Certain Magnetic Data Storage Tapes and Cartridges Containing the Same; Commission Determination To Review-in-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions; Extension of Target Date for Completion of the Investigation, 60038-60041 [2017-27168]
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Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Notices
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ONRR Information Collection
Clearance Officer: Luis Aguilar (303)
231–3418.
Authority: The authorities for this action
are the Outer Continental Shelf Lands Act
Amendments of 1978 (43 U.S.C. 1337) and
the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et. seq.).
Gregory J. Gould,
Director for Office of Natural Resources
Revenue.
[FR Doc. 2017–27204 Filed 12–15–17; 8:45 am]
BILLING CODE 4335–30–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1012]
Certain Magnetic Data Storage Tapes
and Cartridges Containing the Same;
Commission Determination To Reviewin-Part a Final Initial Determination
Finding a Violation of Section 337;
Request for Written Submissions;
Extension of Target Date for
Completion of the Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part the presiding administrative law
judge’s (‘‘ALJ’’) final initial
determination (‘‘Final ID’’) issued on
September 1, 2017, finding a violation
of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337 (‘‘section
337’’) in the above-captioned
investigation. The Commission has also
determined to extend the target date for
completion of the above-captioned
investigation to February 20, 2018.
FOR FURTHER INFORMATION CONTACT:
Megan M. Valentine, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–2301. Copies of non-confidential
documents filed in connection with this
investigation are or will be available for
inspection during official business
hours (8:45 a.m. to 5:15 p.m.) in the
Office of the Secretary, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436,
telephone (202) 205–2000. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
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SUMMARY:
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The 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 July 1, 2016, based on a Complaint
filed by Fujifilm Corporation of Tokyo,
Japan, and Fujifilm Recording Media
U.S.A., Inc. of Bedford, Massachusetts
(collectively, ‘‘Fujifilm’’). 81 FR 43243–
44 (July 1, 2016). The Complaint alleges
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337
(‘‘section 337’’), in the sale for
importation, importation, and sale
within the United States after
importation of certain magnetic data
storage tapes and cartridges containing
the same by reason of infringement of
certain claims of U.S. Patent Nos.
6,641,891 (‘‘the ’891 patent’’); 6,703,106
(‘‘the ’106 patent’’); 6,703,101 (‘‘the ’101
patent’’); 6,767,612 (‘‘the ’612 patent’’);
8,236,434 (‘‘the ’434 patent’’); and
7,355,805 (‘‘the ’805 patent’’). The
Complaint further alleges the existence
of a domestic industry. The
Commission’s Notice of Investigation
named as respondents Sony Corporation
of Tokyo, Japan, Sony Corporation of
America of New York, New York, and
Sony Electronics Inc. of San Diego,
California (collectively, ‘‘Sony’’). The
Office of Unfair Import Investigations
(‘‘OUII’’) was also named as a party to
the investigation. The Commission later
terminated the investigation as to the
’101 patent. Order No. 24 (Jan. 18,
2017); Notice (Feb. 15, 2017).
On September 1, 2017, the ALJ issued
his final ID finding a violation of section
337 with respect to claims 1, 4–9, 11,
and 14 of the ’891 patent and asserted
claims 1, 2, 4, 5, 7, and 8 of the ’612
patent. The ALJ found no violation of
section 337 with respect to asserted
claims 9–11 of the ’612 patent; asserted
claim 2, 5, and 6 of the ’106 patent;
asserted claim 1 of the ’434 patent; and
asserted claims 3 and 10 of the ’805
patent.
In particular, the Final ID finds that
Sony’s accused products infringe claims
1, 4–9, 11, and 14 of the ’891 Patent
under 35 U.S.C. 271(a). The Final ID
also finds that Fujifilm’s domestic
industry (‘‘DI’’) products practice the
asserted claims of the ’891 Patent, thus
Fujifilm has satisfied the technical
prong of the domestic industry
requirement with respect to the ’891
Patent regarding its LTO–6 and LTO–7
DI products. The Final ID finds that
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Sony has not shown that the asserted
claims of the ’891 Patent are invalid
under 35 U.S.C. 102, 103, or 112.
The Final ID finds that Sony’s
accused products infringe asserted
claims 1, 2, 4, 5, 7, and 8 of the ’612
Patent under 35 U.S.C. 271(a). The Final
ID finds, however, that Fujifilm failed to
show that Sony has induced
infringement of claims 9–11 of the ’612
Patent under 35 U.S.C. 271(b). The Final
ID further finds that Fujifilm’s DI
products practice claims 1, 2, 4, 5, and
7–11 of the ’612 Patent and, thus,
Fujifilm has satisfied the technical
prong of the domestic industry
requirement with respect to the ’612
Patent regarding its LTO–6 and LTO–7
DI products. The Final ID finds that
Sony has not shown that the asserted
claims of the ’612 Patent are invalid
under 35 U.S.C. 102, 103, or 112.
The Final ID finds that the accused
products do not infringe asserted claims
2, 5, and 6 of the ’106 Patent under 35
U.S.C. 271(a). The Final ID further finds
that neither Fujifilm’s LTO–6 nor LTO–
7 DI products practice any claim of the
’106 Patent, thus Fujifilm has failed to
satisfy the technical prong of the
domestic industry requirement with
respect to the ’106 Patent. The Final ID
also finds that Sony has not shown that
the asserted claims of the ’106 Patent are
invalid under 35 U.S.C. 102 or 103, but
has shown that the asserted claims of
the ’106 Patent are indefinite under 35
U.S.C. 112.
The Final ID finds that the accused
products do not infringe asserted claim
1 of the ’434 under 35 U.S.C. 271(a). The
Final ID further finds that Fujifilm’s
LTO–7 DI products do not practice any
claim of the ’434 Patent, thus Fujifilm
has failed to satisfy the technical prong
of the domestic industry requirement
with respect to the ’434 Patent. The
Final ID finds that Sony has not shown
that the asserted claims of the ’434
Patent are invalid under 35 U.S.C. 102,
103, or 112.
The Final ID finds the accused
products do not infringe asserted claims
3 and 10 of the ’805 Patent under 35
U.S.C. 271(a). The Final ID further finds
that Fujifilm’s LTO–7 DI products
practice claims 1, 2, 3, and 10 of the
’805 Patent. The Commission notes that
the Final ID misstates its finding
concerning the technical prong in the
Conclusions of Fact and Law with
respect to the ’805 Patent The Final ID
finds that Sony has not shown that the
asserted claims of the ’805 Patent are
invalid under 35 U.S.C. 102, 103, or
112.
The Final ID finds that Fujifilm has
satisfied the economic prong of the
domestic industry requirement with
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respect to the ’891, ’612, and ’106 Patent
pursuant to 19 U.S.C. 337(A) and (B) for
the asserted LTO–6 DI products. The
Final ID finds that Fujifilm has not
satisfied the economic prong
requirement for the asserted LTO–7 DI
products, which Fujifilm asserted alone
with respect to the ’434 and ’805
patents.
The Final ID finds Sony has not
shown that the ’612, ’106, and ’805
Patents are essential to the LTO–7
Standard. The Final ID also finds that
Fujifilm has not breached any
provisions of the Fujifilm AP–75
agreement, in particular §§ 8.2 or 11.11.
The Final ID further finds that Sony has
not shown that the AP–75 agreement
warrants barring Fujifilm’s claims or
terminating the investigation. The Final
ID also finds that patent misuse does
apply to bar Fujifilm’s claims. The Final
ID further finds that Fujifilm has not
waived its rights to enforce the patentsin-suit. The Final ID also finds that
Sony does not have an implied license
to the patents-in-suit. The Final ID
further finds that Sony has not shown
that patent exhaustion applies.
On September 12, 2017, the ALJ
issued his recommended determination
on remedy and bonding. As instructed
by the Commission, the ALJ also made
findings concerning the public interest
factors set forth in 19 U.S.C. 1337(d)(1)
and (f)(1). See 81 FR 43243. The ALJ
recommended that the appropriate
remedy is a limited exclusion order and
a cease and desist order against Sony.
The ALJ recommended that the
Commission require no bond during the
period of Presidential review. The ALJ
further found that public interest factors
do not bar or require tailoring the
recommended exclusion order. The ALJ
also found that even if the asserted
claims are essential, the public interest
does not favor tailoring or curbing and
exclusion order because Fujifilm did not
breach its obligations under the AP–75
Agreement.
On September 18, 2017, Sony and
OUII each filed petitions for review of
various aspects of the Final ID. Also on
September 18, 2017, Fujifilm filed a
contingent petition for review of various
aspects of the Final ID.
Sony petitions for review of the Final
ID’s finding that the asserted claims of
the ’891 Patent are not invalid as
indefinite, anticipated, or obvious. Sony
also petitions for review of the Final
ID’s findings that Sony’s accused
products infringe the asserted claims 1,
2, 4, 5, 7, and 8 of the ’612 Patent and
that the asserted claims of the ’612
Patent are not invalid as obvious or
indefinite. Sony contingently petitions
for review of the Final ID’s finding that
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the asserted claims are not invalid as
obvious. Sony also contingently
petitions for review of the Final ID’s
findings that the asserted claim of the
’434 Patent is not invalid as indefinite
or obvious. Sony further contingently
petitions for review of the Final ID’s
findings that claims 3 and 10 are not
invalid as anticipated. Sony also
petitions for review of the Final ID’s
finding regarding Fujifilm’s AP–75
Agreement. Sony further petitions for
review of the Final ID’s finding that
Fujifilm has satisfied the economic
prong of the domestic industry
requirement with respect to its LTO–6
DI products.
OUII petitions for review of the Final
ID’s finding that Fujifilm failed to
satisfy the technical prong of the
domestic industry requirement with
respect to the ’434 Patent and that
Sony’s accused products do not infringe
claim 1 of the ’434 Patent.
Fujifilm contingently petitions for
review of the Final ID’s findings that
Sony’s accused LTO–7 products do not
infringe claim 1 of the ’434 Patent and
that Fujifilm’s LTO–7 DI products do
not satisfy the technical prong with
respect to claim 1 of the ’434 Patent.
Fujifilm also contingently petitions for
review of the Final ID’s finding that
Sony’s accused products do not infringe
the asserted claims of the ’805 Patent.
Fujifilm further contingently petitions
for review of the Final ID’s findings that
Sony’s accused LTO–7 products do not
infringe the asserted claims of the ’106
Patent, that Fujifilm’s LTO products do
not satisfy the technical prong with
respect to the asserted claims of the ’106
Patent, and that the asserted claims of
the ’106 Patent are invalid as indefinite.
Fujifilm also contingently petitions for
review of the Final ID’s findings with
respect to secondary considerations of
non-obviousness with respect to the
patents-in-suit. Fujifilm further
contingently petitions for review of the
Final ID’s finding that Fujifilm has
failed to satisfy the economic prong
with respect to its LTO–7 DI products.
On September 26, 2017, Fujifilm,
Sony, and OUII filed responses to the
various petitions for review.
On October 6, 2017, Fujifilm filed a
post-RD statement on the public interest
pursuant to Commission Rule
210.50(a)(4). Sony filed its statement on
October 13, 2017. No responses were
filed by the public in response to the
post-RD Commission Notice issued on
September 13, 2017. See Notice of
Request for Statements on the Public
Interest (Sept. 13, 2017); 82 FR 43567–
68 (Sept. 18, 2017).
Having examined the record of this
investigation, including the Final ID, the
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60039
petitions for review, and the responses
thereto, the Commission has determined
to review the Final ID in part.
Specifically, the Commission has
determined to review-in-part the Final
ID’s finding of violation with respect to
the ’891 Patent. In particular, the
Commission has determined to review
the Final ID’s findings with respect to
anticipation and obviousness. The
Commission has further determined to
review the Final ID’s findings
concerning secondary considerations.
The Commission has also determined
to review-in-part the Final ID’s finding
of violation with respect to the ’612
Patent. Specifically, the Commission
has determined to review the Final ID’s
finding that the asserted claims of the
’612 Patent are not obvious.
Accordingly, the Commission has also
determined to review the Final ID’s
finding that Fujifilm has satisfied the
technical prong of the domestic industry
requirement with respect to the ’612
Patent.
The Commission has further
determined to review-in-part the Final
ID’s findings with respect to the ’106
Patent. Specifically, the Commission
has determined not to review the Final
ID’s finding that the asserted claims of
the ’106 Patent are invalid as indefinite.
The Commission has also determined to
determine to review the Final ID’s
findings with respect to obviousness,
infringement, and the technical prong of
the domestic industry requirement.
The Commission has also determined
to review-in-part the Final ID’s findings
with respect to the ’434 Patent.
Specifically the Commission has
determined to review the Final ID’s
finding that Sony’s accused LTO–7
products do not infringe claim 1 of the
’434 Patent. The Commission has also
determined to review the Final ID’s
finding that Fujifilm’s LTO–7 DI
products do not practice claim 1. The
Commission has further determined to
review the Final ID’s finding that claim
1 is not obvious.
The Commission has further
determined to review-in-part the Final
ID’s findings with respect to the ’805
Patent. Specifically, the Commission
has determined to review the Final ID’s
finding that Sony’s accused LTO–7
products do not infringe asserted claims
3 and 10 of the ’805 Patent. The
Commission has also determined to
review the Final ID’s finding that U.S.
Patent No. 6,710,967 (‘‘Hennecken’’)
does not anticipate claims 3 and 10.
The Commission has also determined
review the Final ID’s findings that the
asserted claims of the ’612, ’106, and
’805 Patents are not essential to the
LTO–7 Standard.
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The Commission has further
determined to review the Final ID’s
findings concerning the economic prong
of the domestic industry.
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. With respect to claim 1 of the ’434
patent, please address the proper scope
of the limitations ‘‘a power spectrum
density at a pitch of 10 micrometers
ranges from 800 to 10,000 nm3 on the
magnetic layer surface.’’ In particular,
please explain whether the entirety of
the claimed ‘‘magnetic layer surface’’
must exhibit the recited range of power
spectrum densities such that a finding
of infringement would require that no
portion of the claimed ‘‘magnetic layer
surface’’ exhibits a power spectrum
density outside of the claimed range.
2. With respect to claim 1 of the ’434
patent, please address the proper scope
of the limitations ‘‘a power spectrum
density at a pitch of 10 micrometers
ranges from 20,000 to 80,000 nm3 on the
backcoat layer surface.’’ In particular,
please explain whether the entirety of
the claimed ‘‘backcoat layer surface’’
must exhibit the recited range of power
spectrum densities such that a finding
of infringement would require that no
portion of the claimed ‘‘backcoat layer
surface’’ exhibits a power spectrum
density outside of the claimed range.
3. Please address whether the
backcoat layer of the accused products
exhibit any power spectrum density
values outside of the range recited in
claim 1 of the ’434 patent.
4. Please address whether the
backcoat layer of the asserted domestic
industry products exhibit any power
spectrum density values outside of the
range recited in claim 1 of the ’434
patent.
5. Please address whether the
magnetic layer of the asserted domestic
industry products exhibit any power
spectrum density values outside of the
range recited in claim 1 of the ’434
patent.
6. Please address how the asserted
domestic industry products practice the
limitation ‘‘a first step of encoding data
for specifying a servo band where the
servo signal positions’’ recited in claims
3 and 10 of the ’805 patent and how, or
if, that informs whether the accused
products infringe that claim limitation.
7. Please provide a comparison of
Fujifilm’s domestic revenues to its
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global revenues for the LTO–6 DI
Products for fiscal year 2013–2015, and
address whether Fujifilm’s domestic
investments in the LTO–6 are
significant in this context.
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
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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
December 27, 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 January 5, 2018.
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–1012’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
secretary/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
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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
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 Commission has also determined
to extend the target date for completion
of the above-captioned investigation to
February 20, 2018.
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: December 12, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017–27168 Filed 12–15–17; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
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Michel P. Toret, M.D.; Decision and
Order
On July 13, 2017, the Acting Assistant
Administrator, Diversion Control
Division, Drug Enforcement
Administration (hereinafter, DEA or
Government), issued an Order to Show
Cause to Michel P. Toret, M.D.
(hereinafter, Applicant) of Jeannette,
Pennsylvania. GX 5. The Show Cause
Order proposed the denial of
Applicant’s application for a DEA
Certificate of Registration on the ground
that Applicant’s ‘‘registration is
1 All contract personnel will sign appropriate
nondisclosure agreements.
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inconsistent with the public interest.’’
GX 5, at 1 (citing 21 U.S.C. 823(f)).
As to the Agency’s jurisdiction, the
Show Cause Order alleged that, on
February 14, 2017, Applicant applied
for DEA Certificate of Registration. GX
5, at 2. See also GX 4 (DEA Form 224
submitted by Applicant).
As the substantive grounds for the
proceeding, the Show Cause Order
alleged that Applicant was registered
with the DEA as a practitioner in
schedules II through V pursuant to
Certificate of Registration No.
AT9432460, and that Applicant
surrendered that registration for cause
on November 29, 2016. GX 5, at 1. The
Show Cause Order further alleged that
Applicant ‘‘continued to issue
prescriptions for controlled substances’’
after he surrendered that DEA
registration. GX 5, at 2. According to the
Show Cause Order, ‘‘DEA’s
investigation of . . . [Applicant’s]
medical practice reveals that . . .
[Applicant] issued approximately 17
prescriptions for controlled substances
after November 29, 2016 in violation of
Federal law.’’ Id. (citing 21 U.S.C. 841(a)
and 843(a)(2)).
The Show Cause Order further alleged
that Applicant materially falsified his
application for a Certificate of
Registration. GX 5, at 2. Specifically, the
Show Cause Order alleged that
Applicant’s material falsification was
his having ‘‘answered ‘no’ when asked,
‘[h]as the applicant ever surrendered
(for cause) or had a federal controlled
substance(s) registration revoked,
suspended, restricted, or denied, or is
any such answer pending.’ ’’ GX 5, at 2.
According to the Show Cause Order,
‘‘this answer represents a material
falsification on an application for a DEA
Registration and, as such, is sufficient
for denial of the pending application.’’
GX 5, at 2 (citing 21 U.S.C. 843(a)(4) and
824(a)(1)).
The Show Cause Order notified
Applicant of his right to request a
hearing on the allegations or to submit
a written statement while waiving his
right to a hearing, the procedures for
electing each option, and the
consequences for failing to elect either
option. GX 5, at 2 (citing 21 CFR
1301.43). The Show Cause Order also
notified Applicant of the opportunity to
submit a corrective action plan. GX 5, at
3 (citing 21 U.S.C. 824(c)(2)(C)).
Adequacy of Service
By Declaration dated August 23, 2017,
a Diversion Investigator (hereinafter,
DI), who described herself as the lead DI
assigned to the regulatory matter
involving Applicant, stated that, on July
21, 2017, she ‘‘personally served
PO 00000
Frm 00042
Fmt 4703
Sfmt 4703
60041
Registrant with a copy of the Order to
Show Cause why Registrant’s
application for a new DEA COR should
not be denied.’’ GX 6, at 2 (hereinafter,
DI Declaration). Based on the
Government’s sworn statement, I find
that the Government’s service of the
Show Cause Order on Applicant was
legally sufficient.
In its Request for Final Agency Action
dated August 25, 2017, the Government
represented that ‘‘more than thirty days
have passed since the Order to Show
Cause was served on . . . [Applicant]
and no request for hearing or other
correspondence has been received by
DEA.’’ Request for Final Agency Action
(hereinafter, RFAA), at 1. The
Government requested that Applicant’s
application for a DEA Certificate of
Registration be denied based on
Applicant’s ‘‘issuing prescriptions
without a DEA COR and then
committing a material falsification on
his subsequent application for a new
DEA COR.’’ RFAA, at 5.
Based on the Government’s sworn
statement and written representations,
and based on my review of the record,
I find that more than 30 days have now
passed since the date on which
Applicant was served with the Show
Cause Order. Further, based on the
Government’s written representations, I
find that neither Applicant, nor anyone
purporting to represent him, has
requested a hearing, submitted a written
statement while waiving Applicant’s
right to a hearing, or submitted a
corrective action plan. Accordingly, I
find that Applicant has waived his right
to a hearing and his right to submit a
written statement and corrective action
plan. 21 CFR 1301.43(d) and 21 U.S.C.
824(c)(2)(C). I, therefore, issue this
Decision and Order based on the record
submitted by the Government. 21 CFR
1301.43(e).
Findings of Fact
Jurisdictional Facts
On or about February 13, 2017,
Applicant submitted an application for
a DEA registration under the Controlled
Substances Act. GX 4. On that
application, Applicant certified to the
truth and correctness of the information
he furnished on the application,
including that he never ‘‘surrendered
(for cause) or had a federal controlled
substance registration revoked,
suspended, restricted or denied.’’ Id. at
1. Based on the evidence in the record,
I find that this certification was false.
E:\FR\FM\18DEN1.SGM
18DEN1
]]>Agencies
[Federal Register Volume 82, Number 241 (Monday, December 18, 2017)]
[Notices]
[Pages 60038-60041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27168]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1012]
Certain Magnetic Data Storage Tapes and Cartridges Containing the
Same; Commission Determination To Review-in-Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions; Extension of Target Date for Completion of the
Investigation
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 September 1, 2017, finding a violation of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337'') in the above-captioned investigation. The Commission
has also determined to extend the target date for completion of the
above-captioned investigation to February 20, 2018.
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 July 1, 2016, based on a Complaint filed by Fujifilm Corporation of
Tokyo, Japan, and Fujifilm Recording Media U.S.A., Inc. of Bedford,
Massachusetts (collectively, ``Fujifilm''). 81 FR 43243-44 (July 1,
2016). The Complaint alleges violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in the sale
for importation, importation, and sale within the United States after
importation of certain magnetic data storage tapes and cartridges
containing the same by reason of infringement of certain claims of U.S.
Patent Nos. 6,641,891 (``the '891 patent''); 6,703,106 (``the '106
patent''); 6,703,101 (``the '101 patent''); 6,767,612 (``the '612
patent''); 8,236,434 (``the '434 patent''); and 7,355,805 (``the '805
patent''). The Complaint further alleges the existence of a domestic
industry. The Commission's Notice of Investigation named as respondents
Sony Corporation of Tokyo, Japan, Sony Corporation of America of New
York, New York, and Sony Electronics Inc. of San Diego, California
(collectively, ``Sony''). The Office of Unfair Import Investigations
(``OUII'') was also named as a party to the investigation. The
Commission later terminated the investigation as to the '101 patent.
Order No. 24 (Jan. 18, 2017); Notice (Feb. 15, 2017).
On September 1, 2017, the ALJ issued his final ID finding a
violation of section 337 with respect to claims 1, 4-9, 11, and 14 of
the '891 patent and asserted claims 1, 2, 4, 5, 7, and 8 of the '612
patent. The ALJ found no violation of section 337 with respect to
asserted claims 9-11 of the '612 patent; asserted claim 2, 5, and 6 of
the '106 patent; asserted claim 1 of the '434 patent; and asserted
claims 3 and 10 of the '805 patent.
In particular, the Final ID finds that Sony's accused products
infringe claims 1, 4-9, 11, and 14 of the '891 Patent under 35 U.S.C.
271(a). The Final ID also finds that Fujifilm's domestic industry
(``DI'') products practice the asserted claims of the '891 Patent, thus
Fujifilm has satisfied the technical prong of the domestic industry
requirement with respect to the '891 Patent regarding its LTO-6 and
LTO-7 DI products. The Final ID finds that Sony has not shown that the
asserted claims of the '891 Patent are invalid under 35 U.S.C. 102,
103, or 112.
The Final ID finds that Sony's accused products infringe asserted
claims 1, 2, 4, 5, 7, and 8 of the '612 Patent under 35 U.S.C. 271(a).
The Final ID finds, however, that Fujifilm failed to show that Sony has
induced infringement of claims 9-11 of the '612 Patent under 35 U.S.C.
271(b). The Final ID further finds that Fujifilm's DI products practice
claims 1, 2, 4, 5, and 7-11 of the '612 Patent and, thus, Fujifilm has
satisfied the technical prong of the domestic industry requirement with
respect to the '612 Patent regarding its LTO-6 and LTO-7 DI products.
The Final ID finds that Sony has not shown that the asserted claims of
the '612 Patent are invalid under 35 U.S.C. 102, 103, or 112.
The Final ID finds that the accused products do not infringe
asserted claims 2, 5, and 6 of the '106 Patent under 35 U.S.C. 271(a).
The Final ID further finds that neither Fujifilm's LTO-6 nor LTO-7 DI
products practice any claim of the '106 Patent, thus Fujifilm has
failed to satisfy the technical prong of the domestic industry
requirement with respect to the '106 Patent. The Final ID also finds
that Sony has not shown that the asserted claims of the '106 Patent are
invalid under 35 U.S.C. 102 or 103, but has shown that the asserted
claims of the '106 Patent are indefinite under 35 U.S.C. 112.
The Final ID finds that the accused products do not infringe
asserted claim 1 of the '434 under 35 U.S.C. 271(a). The Final ID
further finds that Fujifilm's LTO-7 DI products do not practice any
claim of the '434 Patent, thus Fujifilm has failed to satisfy the
technical prong of the domestic industry requirement with respect to
the '434 Patent. The Final ID finds that Sony has not shown that the
asserted claims of the '434 Patent are invalid under 35 U.S.C. 102,
103, or 112.
The Final ID finds the accused products do not infringe asserted
claims 3 and 10 of the '805 Patent under 35 U.S.C. 271(a). The Final ID
further finds that Fujifilm's LTO-7 DI products practice claims 1, 2,
3, and 10 of the '805 Patent. The Commission notes that the Final ID
misstates its finding concerning the technical prong in the Conclusions
of Fact and Law with respect to the '805 Patent The Final ID finds that
Sony has not shown that the asserted claims of the '805 Patent are
invalid under 35 U.S.C. 102, 103, or 112.
The Final ID finds that Fujifilm has satisfied the economic prong
of the domestic industry requirement with
[[Page 60039]]
respect to the '891, '612, and '106 Patent pursuant to 19 U.S.C. 337(A)
and (B) for the asserted LTO-6 DI products. The Final ID finds that
Fujifilm has not satisfied the economic prong requirement for the
asserted LTO-7 DI products, which Fujifilm asserted alone with respect
to the '434 and '805 patents.
The Final ID finds Sony has not shown that the '612, '106, and '805
Patents are essential to the LTO-7 Standard. The Final ID also finds
that Fujifilm has not breached any provisions of the Fujifilm AP-75
agreement, in particular Sec. Sec. 8.2 or 11.11. The Final ID further
finds that Sony has not shown that the AP-75 agreement warrants barring
Fujifilm's claims or terminating the investigation. The Final ID also
finds that patent misuse does apply to bar Fujifilm's claims. The Final
ID further finds that Fujifilm has not waived its rights to enforce the
patents-in-suit. The Final ID also finds that Sony does not have an
implied license to the patents-in-suit. The Final ID further finds that
Sony has not shown that patent exhaustion applies.
On September 12, 2017, the ALJ issued his recommended determination
on remedy and bonding. As instructed by the Commission, the ALJ also
made findings concerning the public interest factors set forth in 19
U.S.C. 1337(d)(1) and (f)(1). See 81 FR 43243. The ALJ recommended that
the appropriate remedy is a limited exclusion order and a cease and
desist order against Sony. The ALJ recommended that the Commission
require no bond during the period of Presidential review. The ALJ
further found that public interest factors do not bar or require
tailoring the recommended exclusion order. The ALJ also found that even
if the asserted claims are essential, the public interest does not
favor tailoring or curbing and exclusion order because Fujifilm did not
breach its obligations under the AP-75 Agreement.
On September 18, 2017, Sony and OUII each filed petitions for
review of various aspects of the Final ID. Also on September 18, 2017,
Fujifilm filed a contingent petition for review of various aspects of
the Final ID.
Sony petitions for review of the Final ID's finding that the
asserted claims of the '891 Patent are not invalid as indefinite,
anticipated, or obvious. Sony also petitions for review of the Final
ID's findings that Sony's accused products infringe the asserted claims
1, 2, 4, 5, 7, and 8 of the '612 Patent and that the asserted claims of
the '612 Patent are not invalid as obvious or indefinite. Sony
contingently petitions for review of the Final ID's finding that the
asserted claims are not invalid as obvious. Sony also contingently
petitions for review of the Final ID's findings that the asserted claim
of the '434 Patent is not invalid as indefinite or obvious. Sony
further contingently petitions for review of the Final ID's findings
that claims 3 and 10 are not invalid as anticipated. Sony also
petitions for review of the Final ID's finding regarding Fujifilm's AP-
75 Agreement. Sony further petitions for review of the Final ID's
finding that Fujifilm has satisfied the economic prong of the domestic
industry requirement with respect to its LTO-6 DI products.
OUII petitions for review of the Final ID's finding that Fujifilm
failed to satisfy the technical prong of the domestic industry
requirement with respect to the '434 Patent and that Sony's accused
products do not infringe claim 1 of the '434 Patent.
Fujifilm contingently petitions for review of the Final ID's
findings that Sony's accused LTO-7 products do not infringe claim 1 of
the '434 Patent and that Fujifilm's LTO-7 DI products do not satisfy
the technical prong with respect to claim 1 of the '434 Patent.
Fujifilm also contingently petitions for review of the Final ID's
finding that Sony's accused products do not infringe the asserted
claims of the '805 Patent. Fujifilm further contingently petitions for
review of the Final ID's findings that Sony's accused LTO-7 products do
not infringe the asserted claims of the '106 Patent, that Fujifilm's
LTO products do not satisfy the technical prong with respect to the
asserted claims of the '106 Patent, and that the asserted claims of the
'106 Patent are invalid as indefinite. Fujifilm also contingently
petitions for review of the Final ID's findings with respect to
secondary considerations of non-obviousness with respect to the
patents-in-suit. Fujifilm further contingently petitions for review of
the Final ID's finding that Fujifilm has failed to satisfy the economic
prong with respect to its LTO-7 DI products.
On September 26, 2017, Fujifilm, Sony, and OUII filed responses to
the various petitions for review.
On October 6, 2017, Fujifilm filed a post-RD statement on the
public interest pursuant to Commission Rule 210.50(a)(4). Sony filed
its statement on October 13, 2017. No responses were filed by the
public in response to the post-RD Commission Notice issued on September
13, 2017. See Notice of Request for Statements on the Public Interest
(Sept. 13, 2017); 82 FR 43567-68 (Sept. 18, 2017).
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.
Specifically, the Commission has determined to review-in-part the
Final ID's finding of violation with respect to the '891 Patent. In
particular, the Commission has determined to review the Final ID's
findings with respect to anticipation and obviousness. The Commission
has further determined to review the Final ID's findings concerning
secondary considerations.
The Commission has also determined to review-in-part the Final ID's
finding of violation with respect to the '612 Patent. Specifically, the
Commission has determined to review the Final ID's finding that the
asserted claims of the '612 Patent are not obvious. Accordingly, the
Commission has also determined to review the Final ID's finding that
Fujifilm has satisfied the technical prong of the domestic industry
requirement with respect to the '612 Patent.
The Commission has further determined to review-in-part the Final
ID's findings with respect to the '106 Patent. Specifically, the
Commission has determined not to review the Final ID's finding that the
asserted claims of the '106 Patent are invalid as indefinite. The
Commission has also determined to determine to review the Final ID's
findings with respect to obviousness, infringement, and the technical
prong of the domestic industry requirement.
The Commission has also determined to review-in-part the Final ID's
findings with respect to the '434 Patent. Specifically the Commission
has determined to review the Final ID's finding that Sony's accused
LTO-7 products do not infringe claim 1 of the '434 Patent. The
Commission has also determined to review the Final ID's finding that
Fujifilm's LTO-7 DI products do not practice claim 1. The Commission
has further determined to review the Final ID's finding that claim 1 is
not obvious.
The Commission has further determined to review-in-part the Final
ID's findings with respect to the '805 Patent. Specifically, the
Commission has determined to review the Final ID's finding that Sony's
accused LTO-7 products do not infringe asserted claims 3 and 10 of the
'805 Patent. The Commission has also determined to review the Final
ID's finding that U.S. Patent No. 6,710,967 (``Hennecken'') does not
anticipate claims 3 and 10.
The Commission has also determined review the Final ID's findings
that the asserted claims of the '612, '106, and '805 Patents are not
essential to the LTO-7 Standard.
[[Page 60040]]
The Commission has further determined to review the Final ID's
findings concerning the economic prong of the domestic industry.
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. With respect to claim 1 of the '434 patent, please address the
proper scope of the limitations ``a power spectrum density at a pitch
of 10 micrometers ranges from 800 to 10,000 nm\3\ on the magnetic layer
surface.'' In particular, please explain whether the entirety of the
claimed ``magnetic layer surface'' must exhibit the recited range of
power spectrum densities such that a finding of infringement would
require that no portion of the claimed ``magnetic layer surface''
exhibits a power spectrum density outside of the claimed range.
2. With respect to claim 1 of the '434 patent, please address the
proper scope of the limitations ``a power spectrum density at a pitch
of 10 micrometers ranges from 20,000 to 80,000 nm\3\ on the backcoat
layer surface.'' In particular, please explain whether the entirety of
the claimed ``backcoat layer surface'' must exhibit the recited range
of power spectrum densities such that a finding of infringement would
require that no portion of the claimed ``backcoat layer surface''
exhibits a power spectrum density outside of the claimed range.
3. Please address whether the backcoat layer of the accused
products exhibit any power spectrum density values outside of the range
recited in claim 1 of the '434 patent.
4. Please address whether the backcoat layer of the asserted
domestic industry products exhibit any power spectrum density values
outside of the range recited in claim 1 of the '434 patent.
5. Please address whether the magnetic layer of the asserted
domestic industry products exhibit any power spectrum density values
outside of the range recited in claim 1 of the '434 patent.
6. Please address how the asserted domestic industry products
practice the limitation ``a first step of encoding data for specifying
a servo band where the servo signal positions'' recited in claims 3 and
10 of the '805 patent and how, or if, that informs whether the accused
products infringe that claim limitation.
7. Please provide a comparison of Fujifilm's domestic revenues to
its global revenues for the LTO-6 DI Products for fiscal year 2013-
2015, and address whether Fujifilm's domestic investments in the LTO-6
are significant in this context.
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 December 27, 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 January 5, 2018. 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-1012'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/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
[[Page 60041]]
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 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.
---------------------------------------------------------------------------
\1\ All contract personnel will sign appropriate nondisclosure
agreements.
---------------------------------------------------------------------------
The Commission has also determined to extend the target date for
completion of the above-captioned investigation to February 20, 2018.
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: December 12, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-27168 Filed 12-15-17; 8:45 am]
BILLING CODE 7020-02-P
