2015 to
Larry Good, Executive Secretary, ERISA
Advisory Council, U.S. Department of
Labor, Suite N–5623, 200 Constitution
Avenue NW., Washington, DC 20210.
Statements also may be submitted as
email attachments in word processing or
pdf format transmitted to good.larry@
dol.gov. It is requested that statements
not be included in the body of the
email. Statements deemed relevant by
the Advisory Council and received on or
before May 20 will be included in the
record of the meeting and made
available through the EBSA Public
Disclosure Room, along with witness
statements. Do not include any
personally identifiable information
(such as name, address, or other contact
E:\FR\FM\06MYN1.SGM
06MYN1
]]>Agencies
[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Notices]
[Pages 26091-26094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10520]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-910]
Certain Television Sets, Television Receivers, Television Tuners,
and Components Thereof; Commission Determination to Review in Part a
Final Initial Determination; Schedule for Filing Written Submissions
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 final initial
determination (``final ID'') issued by the presiding administrative law
judge (``ALJ'') on February 27, 2015, finding no violation of section
337 of the Tariff Act of 1930, in the above-captioned investigation.
The Commission has also determined to deny the motion filed on March
16, 2015, by certain respondents to reopen the record of the
investigation. The Commission requests certain briefing from the
parties on the issues under review, as indicated in this notice. The
Commission also requests briefing from the parties and interested
persons on the issues of remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202-708-2532. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone 202-205-2000. General information concerning the Commission
may also be obtained by accessing its Internet server (https://www.usitc.gov). The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov.
Hearing-impaired persons are advised that information on this matter
can be obtained by contacting the Commission's TDD terminal on 202-205-
1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on March 5, 2014, based on a complaint filed by Cresta Technology
Corporation, of Santa Clara, California (``Cresta''). 79 FR 12526
(March 5, 2014). The complaint alleged violations of section 337 of the
Tariff Act of 1930, as amended 19 U.S.C. 1337, by reason of the
infringement of certain claims from three United States patents. The
notice of institution named ten respondents: Silicon Laboratories, Inc.
of Austin, Texas (``Silicon Labs''); MaxLinear, Inc. of Carlsbad,
California (``MaxLinear''); Samsung Electronics Co, Ltd. of Suwon,
Republic of Korea and Samsung Electronics America, Inc. of Ridgefield
Park, New Jersey (collectively, ``Samsung''); VIZIO, Inc. of Irvine,
California (``Vizio''); LG Electronics, Inc. of Seoul, Republic of
Korea and LG Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey
(collectively, ``LG''); and Sharp Corporation of Osaka, Japan and Sharp
Electronics Corporation of Mahwah, New Jersey (collectively,
``Sharp''). The Office of Unfair Import Investigations was also named
as a party.
On May 16, 2014, the ALJ issued an initial determination granting
Cresta's motion to amend the complaint and notice of investigation to
add six additional respondents: SIO International Inc. of Brea,
California and
[[Page 26092]]
Hon Hai Precision Industry Co., Ltd. of New Taipei City, Taiwan
(collectively, ``SIO/Hon Hai''); Top Victory Investments, Ltd. of Hong
Kong and TPV International (USA), Inc. of Austin, Texas (collectively,
TPV''); and Wistron Corporation of New Taipei City, Taiwan and Wistron
Infocomm Technology (America) Corporation of Flower Mound, Texas
(collectively, ``Wistron''). Order No. 12 (May 16, 2014), not reviewed,
Notice (June 9, 2014).
On November 3, 2014, the ALJ granted-in-part Samsung and Vizio's
motion for summary determination of noninfringement as to certain
televisions containing tuners made by a third party, NXP Semiconductors
N.V. Order No. 46 at 27-30 (Nov. 3, 2014), not reviewed, Notice (Dec.
3, 2014). On November 21, 2014, the ALJ issued granted Samsung's and
Vizio's motion for summary determination that Cresta had not shown that
certain Samsung televisions with NXP tuners had been imported. Order
No. 58 at 4-5 (Nov. 21, 2014), not reviewed, Notice (Dec. 8, 2014).
On November 12. 2014, the ALJ granted Cresta's motion to partially
terminate the investigation as to one asserted patent and certain
asserted claims of the two other asserted patents. Order No. 50 (Nov.
12, 2014), not reviewed, Notice (Dec. 3, 2014). The two asserted
patents still at issue in the investigation are U.S. Patent No.
7,075,585 (``the '585 patent'') and U.S. Patent No. 7,265,792 (``the
'792 patent''). Claims 1-3, 10, and 12-13 of the '585 patent, and
claims 1-4, 7-8, and 25-27 of the '792 patent, remain at issue in the
investigation.
The presiding ALJ conducted a hearing from December 1-5, 2014. On
February 27, 2015, the ALJ issued the final ID. The final ID finds that
Cresta failed to satisfy the economic prong of the domestic industry
requirement, 19 U.S.C. 1337(a)(2), (a)(3), for both asserted patents.
To satisfy the economic prong of the domestic industry requirement,
Cresta relied upon claims 1-3, 5-6, 10, 13-14, 16-19, and 21 of the
'585 patent; and claims 1-4, 7, 10-12, 18-19, and 26-27 of the '792
patent. The ID finds that certain Cresta products--on their own, or
combined with certain televisions into which Cresta's tuners are
incorporated--practice all of the domestic-industry claims of the '585
patent, except for claim 14; as well as all of the domestic-industry
claims of the '792 patent except for claim 27.
The ID finds some Silicon Labs tuners (as well as certain
televisions containing them) to infringe claims 1-3 of the '585 patent,
and no other asserted patent claims. The ID further finds some
MaxLinear tuners (as well as certain televisions containing them) to
infringe claims 1-3, 10, 12, and 13 of the '585 patent and claims 1-3,
7-8, and 25-26 of the '792 patent.
The ID finds claims 1 and 2 of the '585 patent to be invalid
pursuant to 35 U.S.C. 102 (anticipation), and claim 3 of the '585
patent to be invalid pursuant to 35 U.S.C. 103 (obviousness). The ID
finds all of the asserted claims of the '792 patent to be invalid
pursuant to 35 U.S.C. 102 or 103.
The ALJ recommended that if a violation of section 337 is found,
that a limited exclusion order and cease and desist orders issue. The
ALJ recommended, however, that the implementation of such orders be
delayed by twelve months in view of public interest considerations. The
ALJ also recommended that there be zero bond during the period of
Presidential review.
On March 16, 2015, petitions for Commission review were filed by
the following parties: the Commission investigative attorney (``IA'');
Cresta; the Silicon Labs respondents; and the MaxLinear respondents. On
March 24, 2015, OUII and Cresta each filed a reply to the other
parties' petitions. That same day, the respondents filed a reply to
Cresta's petition.
The Commission's determinations to review are as follows:
1. Infringement
The Commission has determined not to review the ID's claim
constructions. ID at 16-49. The Commission has determined to review the
ID's infringement analysis concerning the ``signal processor'' for
``processing . . . in accordance with'' the ``format of'' the ``input
RF signal'' limitation of all asserted patent claims. '585 patent col.
6 line 65--col. 7 line 2 (claim 1); '792 patent col. 10 lines 60-65
(claim 1); ID at 57-60, 72-75, 84-85 & 94. The Commission has also
determined to review the ID's infringement analysis concerning the
``applies one of a plurality of finite impulse response filters . . .
corresponding to a format of'' the ``input RF signal'' limitation of
asserted claims 10, 12 and 13 of the '585 patent and all asserted
claims of the '792 patent. '585 patent col. 7 lines 36-40; '792 patent
col. 10 line 65--col. 11 line 2 (claim 1); ID at 67-68, 79-80, 85 & 93.
The Commission has also determined to review the ID's
determinations concerning contributory infringement of the asserted
patent claims.
Notwithstanding the foregoing review, the Commission has determined
not to review the ID's exclusion of certain testimony by Alan
Hendrickson. Cresta Pet. at 37. The Commission has also determined not
to review the ID's findings as to Cresta's lack of evidence regarding
allegedly representative products. See ID at 65-66, 78-79.
2. Invalidity
The Commission has determined not to review the ID's finding that
that claims 1-4 and 25-26 of the '792 patent are anticipated by the
'585 patent; and not to review the ID's finding that claims 1 and 2 of
the '585 patent are anticipated by Boie.
The Commission has determined to review the ID's determinations
that that the asserted claims are not obvious in view of the
combination of Boie and VDP. The Commission has also determined to
review whether claim 3 of the '585 patent is obvious in view of Boie
and Kerth; whether claim 25 of the '792 patent is obvious in view of
VDP alone; and whether claim 26 of the '792 patent is obvious in view
of Boie and Micronas.
The Commission has determined to review the ID's findings
concerning an on-sale bar that invalidates claims 1-4, 7-8, and 26-27
of the '792 patent. ID at 142-47.
The Commission has determined to review the ID's finding that claim
1 of the '585 patent is not indefinite under 35 U.S.C. 112 in view of
the plural and singular use of the term ``signals.'' On review, the
Commission finds that claim 1 of the '585 patent is not indefinite. The
respondents have failed to demonstrate clear and convincing evidence of
invalidity. The use the plural and singular for ``signal'' does not
create ambiguity in the claim, and neither side's experts had
difficulty ascertaining the scope of the claim.
The Commission has also determined to review the issue of whether
the claims of the '792 patent are invalid under the written description
requirement of 35 U.S.C. 112. On review, the Commission finds that the
claims are not invalid under the written description requirement for
the same reasons provided in the ID as to the '585 patent.
3. Domestic Industry
The Commission has determined to review whether Cresta proved the
existence of articles protected by the patents that incorporate the
XC5000A series tuner. See ID at 195-96. The Commission has determined
not to review the ID's remaining findings concerning the technical
prong of the domestic industry requirement,
[[Page 26093]]
including the ID's findings as to tuners other than the XC5000A series.
The Commission has also determined to review the ID's findings on
the economic prong of the domestic industry requirement.
4. Other Matters
The ID recommends certain action concerning a breach of the
administrative protective order in this investigation. ID at 3 n.1; see
19 CFR 210.34(c)(2). That recommendation is not part of the Commission
review of violation of section 337, see 19 CFR 210.42. Accordingly, any
action by the Commission will be conducted separately from review of
the ID, in accordance with Commission practice concerning possible
breaches of administrative protective orders. See generally Notice, 80
FR 1664 (Jan. 13, 2015).
On March 16, 2015, Silicon Labs moved the Commission to reopen the
record to admit as evidence a January 9, 2015, response by Cresta in an
inter partes review of the '585 patent being conducted by the U.S.
Patent & Trademark Office (``PTO''). The IA and MaxLinear responded in
support of the motion; Cresta responded in opposition. Silicon Labs, a
party to the PTO review proceeding, waited more than two months to
present the document to the Commission. Silicon Labs could have timely
moved the ALJ to reopen the record. Accordingly, the Commission has
determined to deny the motion.
All other issues upon which the parties petitioned for review that
are not expressly recited above are not reviewed.
The parties are asked to brief the following issues with reference
to the applicable law and the existing evidentiary record. For each
argument presented, the parties' submissions should set forth whether
and/or how that argument was presented in the proceedings before the
ALJ, with citations to the record. See Order No. 2 11.1 (Mar. 4, 2014)
(Ground Rules).
a. Cresta alleges that certain accused products practice the claim
limitations under review because they can operate to receive signals
according to U.S. standards (6 MHz) as well as foreign standards that
operate at a bandwidth other than 6 MHz. Please explain whether Cresta
demonstrated that the accused products are capable of processing
signals conforming to such foreign standards without modification to
the accused televisions or tuners (whether by software, firmware or
hardware). See, e.g., Finjan, Inc. v. Secure Computing Corp., 626 F.3d
1197, 1204-05 (Fed. Cir. 2010); Silicon Graphics, Inc. v. ATI
Technologies., Inc., 607 F.3d 784, 794 (Fed. Cir. 2010).
b. Please explain whether Cresta demonstrated that Silicon Labs'
non-U and non-V tuners (i.e., those models without a ``U'' or a ``V'')
process analog and digital signals differently so as to infringe claims
1-3 of the '585 patent.
c. In connection with the Commission's consideration of the
infringement analysis of the two claim limitations on review (``signal
processor'' and ``applies one of a plurality of finite impulse response
filters''), please provide a chart that presents the following: the
accused product, including its model number(s); and for each of the two
claim limitations on review whether and why the accused product does or
does not practice that claim limitation under the ID's claim
constructions, including citations to the evidence of record.
d. Cresta alleges the contributory infringement of certain asserted
patent claims by respondents MaxLinear and Silicon Labs. Please explain
whether the original and/or amended complaint filed by Cresta provided
the requisite knowledge of the patents asserted in this investigation.
Parties are to discuss Commission determinations (including those in
Commission Inv. Nos. 337-TA-723, -744, and -770) as well as federal
caselaw including, for example, Rembrandt Social Media, LP v. Facebook,
Inc., 950 F. Supp. 2d 876, 881-82 (E.D. Va. 2013) and cases discussed
therein. If one or both complaints provide legally adequate knowledge,
please explain whether a finding of contributory infringement requires
a showing of the respondents' continued sale of infringing products
after being served with the complaint, see, e.g., Cresta Post-Trial Br.
53, and whether Cresta made that showing. Please also discuss on what
basis, if any, other than the original or amended complaint, the
respondents were provided with knowledge of the asserted patents for
purposes of contributory infringement.
e. Please explain whether the accused tuners are capable of
substantial noninfringing uses, including whether such accused tuners
are embedded in systems on a chip, and whether that embedment prevents
substantial noninfringing uses as to those embedded tuners. Please also
explain whether and why, legally and factually, the following statement
is pertinent to the Commission's analysis of contributory infringement
in this investigation: ``Cresta is not accusing any cable or satellite
TV set-top boxes in this Investigation, and my infringement findings
are limited to the SoCs where Cresta has identified [an infringing]
`plurality of demodulators'. . . .'' ID at 82.
f. In connection with the Commission's analysis of invalidity of
claims 10, 12, and 13 of the '585 patent, and the asserted claims of
the '792 patent in view of Boie and VDP, please explain whether a
programmable filter meets the limitation of ``appl[ying] one of a
plurality of finite impulse response filters. . . .''
g. Should the Commission find a violation of section 337, please
explain, in view of the facts of this investigation as well as
Commission precedent concerning remedies, whether public-interest
considerations, 19 U.S.C. 1337(d)(1), (f)(1), warrant tailoring of any
remedial orders, and if so, what that tailoring should be. The parties'
discussion of the public interest considerations implicated by this
investigation should account for the ID's unreviewed determination that
Cresta failed to provide adequate evidence as to allegedly
representative products. See ID at 65-66, 78-79.
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, Comm'n Op.
(December 1994).
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
[[Page 26094]]
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. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues under review. Parties to the
investigation, interested government agencies, and any other interested
parties are encouraged to file written submissions on the issues of
remedy, the public interest, and bonding. Such submissions should
address the recommended determination by the ALJ on remedy and bonding.
The complainants and the IA are also requested to submit proposed
remedial orders for the Commission's consideration. The complainants
are also requested to state the date that the asserted 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 May 14, 2015, and should not exceed 60
pages. Reply submissions must be filed no later than the close of
business on May 23, 2015, and such replies should not exceed 40 pages.
The respondents may allocate the page limits amongst themselves as they
see fit. No further submissions on these issues will be permitted
unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to section 210.4(f) of the Commission's Rules of Practice and
Procedure (19 CFR 210.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-910'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted non-confidential version of the document must also be filed
simultaneously with the any confidential filing. All non-confidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: April 30, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-10520 Filed 5-5-15; 8:45 am]
BILLING CODE P
