Certain Non-Volatile Memory Devices and Products Containing Same; Notice of Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest and Bonding; Extension of Target Date, 31416-31418 [2018-14380]
Download as PDF
<![CDATA[
31416
Federal Register / Vol. 83, No. 129 / Thursday, July 5, 2018 / Notices
• Clay Cut, LLC (ITP TE69952C–0)
anticipates taking 8.6 acres of species’
habitat incidental to land preparation
and construction in Section 3,
Township 27 South, Range 28 East, in
Polk County, Florida.
• Land Acquisition One, LLC (ITP
TE69953C–0) anticipates taking 11.2
acres of species’ habitat incidental to
land preparation and construction in
Sections 18 and 19, Township 25 South,
Range 27 East, in Osceola County,
Florida.
None of the applicants currently has
a timeframe for development or specific
site plans; however, each applicant
intends to develop its parcel by
constructing one or more structures and
parking areas and installing associated
utilities.
The applicants propose to mitigate for
impacts to the species by purchasing
credits from a Service-approved
conservation bank as follows:
• Tohopekaliga Water Authority
proposes to purchase the equivalent of
4.4 acres of credits.
• Mystic Dunes, LLC proposes to
purchase the equivalent of 13.4 acres of
credits.
• Clay Cut, LLC proposes to purchase
the equivalent of 17.2 acres of credits.
• Land Acquisition One, LLC
proposes to purchase the equivalent of
22.4 acres of credits.
amozie on DSK3GDR082PROD with NOTICES1
Our Preliminary Determination
The Service has made a preliminary
determination that each of the
applicants’ projects, including the
mitigation measures, will individually
and cumulatively have a minor or
negligible effect on the species.
Therefore, we have determined that the
ITPs for each of these projects would be
‘‘low effect’’ and qualify for categorical
exclusions under the National
Environmental Policy Act (NEPA; 42
U.S.C. 4321 et seq.).
Public Availability of Comments
Written comments we receive become
part of the administrative record
associated with this action. Before
including your address, phone number,
email address, or other personal
identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can request in your comment
that we withhold your personal
identifying information from public
review, we cannot guarantee that we
will be able to do so. All submissions
from organizations or businesses, and
from individuals identifying themselves
as representatives or officials of
VerDate Sep<11>2014
16:43 Jul 03, 2018
Jkt 244001
organizations or businesses, will be
made available for public disclosure in
their entirety.
Authority: We provide this notice under
section 10(c) of the ESA (16 U.S.C. 1531 et
seq.) and its implementing regulations (50
CFR 17.22 and 17.32) and NEPA (42 U.S.C.
4321 et seq.) and its implementing
regulations (40 CFR 1506.6 and 43 CFR
46.305).
Roxanna Hinzman,
Field Supervisor, South Florida Ecological
Services Office.
[FR Doc. 2018–14395 Filed 7–3–18; 8:45 am]
BILLING CODE 4333–15–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1046]
Certain Non-Volatile Memory Devices
and Products Containing Same; Notice
of Commission Determination To
Review in Part a Final Initial
Determination Finding No Violation of
Section 337; Schedule for Filing
Written Submissions on the Issues
Under Review and on Remedy, the
Public Interest and Bonding; 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
April 27, 2018, finding no violation of
section 337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337), as to claims
1–8 of U.S. Patent No. 6,552,360 (‘‘the
’360 patent’’); claims 1–10 of U.S. Patent
No. 6,788,602 (‘‘the ’602 patent’’); and
claims 11–16 of U.S. Patent No.
8,035,417 (‘‘the ’417 patent’’). The
Commission has also determined to
extend the target date for completion of
this investigation until September 4,
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
SUMMARY:
PO 00000
Frm 00058
Fmt 4703
Sfmt 4703
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 Inv. No. 337–
TA–1046 on April 12, 2017, based on a
complaint filed by Macronix
International Co., Ltd. of Hsin-chu,
Taiwan and Macronix America, Inc. of
Milpitas, California (collectively,
‘‘Macronix’’). 82 FR 17687–88 (Apr. 12,
2017). 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 non-volatile memory devices
and products containing the same that
infringe one or more of claims 1–8 of the
’360 patent; claims 1–12 and 16 of the
’602 patent; and claims 1–7, 11–16, and
18 of the ’417 patent. The notice of
investigation named the following
respondents: Toshiba Corporation of
Tokyo, Japan; Toshiba America, Inc. of
New York, New York; Toshiba America
Electronic Components, Inc. of Irvine,
California; Toshiba America Information
Systems, Inc. of Irvine, California; and
Toshiba Information Equipment
(Philippines), Inc. of Binan, Philippines
(collectively, ‘‘Toshiba’’). The Office of
Unfair Import Investigations is a party to
the investigation.
On June 16, 2017, the Commission
determined not to review the ALJ’s
order (Order No. 11) granting an
unopposed motion to amend the Notice
of investigation to add Toshiba Memory
Corporation of Tokyo, Japan as a
respondent. See Order No. 11, Comm’n
Notice of Non-Review (June 16, 2017).
On October 17, 2017, the Commission
determined not to review the ALJ’s
order (Order No. 20) granting an
unopposed motion to terminate the
investigation as to claims 11, 12, and 16
of the ’602 patent. See Order No. 20,
Comm’n Notice of Non-Review (Oct. 17,
2017).
On October 4, 2017, the ALJ held a
Markman hearing to construe certain
disputed claim terms. On December 5,
2017, the ALJ issued Order No. 23
(Markman Order), setting forth her
construction of the disputed claim
terms.
On January 18, 2018, the Commission
determined not to review the ALJ’s
E:\FR\FM\05JYN1.SGM
05JYN1
amozie on DSK3GDR082PROD with NOTICES1
Federal Register / Vol. 83, No. 129 / Thursday, July 5, 2018 / Notices
order (Order No. 24) granting an
unopposed motion to terminate the
investigation as to claims 1–7 and 18 of
the ’417 patent. Order No. 24; Comm’n
Notice of Non-Review (Jan. 18, 2018).
The ALJ held an evidentiary hearing
from February 8, 2018, through
February 14, 2018, and thereafter
received post-hearing briefs.
On April, 27 2018, the ALJ issued her
final ID, finding no violation of section
337 by Toshiba in connection with the
remaining claims, i.e., claims 1–8 of the
’360 patent; claims 1–10 of the ’602
patent; and claims 11–16 of the ’417
patent. Specifically, the ALJ found that
the Commission has subject matter
jurisdiction, in rem jurisdiction over the
accused products, and in personam
jurisdiction over Toshiba. ID at 15–17.
The ALJ also found that Macronix
satisfied the importation requirement of
section 337 (19 U.S.C. 1337(a)(1)(B)). Id.
The ALJ, however, found that the
accused products do not infringe the
asserted claims of the ’360 patent and
’417 patent. See ID at 19–65, 118–130.
The ALJ also found that Toshiba failed
to establish that the asserted claims of
the ’417 patent are invalid for
obviousness. ID at 132–141. Toshiba did
not challenge the validity of the ’360
patent. ID at 70. With respect to the ’602
patent, the ALJ found that certain
accused products infringe asserted
claims 1–10, but that claims 1–5 and
7–10 are invalid for obviousness. ID at
71–88, 91–117. Finally, the ALJ found
that Macronix failed to establish the
existence of a domestic industry that
practices the asserted patents under 19
U.S.C. 1337(a)(2) and also failed to show
a domestic industry in the process of
being established. See ID at 257–261,
288–294.
On May 10, 2018, the ALJ issued her
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 Toshiba’s
accused products that infringe the
asserted claims of the asserted patents.
RD at 1–5. The ALJ also recommends
issuance of cease and desist orders
against the domestic Toshiba
respondents 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 100 percent of entered value for
Toshiba flash memory devices and solid
state drives, and a bond in the amount
VerDate Sep<11>2014
16:43 Jul 03, 2018
Jkt 244001
of six percent of entered value for
Toshiba PCs imported during the period
of Presidential review. RD at 6–9.
On May 14, 2018, Macronix filed a
petition for review challenging the ID’s
finding of no violation of section 337.
The IA also filed a petition for review
that day, challenging the ID’s finding
that Macronix failed to establish a
domestic industry in the process of
being established and certain findings as
to the ’602 patent. Also on May 14,
2018, Toshiba filed a contingent petition
for review of the ID ‘‘in the event that
the Commission decides to review the
ID.’’ On May 22, 2018, Macronix and
Toshiba filed their respective responses
to the petitions for review. On May 23,
2018, the IA filed a response to the
private parties’ petitions for review. The
Chairman granted the IA’s motion for
leave to file the response one day late.
Having examined the record of this
investigation, including the ALJ’s 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 the following: (1)
The finding that Macronix failed to
satisfy the domestic industry
requirement; and (2) the findings of
infringement and invalidity as to the
’602 patent.
In connection with its review, the
Commission is interested in responses
to the following questions:
1. Would one of ordinary skill in the
art understand that the claim term
‘‘coupled’’ in the asserted claims of the
’602 patent construed to mean
‘‘conductively connected’’ requires
select transistors? If yes, how does it
affect the ID’s infringement, domestic
industry technical prong, and invalidity
findings?
2. Would one of ordinary skill in the
art understand that the claim term
‘‘memory array’’ in the asserted claims
of the ’602 patent construed to mean
‘‘multiple memory cells coupled to a
grid of word lines and bit lines’’
necessarily includes select transistors? If
yes, how does it affect the ID’s
infringement, domestic industry
technical prong, and invalidity
findings?
3. The ID states that under the
adopted construction of ‘‘memory
array’’ (set forth above), ‘‘a memory
array consistent with the ’602 patent
. . . could span an entire plane or only
a subset of memory cells in a plane.’’ ID
at 80. Is this additional language
consistent with the ID’s construction? If
that additional language is omitted, how
will the ID’s infringement, domestic
industry technical prong, and invalidity
findings be affected?
PO 00000
Frm 00059
Fmt 4703
Sfmt 4703
31417
4. Please discuss the showing
necessary to meet the statutory
requirement of ‘‘articles protected by the
patent’’ for a domestic industry in the
process of being established under
section 337(a)(2).
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
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. In
connection with this, the Commission is
interested in responses to the following
questions:
1. If an exclusion order issues against
Toshiba’s accused products, can Dell’s
other SSD suppliers or other SSD
suppliers in general fill any void that
may be created?
2. What domestic Dell products will
be impacted by an exclusion order?
3. Toshiba and Dell request a delay in
implementing any exclusion order. If an
exclusion order issues, what specific
E:\FR\FM\05JYN1.SGM
05JYN1
amozie on DSK3GDR082PROD with NOTICES1
31418
Federal Register / Vol. 83, No. 129 / Thursday, July 5, 2018 / Notices
product(s) should a delay apply to?
What should be the duration of the
delay?
4. Macronix and Toshiba present
vastly different views about the ability
of suppliers to satisfy domestic demand
if an exclusion order issues. Please
discuss the ability of suppliers other
than Toshiba to satisfy domestic
demand for each and every product that
may be affected by an exclusion order.
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.
The Commission has also determined
to extend the target date for completion
of this investigation until September 4,
2018.
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
and the IA are requested to submit
proposed remedial orders for the
Commission’s consideration.
Complainants are also requested to state
the date that the patents expire 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 July 12, 2018. Reply
submissions must be filed no later than
the close of business on July 19, 2018.
Opening submissions are limited to 75
pages. Reply submissions are limited to
50 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.
VerDate Sep<11>2014
16:43 Jul 03, 2018
Jkt 244001
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–1046’’) in a prominent place on
the cover page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
secretary/fed_reg_notices/rules/
handbook_on_electronic_filing.pdf).
Persons with questions regarding filing
should contact the Secretary (202–205–
2000).
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. 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 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: June 28, 2018.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2018–14380 Filed 7–3–18; 8:45 am]
BILLING CODE 7020–02–P
1 All contract personnel will sign appropriate
nondisclosure agreements.
PO 00000
Frm 00060
Fmt 4703
Sfmt 4703
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms
and Explosives
[OMB Number 1140–0062]
Agency Information Collection
Activities; Proposed eCollection
eComments Requested; Identification
of Imported Explosives Materials
Bureau of Alcohol, Tobacco,
Firearms and Explosives, Department of
Justice.
ACTION: 30-day notice.
AGENCY:
The Department of Justice
(DOJ), Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), will
submit the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
The proposed information collection
OMB 1140–0062 (Identification of
Imported Explosives Materials) is being
revised due to a change in burden, since
there is an increase in the number of
respondents, responses, and total
burden hours since the last renewal in
2015. The proposed information
collection is also being published to
obtain comments from the public and
affected agencies. The proposed
information collection was previously
published in the Federal Register, on
May 2, 2018, allowing for a 60-day
comment period.
DATES: Comments are encouraged and
will be accepted for an additional 30
days until August 6, 2018.
FOR FURTHER INFORMATION CONTACT: If
you have additional comments,
particularly with respect to the
estimated public burden or associated
response time, have suggestions, need a
copy of the proposed information
collection instrument with instructions,
or desire any other additional
information, please contact Anita
Scheddel, Program Analyst, Explosives
Industry Programs Branch, either by
mail 99 New York Ave. NE,
Washington, DC 20226, or by email at
eipb-informationcollection@atf.gov, or
by telephone at 202–648–7158. Written
comments and/or suggestions can also
be directed to the Office of Management
and Budget, Office of Information and
Regulatory Affairs, Attention
Department of Justice Desk Officer,
Washington, DC 20503 or sent to OIRA_
submissions@omb.eop.gov.
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
SUMMARY:
E:\FR\FM\05JYN1.SGM
05JYN1
]]>Agencies
[Federal Register Volume 83, Number 129 (Thursday, July 5, 2018)]
[Notices]
[Pages 31416-31418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14380]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1046]
Certain Non-Volatile Memory Devices and Products Containing Same;
Notice of Commission Determination To Review in Part a Final Initial
Determination Finding No Violation of Section 337; Schedule for Filing
Written Submissions on the Issues Under Review and on Remedy, the
Public Interest and Bonding; 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 April 27, 2018, finding no violation of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), as to claims 1-8 of
U.S. Patent No. 6,552,360 (``the '360 patent''); claims 1-10 of U.S.
Patent No. 6,788,602 (``the '602 patent''); and claims 11-16 of U.S.
Patent No. 8,035,417 (``the '417 patent''). The Commission has also
determined to extend the target date for completion of this
investigation until September 4, 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 Inv. No. 337-TA-
1046 on April 12, 2017, based on a complaint filed by Macronix
International Co., Ltd. of Hsin-chu, Taiwan and Macronix America, Inc.
of Milpitas, California (collectively, ``Macronix''). 82 FR 17687-88
(Apr. 12, 2017). 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 non-volatile memory
devices and products containing the same that infringe one or more of
claims 1-8 of the '360 patent; claims 1-12 and 16 of the '602 patent;
and claims 1-7, 11-16, and 18 of the '417 patent. The notice of
investigation named the following respondents: Toshiba Corporation of
Tokyo, Japan; Toshiba America, Inc. of New York, New York; Toshiba
America Electronic Components, Inc. of Irvine, California; Toshiba
America Information Systems, Inc. of Irvine, California; and Toshiba
Information Equipment (Philippines), Inc. of Binan, Philippines
(collectively, ``Toshiba''). The Office of Unfair Import Investigations
is a party to the investigation.
On June 16, 2017, the Commission determined not to review the ALJ's
order (Order No. 11) granting an unopposed motion to amend the Notice
of investigation to add Toshiba Memory Corporation of Tokyo, Japan as a
respondent. See Order No. 11, Comm'n Notice of Non-Review (June 16,
2017).
On October 17, 2017, the Commission determined not to review the
ALJ's order (Order No. 20) granting an unopposed motion to terminate
the investigation as to claims 11, 12, and 16 of the '602 patent. See
Order No. 20, Comm'n Notice of Non-Review (Oct. 17, 2017).
On October 4, 2017, the ALJ held a Markman hearing to construe
certain disputed claim terms. On December 5, 2017, the ALJ issued Order
No. 23 (Markman Order), setting forth her construction of the disputed
claim terms.
On January 18, 2018, the Commission determined not to review the
ALJ's
[[Page 31417]]
order (Order No. 24) granting an unopposed motion to terminate the
investigation as to claims 1-7 and 18 of the '417 patent. Order No. 24;
Comm'n Notice of Non-Review (Jan. 18, 2018).
The ALJ held an evidentiary hearing from February 8, 2018, through
February 14, 2018, and thereafter received post-hearing briefs.
On April, 27 2018, the ALJ issued her final ID, finding no
violation of section 337 by Toshiba in connection with the remaining
claims, i.e., claims 1-8 of the '360 patent; claims 1-10 of the '602
patent; and claims 11-16 of the '417 patent. Specifically, the ALJ
found that the Commission has subject matter jurisdiction, in rem
jurisdiction over the accused products, and in personam jurisdiction
over Toshiba. ID at 15-17. The ALJ also found that Macronix satisfied
the importation requirement of section 337 (19 U.S.C. 1337(a)(1)(B)).
Id. The ALJ, however, found that the accused products do not infringe
the asserted claims of the '360 patent and '417 patent. See ID at 19-
65, 118-130. The ALJ also found that Toshiba failed to establish that
the asserted claims of the '417 patent are invalid for obviousness. ID
at 132-141. Toshiba did not challenge the validity of the '360 patent.
ID at 70. With respect to the '602 patent, the ALJ found that certain
accused products infringe asserted claims 1-10, but that claims 1-5 and
7-10 are invalid for obviousness. ID at 71-88, 91-117. Finally, the ALJ
found that Macronix failed to establish the existence of a domestic
industry that practices the asserted patents under 19 U.S.C. 1337(a)(2)
and also failed to show a domestic industry in the process of being
established. See ID at 257-261, 288-294.
On May 10, 2018, the ALJ issued her 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 Toshiba's accused
products that infringe the asserted claims of the asserted patents. RD
at 1-5. The ALJ also recommends issuance of cease and desist orders
against the domestic Toshiba respondents 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 100 percent of entered value for Toshiba flash
memory devices and solid state drives, and a bond in the amount of six
percent of entered value for Toshiba PCs imported during the period of
Presidential review. RD at 6-9.
On May 14, 2018, Macronix filed a petition for review challenging
the ID's finding of no violation of section 337. The IA also filed a
petition for review that day, challenging the ID's finding that
Macronix failed to establish a domestic industry in the process of
being established and certain findings as to the '602 patent. Also on
May 14, 2018, Toshiba filed a contingent petition for review of the ID
``in the event that the Commission decides to review the ID.'' On May
22, 2018, Macronix and Toshiba filed their respective responses to the
petitions for review. On May 23, 2018, the IA filed a response to the
private parties' petitions for review. The Chairman granted the IA's
motion for leave to file the response one day late.
Having examined the record of this investigation, including the
ALJ's 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 the following:
(1) The finding that Macronix failed to satisfy the domestic industry
requirement; and (2) the findings of infringement and invalidity as to
the '602 patent.
In connection with its review, the Commission is interested in
responses to the following questions:
1. Would one of ordinary skill in the art understand that the claim
term ``coupled'' in the asserted claims of the '602 patent construed to
mean ``conductively connected'' requires select transistors? If yes,
how does it affect the ID's infringement, domestic industry technical
prong, and invalidity findings?
2. Would one of ordinary skill in the art understand that the claim
term ``memory array'' in the asserted claims of the '602 patent
construed to mean ``multiple memory cells coupled to a grid of word
lines and bit lines'' necessarily includes select transistors? If yes,
how does it affect the ID's infringement, domestic industry technical
prong, and invalidity findings?
3. The ID states that under the adopted construction of ``memory
array'' (set forth above), ``a memory array consistent with the '602
patent . . . could span an entire plane or only a subset of memory
cells in a plane.'' ID at 80. Is this additional language consistent
with the ID's construction? If that additional language is omitted, how
will the ID's infringement, domestic industry technical prong, and
invalidity findings be affected?
4. Please discuss the showing necessary to meet the statutory
requirement of ``articles protected by the patent'' for a domestic
industry in the process of being established under section 337(a)(2).
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 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. In connection with this, the
Commission is interested in responses to the following questions:
1. If an exclusion order issues against Toshiba's accused products,
can Dell's other SSD suppliers or other SSD suppliers in general fill
any void that may be created?
2. What domestic Dell products will be impacted by an exclusion
order?
3. Toshiba and Dell request a delay in implementing any exclusion
order. If an exclusion order issues, what specific
[[Page 31418]]
product(s) should a delay apply to? What should be the duration of the
delay?
4. Macronix and Toshiba present vastly different views about the
ability of suppliers to satisfy domestic demand if an exclusion order
issues. Please discuss the ability of suppliers other than Toshiba to
satisfy domestic demand for each and every product that may be affected
by an exclusion order.
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.
The Commission has also determined to extend the target date for
completion of this investigation until September 4, 2018.
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 and the IA are requested to submit
proposed remedial orders for the Commission's consideration.
Complainants are also requested to state the date that the patents
expire 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 July 12, 2018. Reply
submissions must be filed no later than the close of business on July
19, 2018. Opening submissions are limited to 75 pages. Reply
submissions are limited to 50 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-1046'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions
regarding filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. 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 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: June 28, 2018.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2018-14380 Filed 7-3-18; 8:45 am]
BILLING CODE 7020-02-P
