Certain Network Devices, Related Software and Components Thereof (II); Commission Decision To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions, 12844-12847 [2017-04343]
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written submissions must conform with
the provisions of section 201.8 of the
Commission’s rules; any submissions
that contain BPI must also conform with
the requirements of sections 201.6,
207.3, and 207.7 of the Commission’s
rules. The Commission’s Handbook on
E-Filing, available on the Commission’s
Web site at https://www.usitc.gov/
secretary/documents/handbook_on_
filing_procedures.pdf, elaborates upon
the Commission’s rules with respect to
electronic filing.
Additional written submissions to the
Commission, including requests
pursuant to section 201.12 of the
Commission’s rules, shall not be
accepted unless good cause is shown for
accepting such submissions, or unless
the submission is pursuant to a specific
request by a Commissioner or
Commission staff.
In accordance with sections 201.16(c)
and 207.3 of the Commission’s rules,
each document filed by a party to the
reviews must be served on all other
parties to the reviews (as identified by
either the public or BPI service list), and
a certificate of service must be timely
filed. The Secretary will not accept a
document for filing without a certificate
of service.
The Commission has determined that
these reviews are extraordinarily
complicated and therefore has
determined to exercise its authority to
extend the review period by up to 90
days pursuant to 19 U.S.C.1675(c)(5)(B).
Authority: These reviews are being
conducted under authority of title VII of the
Tariff Act of 1930; this notice is published
pursuant to section 207.62 of the
Commission’s rules.
By order of the Commission.
Issued: March 2, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017–04372 Filed 3–6–17; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
sradovich on DSK3GMQ082PROD with NOTICES
[Investigation No. 337–TA–945]
Certain Network Devices, Related
Software and Components Thereof (II);
Commission Decision 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
SUMMARY:
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Commission has determined to review
in part the presiding administrative law
judge’s (‘‘ALJ’’) final initial
determination (‘‘Final ID’’) issued on
December 9, 2016, finding a violation of
section 337 of the Tariff Act of 1930, as
amended, (‘‘section 337’’) in the abovecaptioned 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 January 27, 2015, based on a
Complaint filed by Cisco Systems, Inc.
of San Jose, California (‘‘Cisco’’). 80 FR
4313–14 (Jan. 27, 2015). The Complaint
alleges violations of section 337 of the
Tariff Act of 1930, as amended, 19
U.S.C. 1337, in the sale for importation,
importation, and 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 Nos. 7,023,853; 6,377,577;
7,460,492; 7,061,875; 7,224,668; and
8,051,211. The Complaint further
alleges the existence of a domestic
industry. The Commission’s Notice of
Investigation named Arista Networks,
Inc. of Santa Clara, California (‘‘Arista’’)
as respondent. The Office of Unfair
Import Investigations (‘‘OUII’’) was also
named as a party to the investigation.
The Commission previously terminated
the investigation in part as to certain
claims of the asserted patents. Order No.
38 (Oct. 27, 2015), unreviewed Notice
(Nov. 18, 2015); Order No. 47 (Nov. 9,
2015), unreviewed Notice (Dec. 1, 2015).
On December 9, 2016, the ALJ issued
her Final ID, finding a violation of
section 337 with respect to claims 1, 7,
9, 10, and 15 of the ’577 patent; and
claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and
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64 of the ’668 patent. The ALJ found no
violation of section 337 with respect to
claim 2 of the ’577 patent; claims 46 and
63 of the ’853 patent; claims 1, 3, and
4 of the ’492 patent; claims 1–4, and 10
of the ’875 patent; and claims 2, 6, 13,
and 17 of the ’211 patent.
In particular, the Final ID finds that
Cisco has shown by a preponderance of
the evidence that the accused products
infringe asserted claims 1, 7, 9, 10, and
15 of the ’577 patent; and asserted
claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and
64 of the ’668 patent. The Final ID finds
that Cisco has failed to show by a
preponderance of the evidence that the
accused products infringe asserted
claim 2 of the ’577 patent; asserted
claims 46 and 63 of the ’853 patent;
asserted claims 1, 3, and 4 of the ’492
patent; asserted claims 1–4, and 10 of
the ’875 patent; and asserted claims 2,
6, 13, and 17 of the ’211 patent.
The Final ID also finds that assignor
estoppel bars Arista from asserting that
the ’577 and ’853 patents are invalid.
The Final ID finds, however, that if
assignor estoppel did not apply, Arista
has shown by clear and convincing
evidence that claims 1, 7, 9, 10, and 15
of the ’577 patent and claim 46 of the
’853 patent are invalid as anticipated by
U.S. Patent No. 5,920,886
(‘‘Feldmeier’’). The Final ID further
finds that Arista has failed to show by
clear and convincing evidence that any
of the remaining asserted claims are
invalid. The Final ID also finds that
Arista has not proven by clear and
convincing evidence that Cisco’s patent
claims are barred by equitable estoppel,
waiver, implied license, laches, unclean
hands, or patent misuse.
The Final ID finds that Cisco has
satisfied the economic prong of the
domestic industry requirement for all of
the patents-in-suit pursuant to 19 U.S.C.
337(A), (B), and (C). The Final ID finds,
however, that Cisco has failed to satisfy
the technical prong of the domestic
industry requirement with respect to the
’875, ’492, and ’211 patents. The Final
ID finds that Cisco has satisfied the
technical prong with respect to the ’577,
’853, and ’668 patents.
The Final ID also contains the ALJ’s
recommended determination on remedy
and bonding. The ALJ recommended
that the appropriate remedy is a limited
exclusion order with a certification
provision and a cease and desist order
against Arista. The ALJ recommended
the imposition of a bond of 5% during
the period of Presidential review.
On December 29, 2016, Cisco, Arista,
and OUII each filed petitions for review
of various aspects of the Final ID. As
described below, some of the issues
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presented for review were in the form of
contingent petitions.
Cisco petitions for review of the Final
ID’s construction of certain limitations
recited in claim 46 of the ’853 patent
and the resulting finding that Arista’s
accused products do not infringe that
claim. Cisco also petitions for review of
the Final ID’s findings of noninfringement and non-satisfaction of the
technical prong of the domestic industry
requirement with respect to the ’875,
’492, and ’211 patents. Cisco requests
contingent review of the Final ID’s
finding that Arista does not indirectly
infringe the asserted claims of the ’577
patent should the Commission review
the Final ID’s finding that Arista’s postimportation direct infringement cannot
alone support a finding of violation of
section 337. Cisco also requests
contingent review of the Final ID’s
finding that Feldmeier anticipates the
asserted claims of the ’577 patent
should the Commission review the Final
ID’s finding that assignor estoppel
applies.
Arista petitions for review of the Final
ID’s construction of certain limitations
recited in the asserted claims of the ’577
and ’668 patents and the resulting
finding that certain of Arista’s accused
products infringe those claims. Arista
also petitions for review of the Final
ID’s findings of indirect infringement
with respect to the ’577 and ’668
patents. Arista further petitions for
review of the Final ID’s finding that
assignor estoppel precludes Arista from
challenging the validity of the ’577 and
’853 patents. Arista requests contingent
review of the Final ID’s finding that
claim 46 of the ’853 patent is invalid as
anticipated and indefinite should the
Commission review the ALJ’s noninfringement findings with respect to
that claim. Arista also requests
contingent review of the issue of
indirect infringement regarding the ’853,
’211, ’875, and ’492 patents should the
Commission review the Final ID’s
findings of no direct infringement with
respect to those patents.
OUII petitions for review of the Final
ID’s finding that the ‘‘configurable PiP
CoPP’’ implementation in Arista’s
accused products infringes the asserted
claims of the ’668 patent. OUII also
petitions for review of the Final ID’s
reliance on the Patent Trial and Appeal
Board decision in finding that claims 1
and 12 of the ’211 patent are invalid as
anticipated. OUII requests contingent
review of the Final ID’s finding that
Feldmeier anticipates the asserted
claims of the ’577 patent should the
Commission review the Final ID’s
finding that assignor estoppel applies.
OUII further requests contingent review
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of the Final ID’s construction of certain
means-plus-functions claims recited in
claim 46 of the ’853 patent should the
Commission review the Final ID’s
finding that the accused products do not
infringe that claim.
On January 10, 2017, Cisco, Arista,
and OUII filed responses to the various
petitions for review.
On January 11, 2017, Cisco and Arista
each filed a post-RD statement on the
public interest pursuant to Commission
Rule 210.50(a)(4). No responses were
filed by the public in response to the
post-RD Commission Notice issued on
December 20, 2016. See Notice of
Request for Statements on the Public
Interest (Dec. 20, 2016); 81 FR 95194–
95 (Dec. 27, 2016).
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 in part.
With respect to the ’577 patent, the
Commission has determined to review
the Final ID’s finding that Arista has
indirectly infringed the ’577 patent by
importing Imported Components, as
referenced at page 110 in the Final ID.
The Commission has also determined to
review the Final ID’s finding that
Arista’s post-importation direct
infringement cannot alone support a
finding of violation of section 337. The
Commission has further determined to
review the Final ID’s finding that
Feldmeier anticipates claims 1, 7, 9, 10,
and 15 of the ’577 patent.
With respect to the ’853 patent, the
Commission has determined to review
the Final ID’s claim construction
findings with respect to claim elements
(c), (d), and (f) of claim 46. The
Commission has also determined to
review the Final ID’s findings
concerning direct and indirect
infringement regarding the ’853 patent.
The Commission has further determined
to review the Final ID’s finding that
assignor estoppel applies to validity
challenges based on indefiniteness. The
Commission has also determined to
review the Final ID’s finding that
Feldmeier does not anticipate claim 46.
With respect to the ’875 and ’492
patents, the Commission has
determined to review the Final ID’s
finding of no direct infringement and
the related finding of no indirect
infringement. The Commission has also
determined to review the Final ID’s
finding that Cisco has failed to satisfy
the technical prong of the domestic
industry requirement with respect to the
’875 and ’492 patents.
With respect to the ’668 patent, the
Commission has determined to review
the Final ID’s finding of direct
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12845
infringement and the Final ID’s finding
of indirect infringement, in particular as
concerns Arista’s importation of
Imported Components.
With respect to the ’211 patent, the
Commission has determined to review
the Final ID’s finding that Cisco has
failed to satisfy the technical prong with
respect to claims 1 and 12 of the ’211
patent, including the Final ID’s finding
that claims 1 and 12 are invalid.
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. Discuss the relevant case law
regarding the requirement, pursuant to
35 U.S.C. 271(c), that to be found liable
for contributory infringement, the
accused infringer must import into the
United States or sell within the United
State a device that constitutes a
‘‘material part of the invention.’’ In
addition, please address whether the
Imported Components satisfy this
requirement with respect to the ’577,
’853, and ’668 patents. Please cite to and
discuss any relevant evidence in the
record.
2. Please address whether the
Accused ACL Products infringe asserted
claim 46 of the ’853 patent if the 35
U.S.C. 112, ¶ 6 (means-plus-function)
limitation ‘‘means for matching
matchable information, said matchable
information being responsive to said
packet label, with said set of access
control patterns in parallel’’ is
construed to require as the
corresponding structure an access
control memory, including one or more
content-addressable memory units of
the type shown in Figure 2 of the ’853
patent.
3. Please address whether the
Accused ACL Products infringe asserted
claim 46 of the ’853 patent if the 35
U.S.C. 112, ¶ 6 (means-plus-function)
limitation ‘‘means for generating a set of
matches in response thereto, each said
match having priority information
associated therewith’’ is construed to
require as the corresponding structure
an access control memory, including
one or more content-addressable
memory units of the type shown in
Figure 2 of the ’853 patent.
4. Please address whether the
Accused ACL Products with the Petra
chip infringe asserted claim 46 of the
’853 patent, in particular with respect to
the 35 U.S.C. 112, ¶ 6 (means-plusfunction) limitation ‘‘means for
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selecting at least one of said matches in
response to said priority information,
and generating an access result in
response to said at least one selected
match.’’
5. Regarding the 35 U.S.C. 112, ¶ 6
(means-plus-function) limitation
‘‘means for making a routing decision in
response to said access result’’ recited in
asserted claim 46 of the ’853 patent,
please address whether any
corresponding structure disclosed in the
specification of the ’853 patent satisfies
the claimed function, other than the
structure recited in the Final ID’s claim
construction or the structures
previously proposed by the parties.
6. With reference to question five,
please address whether the Accused
ACL Products infringe claim 46 of the
’853 patent under the proper
construction of the 35 U.S.C. 112, ¶ 6
(means-plus-function) limitation
‘‘means for making a routing decision in
response to said access result.’’
7. Please address whether the
Accused Loop Guard Products and the
DI Loop Guard Products practice the
limitation ‘‘including a discarding state’’
recited in claims 1 and 10 of the ’875
patent and/or the limitation ‘‘including
a discarding port state’’ recited in claim
1 of the ’492 patent under the ALJ’s
claim construction of ‘‘discarding [port]
state,’’ which requires ‘‘a port state in a
spanning tree protocol or algorithm in
which data frames are neither forwarded
to nor received from the port.’’ Please
cite to and discuss any relevant
evidence in the record.
8. Please address whether the
Accused Loop Guard Products and the
DI Loop Guard Products practice the
limitation ‘‘including . . . a listening
state’’ recited in claims 1 and 10 of the
’875 patent and/or the limitation
‘‘including . . . a listening [port] state’’
recited in claim 1 of the ’492 patent. In
particular, please discuss the disclosure
in exhibit CX–0653 at pages 63, 66, and
67. In addition, please cite to and
discuss any other relevant evidence in
the record.
9. With respect to the ’668 patent,
please address whether the Pip CoPP
feature in the ’668 Accused Products is
a physical port service. In particular,
please address the significance of the
ALJ’s finding on page 196 of the Final
ID. In addition, please cite to and
discuss any relevant evidence in the
record.
The parties have been invited to brief
only these discrete issues, as
enumerated above, with reference to the
applicable law and evidentiary record.
The parties are not to brief other issues
on review, which are adequately
presented in the parties’ existing filings.
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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 the Office of
Unfair Import Investigations, are
requested to file written submissions on
the issues identified in this notice.
Parties to the investigation, including
the Office of Unfair Import
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Investigations, 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
and the Office of Unfair Import
Investigations are also requested to
submit proposed remedial orders for the
Commission’s consideration.
Complainant is further requested to
state the dates that the patents expire,
the HTSUS numbers under which the
accused products are imported, and any
known importers of the accused
products. The written submissions and
proposed remedial orders must be filed
no later than close of business on March
15, 2017. Initial submissions are limited
to 50 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 March 24, 2017.
Reply submissions are limited to 25
pages, not including any attachments or
exhibits related to discussion of remedy,
the public interest, and bonding. 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–945’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.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. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this Investigation may be
disclosed to and used: (i) By the
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Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel,1 solely for cybersecurity
purposes. 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: March 1, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017–04343 Filed 3–6–17; 8:45 am]
BILLING CODE 7020–02–P
JUDICIAL CONFERENCE OF THE
UNITED STATES
Meeting of the Judicial Conference
Advisory; Committee on Rules of
Criminal Procedure
Advisory Committee on Rules
of Criminal Procedure, Judicial
Conference of the United States.
ACTION: Notice of open meeting.
AGENCY:
The Advisory Committee on
Rules of Criminal Procedure will hold a
meeting on April 28, 2017. The meeting
will be open to public observation but
not participation. An agenda and
supporting materials will be posted at
least 7 days in advance of the meeting
at: https://www.uscourts.gov/rulespolicies/records-and-archives-rulescommittees/agenda-books.
DATES: April 28, 2017 from 8:30 a.m.–
5:30 p.m.
ADDRESSES: Thurgood Marshall Federal
Judiciary Building, Mecham Conference
Center, Administrative Office of the
United States Courts, One Columbus
Circle NE., Washington, DC 20544.
FOR FURTHER INFORMATION CONTACT:
Rebecca A. Womeldorf, Rules
Committee Secretary, Rules Committee
Support Office, Administrative Office of
the United States Courts, Washington,
DC 20544, telephone (202) 502–1820.
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SUMMARY:
1 All contract personnel will sign appropriate
nondisclosure agreements.
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Dated: February 27, 2017.
Rebecca A. Womeldorf,
Rules Committee Secretary.
[FR Doc. 2017–04322 Filed 3–6–17; 8:45 am]
BILLING CODE 2210–55–P
JUDICIAL CONFERENCE OF THE
UNITED STATES
Meeting of the Judicial Conference
Advisory; Committee on Rules of Civil
Procedure
Advisory Committee on Rules
of Civil Procedure, Judicial Conference
of the United States.
ACTION: Notice of open meeting.
AGENCY:
The Advisory Committee on
Rules of Civil Procedure will hold a
meeting on April 25–26, 2017. The
meeting will be open to public
observation but not participation. An
agenda and supporting materials will be
posted at least 7 days in advance of the
meeting at: https://www.uscourts.gov/
rules-policies/records-and-archivesrules-committees/agenda-books.
DATES:
April 25–9:00 a.m. to 5:00 p.m.
April 26–9:00 a.m. to 12:00 p.m.
ADDRESSES: Hotel Ella, 1900 Rio Grande,
Austin, Texas 78705.
FOR FURTHER INFORMATION CONTACT:
Rebecca A. Womeldorf, Rules
Committee Secretary, Rules Committee
Support Office, Administrative Office of
the United States Courts, Washington,
DC 20544, telephone (202) 502–1820.
SUMMARY:
Dated: February 28, 2017.
Rebecca A. Womeldorf,
Rules Committee Secretary.
BILLING CODE 2210–55–P
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Pistoia Alliance, Inc.
Notice is hereby given that, on
February 3, 2017, pursuant to Section
6(a) of the National Cooperative
Research and Production Act of 1993,
15 U.S.C. 4301 et seq. (‘‘the Act’’),
Pistoia Alliance, Inc. has filed written
notifications simultaneously with the
Attorney General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
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Patricia A. Brink,
Director of Civil Enforcement, Antitrust
Division.
[FR Doc. 2017–04362 Filed 3–6–17; 8:45 am]
BILLING CODE 4410–11–P
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Medical CBRN Defense
Consortium
DEPARTMENT OF JUSTICE
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under specified circumstances.
Specifically, Odysseus Data Services
Inc., Cambridge, MA; Mike Furness
(individual member), Ely,
Cambridgeshire, United Kingdom; and
Copyright Clearance Center, Danvers,
MA, have been added as parties to this
venture.
Also, Sanofi, Frankfurt, Germany;
BioReference Laboratories, Elmwood
Park, NJ; BioVariance GmbH, Munich,
Germany; and UCB Pharma SA,
Brussels, Belgium, have withdrawn as
parties to this venture.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and Pistoia
Alliance, Inc. intends to file additional
written notifications disclosing all
changes in membership.
On May 28, 2009, Pistoia Alliance,
Inc. filed its original notification
pursuant to Section 6(a) of the Act. The
Department of Justice published a notice
in the Federal Register pursuant to
Section 6(b) of the Act on July 15, 2009
(74 FR 34364).
The last notification was filed with
the Department on November 14, 2016.
A notice was published in the Federal
Register pursuant to Section 6(b) of the
Act on December 13, 2016 (81 FR
89992).
DEPARTMENT OF JUSTICE
[FR Doc. 2017–04320 Filed 3–6–17; 8:45 am]
PO 00000
12847
Notice is hereby given that, on
February 3, 2017, pursuant to Section
6(a) of the National Cooperative
Research and Production Act of 1993,
15 U.S.C. 4301 et seq. (‘‘the Act’’),
Medical CBRN Defense Consortium
(‘‘MCDC’’) has filed written notifications
simultaneously with the Attorney
General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, Biologics Modular,
Brownsburg, IN; DynPort Vaccine
Company, LLC, a CSRA Company,
E:\FR\FM\07MRN1.SGM
07MRN1
]]>Agencies
[Federal Register Volume 82, Number 43 (Tuesday, March 7, 2017)]
[Notices]
[Pages 12844-12847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04343]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-945]
Certain Network Devices, Related Software and Components Thereof
(II); Commission Decision 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.
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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 December 9, 2016, finding a violation of
section 337 of the Tariff Act of 1930, as amended, (``section 337'') 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 January 27, 2015, based on a Complaint filed by Cisco Systems, Inc.
of San Jose, California (``Cisco''). 80 FR 4313-14 (Jan. 27, 2015). The
Complaint alleges violations of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, in the sale for importation, importation,
and 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 Nos. 7,023,853;
6,377,577; 7,460,492; 7,061,875; 7,224,668; and 8,051,211. The
Complaint further alleges the existence of a domestic industry. The
Commission's Notice of Investigation named Arista Networks, Inc. of
Santa Clara, California (``Arista'') as respondent. The Office of
Unfair Import Investigations (``OUII'') was also named as a party to
the investigation. The Commission previously terminated the
investigation in part as to certain claims of the asserted patents.
Order No. 38 (Oct. 27, 2015), unreviewed Notice (Nov. 18, 2015); Order
No. 47 (Nov. 9, 2015), unreviewed Notice (Dec. 1, 2015).
On December 9, 2016, the ALJ issued her Final ID, finding a
violation of section 337 with respect to claims 1, 7, 9, 10, and 15 of
the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of
the '668 patent. The ALJ found no violation of section 337 with respect
to claim 2 of the '577 patent; claims 46 and 63 of the '853 patent;
claims 1, 3, and 4 of the '492 patent; claims 1-4, and 10 of the '875
patent; and claims 2, 6, 13, and 17 of the '211 patent.
In particular, the Final ID finds that Cisco has shown by a
preponderance of the evidence that the accused products infringe
asserted claims 1, 7, 9, 10, and 15 of the '577 patent; and asserted
claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of the '668 patent. The
Final ID finds that Cisco has failed to show by a preponderance of the
evidence that the accused products infringe asserted claim 2 of the
'577 patent; asserted claims 46 and 63 of the '853 patent; asserted
claims 1, 3, and 4 of the '492 patent; asserted claims 1-4, and 10 of
the '875 patent; and asserted claims 2, 6, 13, and 17 of the '211
patent.
The Final ID also finds that assignor estoppel bars Arista from
asserting that the '577 and '853 patents are invalid. The Final ID
finds, however, that if assignor estoppel did not apply, Arista has
shown by clear and convincing evidence that claims 1, 7, 9, 10, and 15
of the '577 patent and claim 46 of the '853 patent are invalid as
anticipated by U.S. Patent No. 5,920,886 (``Feldmeier''). The Final ID
further finds that Arista has failed to show by clear and convincing
evidence that any of the remaining asserted claims are invalid. The
Final ID also finds that Arista has not proven by clear and convincing
evidence that Cisco's patent claims are barred by equitable estoppel,
waiver, implied license, laches, unclean hands, or patent misuse.
The Final ID finds that Cisco has satisfied the economic prong of
the domestic industry requirement for all of the patents-in-suit
pursuant to 19 U.S.C. 337(A), (B), and (C). The Final ID finds,
however, that Cisco has failed to satisfy the technical prong of the
domestic industry requirement with respect to the '875, '492, and '211
patents. The Final ID finds that Cisco has satisfied the technical
prong with respect to the '577, '853, and '668 patents.
The Final ID also contains the ALJ's recommended determination on
remedy and bonding. The ALJ recommended that the appropriate remedy is
a limited exclusion order with a certification provision and a cease
and desist order against Arista. The ALJ recommended the imposition of
a bond of 5% during the period of Presidential review.
On December 29, 2016, Cisco, Arista, and OUII each filed petitions
for review of various aspects of the Final ID. As described below, some
of the issues
[[Page 12845]]
presented for review were in the form of contingent petitions.
Cisco petitions for review of the Final ID's construction of
certain limitations recited in claim 46 of the '853 patent and the
resulting finding that Arista's accused products do not infringe that
claim. Cisco also petitions for review of the Final ID's findings of
non-infringement and non-satisfaction of the technical prong of the
domestic industry requirement with respect to the '875, '492, and '211
patents. Cisco requests contingent review of the Final ID's finding
that Arista does not indirectly infringe the asserted claims of the
'577 patent should the Commission review the Final ID's finding that
Arista's post-importation direct infringement cannot alone support a
finding of violation of section 337. Cisco also requests contingent
review of the Final ID's finding that Feldmeier anticipates the
asserted claims of the '577 patent should the Commission review the
Final ID's finding that assignor estoppel applies.
Arista petitions for review of the Final ID's construction of
certain limitations recited in the asserted claims of the '577 and '668
patents and the resulting finding that certain of Arista's accused
products infringe those claims. Arista also petitions for review of the
Final ID's findings of indirect infringement with respect to the '577
and '668 patents. Arista further petitions for review of the Final ID's
finding that assignor estoppel precludes Arista from challenging the
validity of the '577 and '853 patents. Arista requests contingent
review of the Final ID's finding that claim 46 of the '853 patent is
invalid as anticipated and indefinite should the Commission review the
ALJ's non-infringement findings with respect to that claim. Arista also
requests contingent review of the issue of indirect infringement
regarding the '853, '211, '875, and '492 patents should the Commission
review the Final ID's findings of no direct infringement with respect
to those patents.
OUII petitions for review of the Final ID's finding that the
``configurable PiP CoPP'' implementation in Arista's accused products
infringes the asserted claims of the '668 patent. OUII also petitions
for review of the Final ID's reliance on the Patent Trial and Appeal
Board decision in finding that claims 1 and 12 of the '211 patent are
invalid as anticipated. OUII requests contingent review of the Final
ID's finding that Feldmeier anticipates the asserted claims of the '577
patent should the Commission review the Final ID's finding that
assignor estoppel applies. OUII further requests contingent review of
the Final ID's construction of certain means-plus-functions claims
recited in claim 46 of the '853 patent should the Commission review the
Final ID's finding that the accused products do not infringe that
claim.
On January 10, 2017, Cisco, Arista, and OUII filed responses to the
various petitions for review.
On January 11, 2017, Cisco and Arista each filed a post-RD
statement on the public interest pursuant to Commission Rule
210.50(a)(4). No responses were filed by the public in response to the
post-RD Commission Notice issued on December 20, 2016. See Notice of
Request for Statements on the Public Interest (Dec. 20, 2016); 81 FR
95194-95 (Dec. 27, 2016).
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 in part.
With respect to the '577 patent, the Commission has determined to
review the Final ID's finding that Arista has indirectly infringed the
'577 patent by importing Imported Components, as referenced at page 110
in the Final ID. The Commission has also determined to review the Final
ID's finding that Arista's post-importation direct infringement cannot
alone support a finding of violation of section 337. The Commission has
further determined to review the Final ID's finding that Feldmeier
anticipates claims 1, 7, 9, 10, and 15 of the '577 patent.
With respect to the '853 patent, the Commission has determined to
review the Final ID's claim construction findings with respect to claim
elements (c), (d), and (f) of claim 46. The Commission has also
determined to review the Final ID's findings concerning direct and
indirect infringement regarding the '853 patent. The Commission has
further determined to review the Final ID's finding that assignor
estoppel applies to validity challenges based on indefiniteness. The
Commission has also determined to review the Final ID's finding that
Feldmeier does not anticipate claim 46.
With respect to the '875 and '492 patents, the Commission has
determined to review the Final ID's finding of no direct infringement
and the related finding of no indirect infringement. The Commission has
also determined to review the Final ID's finding that Cisco has failed
to satisfy the technical prong of the domestic industry requirement
with respect to the '875 and '492 patents.
With respect to the '668 patent, the Commission has determined to
review the Final ID's finding of direct infringement and the Final ID's
finding of indirect infringement, in particular as concerns Arista's
importation of Imported Components.
With respect to the '211 patent, the Commission has determined to
review the Final ID's finding that Cisco has failed to satisfy the
technical prong with respect to claims 1 and 12 of the '211 patent,
including the Final ID's finding that claims 1 and 12 are invalid.
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. Discuss the relevant case law regarding the requirement,
pursuant to 35 U.S.C. 271(c), that to be found liable for contributory
infringement, the accused infringer must import into the United States
or sell within the United State a device that constitutes a ``material
part of the invention.'' In addition, please address whether the
Imported Components satisfy this requirement with respect to the '577,
'853, and '668 patents. Please cite to and discuss any relevant
evidence in the record.
2. Please address whether the Accused ACL Products infringe
asserted claim 46 of the '853 patent if the 35 U.S.C. 112, ] 6 (means-
plus-function) limitation ``means for matching matchable information,
said matchable information being responsive to said packet label, with
said set of access control patterns in parallel'' is construed to
require as the corresponding structure an access control memory,
including one or more content-addressable memory units of the type
shown in Figure 2 of the '853 patent.
3. Please address whether the Accused ACL Products infringe
asserted claim 46 of the '853 patent if the 35 U.S.C. 112, ] 6 (means-
plus-function) limitation ``means for generating a set of matches in
response thereto, each said match having priority information
associated therewith'' is construed to require as the corresponding
structure an access control memory, including one or more content-
addressable memory units of the type shown in Figure 2 of the '853
patent.
4. Please address whether the Accused ACL Products with the Petra
chip infringe asserted claim 46 of the '853 patent, in particular with
respect to the 35 U.S.C. 112, ] 6 (means-plus-function) limitation
``means for
[[Page 12846]]
selecting at least one of said matches in response to said priority
information, and generating an access result in response to said at
least one selected match.''
5. Regarding the 35 U.S.C. 112, ] 6 (means-plus-function)
limitation ``means for making a routing decision in response to said
access result'' recited in asserted claim 46 of the '853 patent, please
address whether any corresponding structure disclosed in the
specification of the '853 patent satisfies the claimed function, other
than the structure recited in the Final ID's claim construction or the
structures previously proposed by the parties.
6. With reference to question five, please address whether the
Accused ACL Products infringe claim 46 of the '853 patent under the
proper construction of the 35 U.S.C. 112, ] 6 (means-plus-function)
limitation ``means for making a routing decision in response to said
access result.''
7. Please address whether the Accused Loop Guard Products and the
DI Loop Guard Products practice the limitation ``including a discarding
state'' recited in claims 1 and 10 of the '875 patent and/or the
limitation ``including a discarding port state'' recited in claim 1 of
the '492 patent under the ALJ's claim construction of ``discarding
[port] state,'' which requires ``a port state in a spanning tree
protocol or algorithm in which data frames are neither forwarded to nor
received from the port.'' Please cite to and discuss any relevant
evidence in the record.
8. Please address whether the Accused Loop Guard Products and the
DI Loop Guard Products practice the limitation ``including . . . a
listening state'' recited in claims 1 and 10 of the '875 patent and/or
the limitation ``including . . . a listening [port] state'' recited in
claim 1 of the '492 patent. In particular, please discuss the
disclosure in exhibit CX-0653 at pages 63, 66, and 67. In addition,
please cite to and discuss any other relevant evidence in the record.
9. With respect to the '668 patent, please address whether the Pip
CoPP feature in the '668 Accused Products is a physical port service.
In particular, please address the significance of the ALJ's finding on
page 196 of the Final ID. In addition, please cite to and discuss any
relevant evidence in the record.
The parties have been invited to brief only these discrete issues,
as enumerated above, with reference to the applicable law and
evidentiary record. The parties are not to brief other issues on
review, which are adequately presented in the parties' existing
filings.
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
the Office of Unfair Import Investigations, are requested to file
written submissions on the issues identified in this notice. Parties to
the investigation, including the Office of Unfair Import
Investigations, 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 and the Office of Unfair Import Investigations are
also requested to submit proposed remedial orders for the Commission's
consideration. Complainant is further requested to state the dates that
the patents expire, the HTSUS numbers under which the accused products
are imported, and any known importers of the accused products. The
written submissions and proposed remedial orders must be filed no later
than close of business on March 15, 2017. Initial submissions are
limited to 50 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 March 24, 2017. Reply
submissions are limited to 25 pages, not including any attachments or
exhibits related to discussion of remedy, the public interest, and
bonding. 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-945'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.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. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the
[[Page 12847]]
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel,\1\ solely for cybersecurity purposes.
All nonconfidential written submissions will be available for public
inspection at the Office of the Secretary and on EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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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: March 1, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-04343 Filed 3-6-17; 8:45 am]
BILLING CODE 7020-02-P
