Certain Network Devices, Related Software and Components Thereof (I); Commission's Determination To Review In-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions, 22312-22314 [2016-08680]
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Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices
asabaliauskas on DSK3SPTVN1PROD with NOTICES
provided in section 207.24 of the
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briefs, which must conform with the
provisions of section 207.25 of the
Commission’s rules. The deadline for
filing posthearing briefs is August 11,
2016. In addition, any person who has
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the subject of the investigations,
including statements of support or
opposition to the petition, on or before
August 11, 2016. On August 29, 2016,
the Commission will make available to
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have not had an opportunity to
comment. Parties may submit final
comments on this information on or
before August 31, 2016, but such final
comments must not contain new factual
information and must otherwise comply
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edis.usitc.gov, elaborates upon the
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pursuant to section 201.12 of the
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Authority: These investigations are being
conducted under authority of title VII of the
Tariff Act of 1930; this notice is published
pursuant to section 207.21 of the
Commission’s rules.
By order of the Commission.
Issued: April 11, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016–08650 Filed 4–14–16; 8:45 am]
BILLING CODE 7020–02–P
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INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–944]
Certain Network Devices, Related
Software and Components Thereof (I);
Commission’s Determination To
Review In-Part a Final Initial
Determination Finding a Violation of
Section 337; Request for 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
(‘‘ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’) on
February 2, 2016, finding a violation of
section 337 of the Tariff Act of 1930, 19
U.S.C. 1337, in the above-captioned
investigation.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Amanda Pitcher Fisherow, Esq., Office
of the General Counsel, U.S.
International Trade Commission, 500 E
Street SW., Washington, DC 20436,
telephone (202) 205–2737. 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 January 27, 2015, based on a
complaint filed on behalf of Cisco
Systems, Inc. (‘‘Complainant’’) of San
Jose, California. 80 FR 4314–15 (Jan. 27,
2015). The complaint was filed on
December 19, 2014 and a supplement
was filed on January 8, 2015. The
complaint alleges violations of section
337 based upon the importation into the
United States, the sale for importation,
and the sale within the United States
after importation of certain network
devices, related software and
components thereof by reason of
infringement of certain claims of U.S.
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Patent No. 7,162,537 (‘‘the ’537 patent’’);
U.S. Patent No. 8,356,296 (‘‘the ’296
patent’’); U.S. Patent No. 7,290,164 (‘‘the
’164 patent’’); U.S. Patent No. 7,340,597
(‘‘the ’597 patent’’); U.S. Patent No.
6,741,592 (‘‘the ’592 patent’’); and U.S.
Patent No. 7,200,145 (‘‘the ’145 patent’’),
and alleges that an industry in the
United States exists as required by
subsection (a)(2) of section 337. The
’296 patent was previously terminated
from the investigation. A Commission
investigative attorney (‘‘IA’’) is
participating in the investigation.
On February 2, 2016, the ALJ issued
his final ID finding a violation of section
337. The ID found a violation with
respect to the ’537, ’592 and ’145
patents. The ID found no violation for
the ’597 and ’164 patents. On February
11, 2016, the ALJ issued his
Recommended Determination on
Remedy and Bonding (‘‘RD’’).
On February 17, 2016, Cisco and
Arista filed petitions for review. On
March 3, 2016, the parties, including the
IA, filed responses to the respective
petitions for review.
Having examined the record of this
investigation, including the final ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the final ID on the following
issues: (1) Infringement of the ’537, ’597,
’592 and ’145 patents; (2) patentability
of the ’597, ’592, and ’145 patents under
35 U.S.C. 101; (3) the construction of
‘‘said router configuration data managed
by said database system and derived
from configuration commands supplied
by a user and executed by a router
configuration subsystem before being
stored in said database’’ of claims 1, 10,
and 19 of the ’537 patent; (4) the
construction of ‘‘a change to a
configuration’’/‘‘a change in
configuration’’ of claims 1, 39, and 71 of
the ’597 patent; (5) equitable estoppel;
(6) laches; (7) the technical prong of
domestic industry for the ’537, ’597,
’592 and ’145 patents; (8) economic
prong of domestic industry; and (9)
importation. To the extent any findings
that the Commission is reviewing herein
implicates the ID’s findings for the ’164
patent (e.g., intent to induce
infringement), the Commission reviews
those findings for the ’164 patent.
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
interested in only responses to the
following questions. For each argument
presented, the parties’ submissions
should set forth whether such argument
was presented to the ALJ and if so
include citations to the record.
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Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices
1. Please provide a chart identifying for
each asserted claim of the ’537, ’597, ’592
and ’145 patents: (1) The basis for Cisco’s
infringement allegation (i.e., direct
infringement, contributory infringement,
and/or induced infringement); (2)
identification and description of each
accused product [[
]].
2. If the Commission were to reverse the
ID’s finding [[
]]?
3. Did Arista waive its argument that it had
a good-faith basis for its belief of
noninfringement by failing to present the
argument to the ALJ? See Arista Pet. at 33;
Cisco Reply at 36. If not, did Arista
demonstrate a good-faith belief of
noninfringement?
4. [[
]]?
5. Can evidence of [[
]]
establish intent to indirectly infringe? Please
discuss relevant case law pertaining to
specific intent [[
]].
6. [[
]].
7. [[
]].
8. Please discuss the relevant case law
pertaining to whether [[
]]
is ‘‘material’’ to establish contributory
infringement for the ’537, ’592 and ’145
patents. See e.g., Arista Pet. at 39–42, 67.
9. Please discuss and cite any record
evidence that demonstrates when Cisco came
into possession of RX–2964C, CX–0479, and
RX–4007C. [[
]]?
10. Please discuss whether the ‘‘materially
prejudiced’’ requirement has been satisfied
here for purposes of laches and equitable
estoppel. In responding to this question,
please address the prejudice demonstrated
for each of the ’537, ’592, and ’145 patents
independently and discuss the relevant case
law in your response.
11. Please discuss whether laches should
be an available defense in a Section 337
investigation. In your response, please
address how SCA Hygiene Products v. First
Quality Baby Prod., 807 F.3d 1311 (Fed. Cir.
2015) applies and any statutory support for
your position.
12. Does the ID’s construction of ‘‘a change
to a configuration’’/ ‘‘a change in
configuration’’ in the asserted claims of the
‘537 patent to mean ‘‘a change to the state of
the device’’ read out the phrase ‘‘of the
subsystem’’ from the claims? Does this
construction require that the change in state
be to the subsystem or the device as a whole?
13. Please discuss whether anything in the
specification, prosecution history or claims
limit what constitutes ‘‘changes’’ in the ‘‘a
change to a configuration’’/ ‘‘a change in
configuration’’ limitations of the asserted
claims of the ’597 patent. Please also address,
if the Commission were to adopt the
construction proposed by Arista, what would
constitute a ‘‘change’’?
14. Is the determination by [[
that would meet the ‘‘detect a change to a
configuration of said subsystem’’/ ‘‘detect/
[ing] a change in a configuration of a
subsystem’’ limitations of the asserted claims
of the ’597 patent under the ID’s
construction?
15. Discuss whether the accused products
meet the limitations of ‘‘detect a change to a
configuration of said subsystem’’/ ‘‘detect/
[ing] a change in a configuration of a
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subsystem’’ limitations of the asserted
claims. Please address (1) the ID’s
construction, which requires detecting ‘‘a
change to the state of the device’’, and (2) a
construction that requires detecting a
‘‘change to the state’’ of the subsystem. See
e.g., Arista Pet. at 85.
16. With respect to the public interest
factors, please discuss the facts in the record
pertaining to the following: (1) Whether RFC
5517 is a de facto industry standard; (2)
whether the ’592 and ’145 patents are
essential to an industry standard; (3) whether
licensing obligations apply to RFC 5517; (4)
whether Cisco complied with any licensing
obligations with respect to an industry
standard; and (5) whether patent hold-up
and/or patent hold-out have been
demonstrated in the record of this
investigation. See Respondent Arista’s Public
Interest Submission Under 210.50(a) at 4–5
(March 17, 2016). Provide an analysis as to
how these issues relate to the statutory public
interest factors of Section § 337(d) and (f), 19
U.S.C. 1337(d), (f).
17. For purposes of the analysis of the
statutory public interest factors, describe in
detail the specific course of conduct on the
part of Cisco, or other factors, that would
support a finding that F/RAND commitments
have arisen with respect to the ’592 and ’145
patents here. How does the RFC 5517
document factor into the analysis since it
specifically states that what is described with
respect to the ’592 and ’145 patents is not a
standard? Arista argues that Cisco ‘‘never
offered Arista a chance to license this de
facto standard used by Cisco’s other
networking competitors.’’ Respondent
Arista’s Public Interest Submission Under
210.50(a) at 5. Describe in detail any attempts
that Arista made to license the ’592 and ’145
patents from Cisco. Please describe Cisco’s
response to these attempts.
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.
When 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
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22313
receiving written submissions that
address the aforementioned public
interest factors in the context of this
investigation.
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 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 are requested to file
written submissions on the issues
identified in this notice. Parties to the
investigation, interested government
agencies, and any other interested
persons 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
complainant and the IA are also
requested to submit proposed remedial
orders for the Commission’s
consideration.
Complainant is also requested to state
the date that the asserted patents expire
and the HTSUS numbers under which
the accused products are imported.
Complainant is further requested to
supply the names of known importers of
the products at issue in this
investigation. The written submissions
and proposed remedial orders must be
filed no later than close of business on
Monday, April 25, 2016. Reply
submissions must be filed no later than
the close of business on Thursday, May
5, 2016. No further submissions on
these issues will be permitted unless
otherwise ordered by the Commission.
The page limit for the parties’ initial
submissions is 125 pages. The parties
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Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices
reply submissions, if any, are limited to
75 pages.
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–944’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
secretary/fed_reg_notices/rules/
handbook_on_electronic_filing.pdf).
Persons with questions regarding filing
should contact the Secretary (202–205–
2000).
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
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 11, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016–08680 Filed 4–14–16; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
DEPARTMENT OF JUSTICE
By notice
dated November 27, 2015, and
published in the Federal Register on
December 3, 2015, 80 FR 75688, Mylan
Technologies, Inc., 110 Lake Street,
Saint Albans, Vermont 05478 applied to
be registered as an importer of certain
basic classes of controlled substances.
No comments or objections were
submitted for this notice.
The DEA has considered the factors in
21 U.S.C. 823, 952(a) and 958(a) and
determined that the registration of
Mylan Technologies, Inc. to import the
basic classes of controlled substances is
consistent with the public interest and
with United States obligations under
international treaties, conventions, or
protocols in effect on May 1, 1971. The
DEA investigated the company’s
maintenance of effective controls
against diversion by inspecting and
testing the company’s physical security
systems, verifying the company’s
compliance with state and local laws,
and reviewing the company’s
background and history.
Therefore, pursuant to 21 U.S.C.
952(a) and 958(a), and in accordance
with 21 CFR 1301.34, the above-named
company is granted registration as an
importer of the following basic classes
of controlled substances:
Agency Information Collection
Activities; Proposed eCollection,
eComments Requested; Extension
Without Change of a Previously
Approved Collection Reporting and
Recordkeeping for Digital Certificates
SUPPLEMENTARY INFORMATION:
Controlled substance
Methylphenidate (1724) ................
Fentanyl (9801) ............................
Schedule
II
II
The company plans to import the
listed controlled substances in finished
dosage form (FDF) from foreign sources
for analytical testing and clinical trials
in which the foreign FDF will be
compared to the company’s own
domestically-manufactured FDF. This
analysis is required to allow the
company to export domesticallymanufactured FDF to foreign markets.
Dated: April 11, 2016.
Louis J. Milione,
Deputy Assistant Administrator.
Drug Enforcement Administration
[Docket No. DEA–392]
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Administration (DEA) grants Mylan
Technologies, Inc. registration as an
importer of those controlled substances.
[FR Doc. 2016–08846 Filed 4–14–16; 8:45 am]
Importer of Controlled Substances
Registration: Mylan Technologies, Inc.
ACTION:
BILLING CODE 4410–09–P
Notice of registration.
Mylan Technologies, Inc.
applied to be registered as an importer
of certain basic classes of controlled
substances. The Drug Enforcement
SUMMARY:
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[OMB Number 1117–0038]
Drug Enforcement
Administration, Department of Justice.
ACTION: 30-Day notice.
AGENCY:
The Department of Justice
(DOJ), Drug Enforcement
Administration (DEA), will be
submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
This proposed information collection
was previously published in the Federal
Register at 81 FR 7592, on February 12,
2016, allowing for a 60 day comment
period.
SUMMARY:
Comments are encouraged and
will be accepted for an additional 30
days until May 16, 2016.
FOR FURTHER INFORMATION CONTACT: If
you have comments 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
Barbara J. Boockholdt, Office of
Diversion Control, Drug Enforcement
Administration; Mailing Address: 8701
Morrissette Drive, Springfield, Virginia
22152; Telephone: (202) 598–6812.
Written comments and/or suggestions
can also be directed to the Office of
Management and Budget, Office of
Information and Regulatory Affairs,
Attention Department of Justice Desk
Officer, Washington, DC 20503 or sent
to OIRA_submissions@omb.eop.gov.
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
are encouraged. Your comments should
address one or more of the following
four points:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
DATES:
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]]>Agencies
[Federal Register Volume 81, Number 73 (Friday, April 15, 2016)]
[Notices]
[Pages 22312-22314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08680]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-944]
Certain Network Devices, Related Software and Components Thereof
(I); Commission's Determination To Review In-Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in-part the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on February 2, 2016, finding a violation of section 337 of
the Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned
investigation.
FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Esq., Office
of the General Counsel, U.S. International Trade Commission, 500 E
Street SW., Washington, DC 20436, telephone (202) 205-2737. 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 January 27, 2015, based on a complaint filed on behalf of Cisco
Systems, Inc. (``Complainant'') of San Jose, California. 80 FR 4314-15
(Jan. 27, 2015). The complaint was filed on December 19, 2014 and a
supplement was filed on January 8, 2015. The complaint alleges
violations of section 337 based upon the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain network devices, related software and
components thereof by reason of infringement of certain claims of U.S.
Patent No. 7,162,537 (``the '537 patent''); U.S. Patent No. 8,356,296
(``the '296 patent''); U.S. Patent No. 7,290,164 (``the '164 patent'');
U.S. Patent No. 7,340,597 (``the '597 patent''); U.S. Patent No.
6,741,592 (``the '592 patent''); and U.S. Patent No. 7,200,145 (``the
'145 patent''), and alleges that an industry in the United States
exists as required by subsection (a)(2) of section 337. The '296 patent
was previously terminated from the investigation. A Commission
investigative attorney (``IA'') is participating in the investigation.
On February 2, 2016, the ALJ issued his final ID finding a
violation of section 337. The ID found a violation with respect to the
'537, '592 and '145 patents. The ID found no violation for the '597 and
'164 patents. On February 11, 2016, the ALJ issued his Recommended
Determination on Remedy and Bonding (``RD'').
On February 17, 2016, Cisco and Arista filed petitions for review.
On March 3, 2016, the parties, including the IA, filed responses to the
respective petitions for review.
Having examined the record of this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID on the following
issues: (1) Infringement of the '537, '597, '592 and '145 patents; (2)
patentability of the '597, '592, and '145 patents under 35 U.S.C. 101;
(3) the construction of ``said router configuration data managed by
said database system and derived from configuration commands supplied
by a user and executed by a router configuration subsystem before being
stored in said database'' of claims 1, 10, and 19 of the '537 patent;
(4) the construction of ``a change to a configuration''/``a change in
configuration'' of claims 1, 39, and 71 of the '597 patent; (5)
equitable estoppel; (6) laches; (7) the technical prong of domestic
industry for the '537, '597, '592 and '145 patents; (8) economic prong
of domestic industry; and (9) importation. To the extent any findings
that the Commission is reviewing herein implicates the ID's findings
for the '164 patent (e.g., intent to induce infringement), the
Commission reviews those findings for the '164 patent.
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 interested in
only responses to the following questions. For each argument presented,
the parties' submissions should set forth whether such argument was
presented to the ALJ and if so include citations to the record.
[[Page 22313]]
1. Please provide a chart identifying for each asserted claim of
the '537, '597, '592 and '145 patents: (1) The basis for Cisco's
infringement allegation (i.e., direct infringement, contributory
infringement, and/or induced infringement); (2) identification and
description of each accused product [[ ]].
2. If the Commission were to reverse the ID's finding [[ ]]?
3. Did Arista waive its argument that it had a good-faith basis
for its belief of noninfringement by failing to present the argument
to the ALJ? See Arista Pet. at 33; Cisco Reply at 36. If not, did
Arista demonstrate a good-faith belief of noninfringement?
4. [[ ]]?
5. Can evidence of [[ ]] establish intent to indirectly
infringe? Please discuss relevant case law pertaining to specific
intent [[ ]].
6. [[ ]].
7. [[ ]].
8. Please discuss the relevant case law pertaining to whether [[
]] is ``material'' to establish contributory infringement for the
'537, '592 and '145 patents. See e.g., Arista Pet. at 39-42, 67.
9. Please discuss and cite any record evidence that demonstrates
when Cisco came into possession of RX-2964C, CX-0479, and RX-4007C.
[[ ]]?
10. Please discuss whether the ``materially prejudiced''
requirement has been satisfied here for purposes of laches and
equitable estoppel. In responding to this question, please address
the prejudice demonstrated for each of the '537, '592, and '145
patents independently and discuss the relevant case law in your
response.
11. Please discuss whether laches should be an available defense
in a Section 337 investigation. In your response, please address how
SCA Hygiene Products v. First Quality Baby Prod., 807 F.3d 1311
(Fed. Cir. 2015) applies and any statutory support for your
position.
12. Does the ID's construction of ``a change to a
configuration''/ ``a change in configuration'' in the asserted
claims of the `537 patent to mean ``a change to the state of the
device'' read out the phrase ``of the subsystem'' from the claims?
Does this construction require that the change in state be to the
subsystem or the device as a whole?
13. Please discuss whether anything in the specification,
prosecution history or claims limit what constitutes ``changes'' in
the ``a change to a configuration''/ ``a change in configuration''
limitations of the asserted claims of the '597 patent. Please also
address, if the Commission were to adopt the construction proposed
by Arista, what would constitute a ``change''?
14. Is the determination by [[ ]] that would meet the ``detect a
change to a configuration of said subsystem''/ ``detect/[ing] a
change in a configuration of a subsystem'' limitations of the
asserted claims of the '597 patent under the ID's construction?
15. Discuss whether the accused products meet the limitations of
``detect a change to a configuration of said subsystem''/ ``detect/
[ing] a change in a configuration of a subsystem'' limitations of
the asserted claims. Please address (1) the ID's construction, which
requires detecting ``a change to the state of the device'', and (2)
a construction that requires detecting a ``change to the state'' of
the subsystem. See e.g., Arista Pet. at 85.
16. With respect to the public interest factors, please discuss
the facts in the record pertaining to the following: (1) Whether RFC
5517 is a de facto industry standard; (2) whether the '592 and '145
patents are essential to an industry standard; (3) whether licensing
obligations apply to RFC 5517; (4) whether Cisco complied with any
licensing obligations with respect to an industry standard; and (5)
whether patent hold-up and/or patent hold-out have been demonstrated
in the record of this investigation. See Respondent Arista's Public
Interest Submission Under 210.50(a) at 4-5 (March 17, 2016). Provide
an analysis as to how these issues relate to the statutory public
interest factors of Section Sec. 337(d) and (f), 19 U.S.C. 1337(d),
(f).
17. For purposes of the analysis of the statutory public
interest factors, describe in detail the specific course of conduct
on the part of Cisco, or other factors, that would support a finding
that F/RAND commitments have arisen with respect to the '592 and
'145 patents here. How does the RFC 5517 document factor into the
analysis since it specifically states that what is described with
respect to the '592 and '145 patents is not a standard? Arista
argues that Cisco ``never offered Arista a chance to license this de
facto standard used by Cisco's other networking competitors.''
Respondent Arista's Public Interest Submission Under 210.50(a) at 5.
Describe in detail any attempts that Arista made to license the '592
and '145 patents from Cisco. Please describe Cisco's response to
these attempts.
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. When 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 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 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 are requested
to file written submissions on the issues identified in this notice.
Parties to the investigation, interested government agencies, and any
other interested persons 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 complainant and the IA are also requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is also requested to state the date that the asserted
patents expire and the HTSUS numbers under which the accused products
are imported. Complainant is further requested to supply the names of
known importers of the products at issue in this investigation. The
written submissions and proposed remedial orders must be filed no later
than close of business on Monday, April 25, 2016. Reply submissions
must be filed no later than the close of business on Thursday, May 5,
2016. No further submissions on these issues will be permitted unless
otherwise ordered by the Commission. The page limit for the parties'
initial submissions is 125 pages. The parties
[[Page 22314]]
reply submissions, if any, are limited to 75 pages.
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-944'') 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 11, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-08680 Filed 4-14-16; 8:45 am]
BILLING CODE 7020-02-P
