Certain Access Control Systems and Components Thereof Notice of Commission Determination To Review in Part a Final Initial Determination; Schedule for Filing Written Submissions; Extension of Target Date, 61792-61794 [2017-28135]
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Federal Register / Vol. 82, No. 249 / Friday, December 29, 2017 / Notices
subject articles if they were to be
excluded;
(iv) indicate whether complainant,
complainant’s licensees, and/or third
party suppliers have the capacity to
replace the volume of articles
potentially subject to the requested
exclusion order and/or a cease and
desist order within a commercially
reasonable time; and
(v) explain how the requested
remedial orders would impact United
States consumers.
Written submissions must be filed no
later than by close of business, eight
calendar days after the date of
publication of this notice in the Federal
Register. There will be further
opportunities for comment on the
public interest after the issuance of any
final initial determination in this
investigation.
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 § 210.4(f)
of the Commission’s Rules of Practice
and Procedure (19 CFR 210.4(f)).
Submissions should refer to the docket
number (‘‘Docket No. 3283’’) in a
prominent place on the cover page and/
or the first page. (See Handbook for
Electonic Filing Procedures, Electronic
Filing Procedures 1). 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 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
Commission, its employees and Offices,
1 Handbook
for Electronic Filing Procedures:
https://www.usitc.gov/documents/handbook_on_
filing_procedures.pdf.
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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,2 solely for cybersecurity
purposes. All nonconfidential written
submissions will be available for public
inspection at the Office of the Secretary
and on EDIS.3
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and of §§ 201.10 and 210.8(c) of the
Commission’s Rules of Practice and
Procedure (19 CFR 201.10, 210.8(c)).
documents filed in connection with this
investigation are or will be available for
inspection during official business
hours (8:45 a.m. to 5:15 p.m.) in the
Office of the Secretary, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436,
telephone 202–205–2000. General
information concerning the Commission
may also be obtained by accessing its
internet server (https://www.usitc.gov.)
The public record for this investigation
may be viewed on the Commission’s
electronic docket (EDIS) at https://
edis.usitc.gov. Hearing-impaired
persons are advised that information on
this matter can be obtained by
contacting the Commission’s TDD
terminal on 202–205–1810.
By order of the Commission.
Issued: December 26, 2017.
Katherine M. Hiner,
Supervisory Attorney.
SUPPLEMENTARY INFORMATION:
[FR Doc. 2017–28197 Filed 12–28–17; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1016]
Certain Access Control Systems and
Components Thereof Notice of
Commission Determination To Review
in Part a Final Initial Determination;
Schedule for Filing Written
Submissions; Extension of Target Date
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part the final initial determination
(‘‘ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’) on
October 23, 2017, finding a violation of
section 337 of the Tariff Act of 1930, as
amended, as to claims 1–4, 7–12, 15,
and 16 of U.S. Patent No. 7,161,319
(‘‘the ’319 patent’’) and no violation of
section 337 as to claim 34 of U.S. Patent
No. 7,339,336 (‘‘the ’336 patent’’). The
Commission has also determined to
extend the target date to March 2, 2018.
FOR FURTHER INFORMATION CONTACT:
Panyin A. Hughes, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone 202–
205–3042. Copies of non-confidential
SUMMARY:
2 All contract personnel will sign appropriate
nondisclosure agreements.
3 Electronic Document Information System
(EDIS): https://edis.usitc.gov.
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The
Commission instituted this investigation
on August 9, 2016, based on a complaint
filed by The Chamberlain Group, Inc. of
Elmhurst, Illinois (‘‘Chamberlain’’ or
‘‘CGI’’). 81 FR 52713 (Aug. 9, 2016). The
complaint alleges violations of section
337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337), in the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain access control systems and
components thereof by reason of
infringement of one or more of claims 1,
10–12, and 18–25 of U.S. Patent No.
7,196,611 (‘‘the ’611 patent’’); claims 1–
4, 7–12, 15, and 16 of the ’319 patent;
and claims 7, 11–13,15–23, and 34–36
of the ’336 patent. Id. The notice of
investigation named the following
respondents: Techtronic Industries
Company Ltd. of Tsuen Wan, Hong
Kong; Techtronic Industries North
America Inc. of Hunt Valley, Maryland;
One World Technologies, Inc. of
Anderson, South Carolina; OWT
Industries, Inc. of Pickens, South
Carolina; ET Technology (Wuxi). Co.,
Ltd. of Zhejiang, China (collectively,
‘‘Respondents’’); and Ryobi
Technologies Inc. of Anderson, South
Carolina (‘‘Ryobi’’). Id. The Office of
Unfair Import Investigations is not a
party to the investigation.
On October 27, 2016, the Commission
determined not to review the ALJ’s
order (Order No. 4) granting a motion to
amend the Notice of Investigation to
include the following two additional
respondents: Techtronic Trading
Limited of Kwai Chung, Hong Kong; and
Techtronic Industries Factory Outlets
Inc., d/b/a Direct Tools Factory Outlet of
Anderson, South Carolina (collectively,
‘‘Techtronic’’). See Order No. 4,
Comm’n Notice of Non-Review (Oct. 27,
2016).
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On November 7, 2016, the
Commission determined not to review
the ALJ’s order (Order No. 6)
terminating the investigation as to
Ryobi. See Order No. 6, Comm’n Notice
of Non-Review (Nov. 7, 2016).
On March 15, 2017, the Commission
determined not to review the ALJ’s
order (Order No. 15) granting a motion
to terminate the investigation as to
Techtronic. Order No. 15, Comm’n
Notice of Non-Review (Mar. 15, 2017).
On March 20, 2017, the Commission
determined not to review the ALJ’s
order (Order No. 28) granting a motion
to terminate the investigation as to the
’611 patent. Order No. 28; Comm’n
Notice of Non-Review (Mar. 20, 2017).
On March 27, 2017, the ALJ issued
Order No. 23 granting Respondents’
motion for summary determination of
non-infringement of the asserted claims
of the ’319 patent, stemming from the
ALJ’s construction of the claim term
‘‘wall console’’ to mean ‘‘a wallmounted control unit including a
passive infrared detector.’’ See Order
No. 13 (Markman Order at 80).
The ALJ held an evidentiary hearing
from May 1, 2017 through May 3, 2017,
on issues solely relating to the ’336
patent.
On May 3, the Commission
determined to review Order No. 23 that
granted Respondents’ motion for
summary determination of noninfringement of the ’319 patent. On
review, the Commission determined to
construe ‘‘wall console’’ as a ‘‘wallmounted control unit,’’ vacated Order
No. 23, and remanded the investigation
as to the ’319 patent to the ALJ for
further proceedings. See Comm’n Op.
(May 5, 2017) at 1–2.
The ALJ held a second evidentiary
hearing from July 12, 2017, through July
13, 2017, on issues relating to the ’319
patent.
On November 9, 2017, the
Commission determined not to review
the ALJ’s order (Order No. 36) granting
a motion to terminate the investigation
as to certain accused products and
claims 19–23 of the ’336 patent. Order
No. 36; Comm’n Notice of Non-Review
(Nov. 9, 2017).
On October 23, 2017, the ALJ issued
his final ID, finding a violation of
section 337 by Respondents in
connection with claims 1–4, 7–12, 15,
and 16 of the ’319 patent. Specifically,
the ALJ found that the Commission has
subject matter jurisdiction, in rem
jurisdiction over the accused products,
and in personam jurisdiction over
Respondents. ID at 24–26. The ALJ also
found that Chamberlain satisfied the
importation requirement of section 337
(19 U.S.C. 1337(a)(1)(B)). Id. The ALJ
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further found that the accused products
directly infringe asserted claims 1–4, 7–
12, 15, and 16 of the ’319 patent, and
that Respondents induce infringement
of those claims. See ID at 130–141, 144.
The ALJ also found that Respondents
failed to establish that the asserted
claims of the ’319 patent are invalid for
obviousness. ID at 151–212. With
respect to the ’336 patent, the ALJ found
that Respondents do not directly or
indirectly infringe asserted claim 34 and
that clam 34 is not invalid as obvious.
ID at 72–74, 105–119. The ALJ further
found that claims 15, 19, and 34 of the
’336 patent are invalid under 35 U.S.C.
101 for reciting unpatentable subject
matter and that claim 15 is invalid for
anticipation but that claims 12, 14, and
19 have not been shown invalid for
anticipation. ID at 74–103. Finally, the
ALJ found that Chamberlain established
the existence of a domestic industry that
practices the asserted patents under 19
U.S.C. 1337(a)(2). See ID at 257–261,
288–294.
Also on October 23, 2017, the ALJ
issued his recommended determination
on remedy and bonding. Recommended
Determination on Remedy and Bonding
(‘‘RD’’). The ALJ recommends that in the
event the Commission finds a violation
of section 337, the Commission should
issue a limited exclusion order
prohibiting the importation of
Respondents’ accused products and
components thereof that infringe the
asserted claims of the ’319 patent. RD at
2. The ALJ also recommends issuance of
cease and desist orders against
respondents Techtronic Industries
Company Ltd., Techtronic Industries
North America Inc., One World
Technologies, Inc., and OWT Industries,
Inc. based on the presence of
commercially significant inventory in
the United States. RD at 5. With respect
to the amount of bond that should be
posted during the period of Presidential
review, the ALJ recommends that the
Commission set a bond in the amount
of zero (i.e., no bond) during the period
of Presidential review. RD at 6–7.
On November 6, 2017, Respondents
filed a petition for review as to the ’319
patent and a contingent petition for
review as to the ’336 patent. See
Respondents’ Petition for Review. Also
on November 6, 2017, Chamberlain filed
a petition for review of the ID, primarily
challenging the ALJ’s findings of no
violation of section 337 as it pertains to
the ’336 patent. See Complainant’s
Petition for Review of Initial
Determination on Violation of Section
337.
On November 14, 2017, Chamberlain
and Respondents filed their respective
responses to the petitions for review.
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61793
See Complainant’s Response to
Respondents’ Petition for Review of
Initial Determination on Violation of
Section 337; Respondents’ Response to
Complainant’s Petition for Review.
Having examined the record of this
investigation, including the ALJ’s final
ID, the petition for review, and the
response thereto, for the ’319 patent the
Commission has determined to review
(1) the ID’s finding that a combination
of prior art references Doppelt, Jacobs,
and Gilbert fail to render the asserted
claims obvious; and (2) the ID’s finding
that a combination of prior art
references Matsuoka, Doppelt, and Eckel
fail to render the asserted claims
obvious. For the ’336 patent the
Commission has determined to review
(1) the ID’s finding that claim 34 recites
ineligible patent subject matter under 35
U.S.C. § 101; and (2) the ID’s finding
that Pruessel, either alone or in
combination with Koestler, fails to
render claim 34 obvious.
In connection with its review, the
Commission is interested in responses
to the following question:
1. Given the ALJ’s finding that Matsuoka,
Doppelt, and Eckel are analogous references
to the ’319 patent, please discuss whether
they disclose all elements of the asserted
claims of the ’319 patent. In particular please
discuss motivations to combine them, if any.
2. Discuss whether Pruessel, either alone or
in combination with Koestler, renders claim
34 of the ’336 patent obvious.
The parties are requested to brief only
the discrete issues 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 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
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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 are requested to file
written submissions on the issues
identified in this notice. Parties to the
investigation, interested government
agencies, and any other interested
parties are encouraged to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
submissions should address the
recommended determination by the ALJ
on remedy and bonding. Complainants
are requested to submit proposed
remedial orders for the Commission’s
consideration. Complainants are also
requested to state the date that the
patent expires and the HTSUS numbers
under which the accused products are
imported. Complainants are further
requested to supply the names of known
importers of the Respondents’ products
at issue in this investigation. The
written submissions and proposed
remedial orders must be filed no later
than close of business on January 5,
2018. Reply submissions must be filed
no later than the close of business on
January 12, 2018. Opening submissions
are limited to 50 pages. Reply
submissions are limited to 25 pages.
Such submissions should address the
ALJ’s recommended determinations on
remedy and bonding. No further
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submissions on any of 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 eight 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–1016’’) 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
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
March 2, 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.
1 All contract personnel will sign appropriate
nondisclosure agreements.
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Issued: December 22, 2017.
Katherine M. Hiner,
Supervisory Attorney.
[FR Doc. 2017–28135 Filed 12–28–17; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Cooperative Research
Group on ROS-Industrial ConsortiumAmericas
Notice is hereby given that, on
November 30, 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’’),
Southwest Research Institute—
Cooperative Research Group on ROSIndustrial Consortium-Americas (‘‘RICAmericas’’) 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, Deere & Company, Moline,
IL; Siemens Corporation, Berkeley, CA;
Modbot Inc., San Francisco, CA; and
Rethink Robotics, Inc., Boston, MA,
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 RIC-Americas
intends to file additional written
notifications disclosing all changes in
membership or planned activities.
On April 30, 2014, RIC-Americas 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 June 9, 2014 (79 FR
32999).
The last notification was filed with
the Department on October 18, 2017. A
notice was published in the Federal
Register pursuant to Section 6(b) of the
Act on November 13, 2017 (82 FR
52319).
Patricia A. Brink,
Director of Civil Enforcement, Antitrust
Division.
[FR Doc. 2017–28130 Filed 12–28–17; 8:45 am]
BILLING CODE P
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]]>Agencies
[Federal Register Volume 82, Number 249 (Friday, December 29, 2017)]
[Notices]
[Pages 61792-61794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28135]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1016]
Certain Access Control Systems and Components Thereof Notice of
Commission Determination To Review in Part a Final Initial
Determination; Schedule for Filing Written Submissions; Extension of
Target Date
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on October 23, 2017, finding a violation of section 337 of
the Tariff Act of 1930, as amended, as to claims 1-4, 7-12, 15, and 16
of U.S. Patent No. 7,161,319 (``the '319 patent'') and no violation of
section 337 as to claim 34 of U.S. Patent No. 7,339,336 (``the '336
patent''). The Commission has also determined to extend the target date
to March 2, 2018.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone 202-205-3042. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW, Washington, DC 20436,
telephone 202-205-2000. General information concerning the Commission
may also be obtained by accessing its internet server (https://www.usitc.gov.) The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov.
Hearing-impaired persons are advised that information on this matter
can be obtained by contacting the Commission's TDD terminal on 202-205-
1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on August 9, 2016, based on a complaint filed by The Chamberlain Group,
Inc. of Elmhurst, Illinois (``Chamberlain'' or ``CGI''). 81 FR 52713
(Aug. 9, 2016). The complaint alleges violations of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation
into the United States, the sale for importation, and the sale within
the United States after importation of certain access control systems
and components thereof by reason of infringement of one or more of
claims 1, 10-12, and 18-25 of U.S. Patent No. 7,196,611 (``the '611
patent''); claims 1-4, 7-12, 15, and 16 of the '319 patent; and claims
7, 11-13,15-23, and 34-36 of the '336 patent. Id. The notice of
investigation named the following respondents: Techtronic Industries
Company Ltd. of Tsuen Wan, Hong Kong; Techtronic Industries North
America Inc. of Hunt Valley, Maryland; One World Technologies, Inc. of
Anderson, South Carolina; OWT Industries, Inc. of Pickens, South
Carolina; ET Technology (Wuxi). Co., Ltd. of Zhejiang, China
(collectively, ``Respondents''); and Ryobi Technologies Inc. of
Anderson, South Carolina (``Ryobi''). Id. The Office of Unfair Import
Investigations is not a party to the investigation.
On October 27, 2016, the Commission determined not to review the
ALJ's order (Order No. 4) granting a motion to amend the Notice of
Investigation to include the following two additional respondents:
Techtronic Trading Limited of Kwai Chung, Hong Kong; and Techtronic
Industries Factory Outlets Inc., d/b/a Direct Tools Factory Outlet of
Anderson, South Carolina (collectively, ``Techtronic''). See Order No.
4, Comm'n Notice of Non-Review (Oct. 27, 2016).
[[Page 61793]]
On November 7, 2016, the Commission determined not to review the
ALJ's order (Order No. 6) terminating the investigation as to Ryobi.
See Order No. 6, Comm'n Notice of Non-Review (Nov. 7, 2016).
On March 15, 2017, the Commission determined not to review the
ALJ's order (Order No. 15) granting a motion to terminate the
investigation as to Techtronic. Order No. 15, Comm'n Notice of Non-
Review (Mar. 15, 2017).
On March 20, 2017, the Commission determined not to review the
ALJ's order (Order No. 28) granting a motion to terminate the
investigation as to the '611 patent. Order No. 28; Comm'n Notice of
Non-Review (Mar. 20, 2017).
On March 27, 2017, the ALJ issued Order No. 23 granting
Respondents' motion for summary determination of non-infringement of
the asserted claims of the '319 patent, stemming from the ALJ's
construction of the claim term ``wall console'' to mean ``a wall-
mounted control unit including a passive infrared detector.'' See Order
No. 13 (Markman Order at 80).
The ALJ held an evidentiary hearing from May 1, 2017 through May 3,
2017, on issues solely relating to the '336 patent.
On May 3, the Commission determined to review Order No. 23 that
granted Respondents' motion for summary determination of non-
infringement of the '319 patent. On review, the Commission determined
to construe ``wall console'' as a ``wall-mounted control unit,''
vacated Order No. 23, and remanded the investigation as to the '319
patent to the ALJ for further proceedings. See Comm'n Op. (May 5, 2017)
at 1-2.
The ALJ held a second evidentiary hearing from July 12, 2017,
through July 13, 2017, on issues relating to the '319 patent.
On November 9, 2017, the Commission determined not to review the
ALJ's order (Order No. 36) granting a motion to terminate the
investigation as to certain accused products and claims 19-23 of the
'336 patent. Order No. 36; Comm'n Notice of Non-Review (Nov. 9, 2017).
On October 23, 2017, the ALJ issued his final ID, finding a
violation of section 337 by Respondents in connection with claims 1-4,
7-12, 15, and 16 of the '319 patent. Specifically, the ALJ found that
the Commission has subject matter jurisdiction, in rem jurisdiction
over the accused products, and in personam jurisdiction over
Respondents. ID at 24-26. The ALJ also found that Chamberlain satisfied
the importation requirement of section 337 (19 U.S.C. 1337(a)(1)(B)).
Id. The ALJ further found that the accused products directly infringe
asserted claims 1-4, 7-12, 15, and 16 of the '319 patent, and that
Respondents induce infringement of those claims. See ID at 130-141,
144. The ALJ also found that Respondents failed to establish that the
asserted claims of the '319 patent are invalid for obviousness. ID at
151-212. With respect to the '336 patent, the ALJ found that
Respondents do not directly or indirectly infringe asserted claim 34
and that clam 34 is not invalid as obvious. ID at 72-74, 105-119. The
ALJ further found that claims 15, 19, and 34 of the '336 patent are
invalid under 35 U.S.C. 101 for reciting unpatentable subject matter
and that claim 15 is invalid for anticipation but that claims 12, 14,
and 19 have not been shown invalid for anticipation. ID at 74-103.
Finally, the ALJ found that Chamberlain established the existence of a
domestic industry that practices the asserted patents under 19 U.S.C.
1337(a)(2). See ID at 257-261, 288-294.
Also on October 23, 2017, the ALJ issued his recommended
determination on remedy and bonding. Recommended Determination on
Remedy and Bonding (``RD''). The ALJ recommends that in the event the
Commission finds a violation of section 337, the Commission should
issue a limited exclusion order prohibiting the importation of
Respondents' accused products and components thereof that infringe the
asserted claims of the '319 patent. RD at 2. The ALJ also recommends
issuance of cease and desist orders against respondents Techtronic
Industries Company Ltd., Techtronic Industries North America Inc., One
World Technologies, Inc., and OWT Industries, Inc. based on the
presence of commercially significant inventory in the United States. RD
at 5. With respect to the amount of bond that should be posted during
the period of Presidential review, the ALJ recommends that the
Commission set a bond in the amount of zero (i.e., no bond) during the
period of Presidential review. RD at 6-7.
On November 6, 2017, Respondents filed a petition for review as to
the '319 patent and a contingent petition for review as to the '336
patent. See Respondents' Petition for Review. Also on November 6, 2017,
Chamberlain filed a petition for review of the ID, primarily
challenging the ALJ's findings of no violation of section 337 as it
pertains to the '336 patent. See Complainant's Petition for Review of
Initial Determination on Violation of Section 337.
On November 14, 2017, Chamberlain and Respondents filed their
respective responses to the petitions for review. See Complainant's
Response to Respondents' Petition for Review of Initial Determination
on Violation of Section 337; Respondents' Response to Complainant's
Petition for Review.
Having examined the record of this investigation, including the
ALJ's final ID, the petition for review, and the response thereto, for
the '319 patent the Commission has determined to review (1) the ID's
finding that a combination of prior art references Doppelt, Jacobs, and
Gilbert fail to render the asserted claims obvious; and (2) the ID's
finding that a combination of prior art references Matsuoka, Doppelt,
and Eckel fail to render the asserted claims obvious. For the '336
patent the Commission has determined to review (1) the ID's finding
that claim 34 recites ineligible patent subject matter under 35 U.S.C.
Sec. 101; and (2) the ID's finding that Pruessel, either alone or in
combination with Koestler, fails to render claim 34 obvious.
In connection with its review, the Commission is interested in
responses to the following question:
1. Given the ALJ's finding that Matsuoka, Doppelt, and Eckel are
analogous references to the '319 patent, please discuss whether they
disclose all elements of the asserted claims of the '319 patent. In
particular please discuss motivations to combine them, if any.
2. Discuss whether Pruessel, either alone or in combination with
Koestler, renders claim 34 of the '336 patent obvious.
The parties are requested to brief only the discrete issues 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 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
[[Page 61794]]
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 are requested
to file written submissions on the issues identified in this notice.
Parties to the investigation, interested government agencies, and any
other interested parties are encouraged to file written submissions on
the issues of remedy, the public interest, and bonding. Such
submissions should address the recommended determination by the ALJ on
remedy and bonding. Complainants are requested to submit proposed
remedial orders for the Commission's consideration. Complainants are
also requested to state the date that the patent expires and the HTSUS
numbers under which the accused products are imported. Complainants are
further requested to supply the names of known importers of the
Respondents' products at issue in this investigation. The written
submissions and proposed remedial orders must be filed no later than
close of business on January 5, 2018. Reply submissions must be filed
no later than the close of business on January 12, 2018. Opening
submissions are limited to 50 pages. Reply submissions are limited to
25 pages. Such submissions should address the ALJ's recommended
determinations on remedy and bonding. No further submissions on any of
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 eight
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-1016'') 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 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 Commission has also determined to extend the target date for
completion of the above-captioned investigation to March 2, 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 22, 2017.
Katherine M. Hiner,
Supervisory Attorney.
[FR Doc. 2017-28135 Filed 12-28-17; 8:45 am]
BILLING CODE 7020-02-P
