Certain Memory Modules and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target Date, 6971-6973 [2020-02336]
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Federal Register / Vol. 85, No. 25 / Thursday, February 6, 2020 / Notices
The
Commission instituted this investigation
on March 12, 2019, based on a
complaint filed by RegenLab USA LLC
of New York, New York (‘‘RegenLab’’).
84 FR 8891 (Mar. 12, 2019). The
complaint, as amended, alleges
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337
(‘‘section 337’’), based upon the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain blood separation and cell
preparation devices by reason of
infringement of certain claims of U.S.
Patent No. 10,064,894. Id. The amended
complaint further alleges that an
industry in the United States exists as
required by section 337. Id. The notice
of investigation named as respondents
Estar Technologies, Ltd. of Holon, Israel,
and Eclipse MedCorp, LLC of The
Colony, Texas (collectively,
‘‘Respondents’’). Id. The Office of Unfair
Import Investigations (‘‘OUII’’) was
named as a party to the investigation. Id.
On November 13, 2019, RegenLab
filed a motion to terminate the
investigation in its entirety based on the
withdrawal of the complaint. On
November 15, 2019, Respondents filed a
response stating that they did not
oppose the motion to terminate, on the
condition that an order to show cause
issue regarding whether RegenLab and
its previous counsel should not be
sanctioned. On November 22, 2019,
Respondents filed a motion seeking that
show cause order. On November 25,
2019, OUII filed a response supporting
the motion to terminate the
investigation.
On December 20, 2019, the presiding
administrative law judge (‘‘ALJ’’) issued
Order No. 16, which denied
Respondents’ motion for the show cause
order.
Also on December 20, 2019, the ALJ
issued Order No. 17, the subject ID,
granting pursuant to 19 CFR 210.21(a)
RegenLab’s motion to terminate the
investigation. The ID finds that
RegenLab’s motion complies with the
Commission’s Rules. No petitions for
review were filed.
The Commission has determined not
to review the subject ID. However, the
Commission notes that RegenLab filed
its motion to terminate six days before
the hearing was scheduled to begin,
after extensive proceedings, including
discovery, had occurred before the ALJ.
As a general matter, the Commission
notes that withdrawal of a complaint at
such a late stage of the investigation
raises questions about what effect, if
any, termination would have on a future
complaint that might be filed based on
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SUPPLEMENTARY INFORMATION:
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the same or similar alleged violations of
section 337 by the same respondents,
and how the record from the terminated
investigation may be used in such a
future investigation. This investigation
is terminated.
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: January 31, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–02337 Filed 2–5–20; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1089]
Certain Memory Modules and
Components Thereof; Commission
Determination To Review in Part a
Final Initial Determination Finding a
Violation of Section 337; Schedule for
Filing Written Submissions on the
Issues Under Review and on Remedy,
the Public Interest, and Bonding;
Extension of the 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 a final initial determination
(‘‘ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’),
finding a violation of section 337 of the
Tariff Act of 1930. The Commission
requests briefing from the parties on
certain issues under review, as
indicated in this notice. The
Commission also requests briefing from
the parties and interested persons on the
issues of remedy, the public interest,
and bonding. The Commission has also
determined to extend the target date for
the completion of the above-captioned
investigation to April 7, 2020.
FOR FURTHER INFORMATION CONTACT:
Robert Needham, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–5468. 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.
SUMMARY:
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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 December 4, 2017, based on a
complaint filed by Netlist, Inc. of Irvine,
California (‘‘Netlist’’). 82 FR 57290–91.
The complaint, as supplemented,
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 memory
modules and components thereof that
infringe claims 1–8, 10, 12, 14, 16–22,
24, 25, 27, 29–35, 38, 43–45, 47, 48, 50,
52, and 58 of U.S. Patent No. 9,606,907
(‘‘the ’907 patent’’) and claims 1–5, 7–
15, 17–25, 27, and 29 of U.S. Patent No.
9,535,623 (‘‘the ’623 patent’’). Id. The
Commission’s notice of investigation
named as respondents SK hynix Inc. of
the Republic of Korea; SK hynix
America Inc. of San Jose, California; and
SK hynix memory solutions Inc. of San
Jose, California (together, ‘‘SK hynix’’).
Id. at 57291. The Office of Unfair Import
Investigations (‘‘OUII’’) is also
participating in this investigation. Id.
The Commission subsequently
terminated the investigation with
respect to claims 16–22, 24, 25, 27, 29–
35, 38, 43–45, 47, 48, 50, 52, and 58 of
the ’907 patent and claims 12–15, 17–
25, 27, and 29 of the ’623 patent based
on Netlist’s partial withdrawal of its
complaint. See Order. No. 12 (Mar. 19,
2018), not reviewed, Notice (Apr. 5,
2019); Order. No. 19 (Sept. 25, 2018),
not reviewed, Notice (Oct. 15, 2018);
Order. No. 27 (Dec. 6, 2018), not
reviewed, Notice (Dec. 21, 2018).
Accordingly, at the time of the Final ID,
the remaining asserted claims were
claims 1–8, 10, 12, 14, and 15 of the
’907 patent and claims 1–5 and 7–11 of
the ’623 patent.
On October 19, 2019, the ALJ issued
a final initial determination (‘‘Final ID’’)
finding a violation of section 337 with
respect to claims 6 and 12 of the ’907
patent. Final ID at 164–65. The ALJ
found that Netlist showed that SK hynix
infringes claims 1–8, 10, 12, 14, and 15
of the ’907 patent, but failed to show
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that SK hynix infringed any claim of the
’623 patent. The ALJ also found that SK
hynix showed that claims 1–5, 7, 8, 10,
14, and 15 of the ’907 patent are invalid
as obvious, but failed to show the
invalidity of claims 6 and 12. Finally,
the ALJ found that Netlist satisfied the
domestic industry requirement with
respect to the ’907 patent, but did not
satisfy the domestic industry
requirement with respect to the ’623
patent.
On November 4, 2019, SK hynix and
OUII petitioned for review of the Final
ID with respect to many issues involved
in the finding of violation with respect
to the ’907 patent. Also on November 4,
2019, Netlist contingently petitioned for
review of the Final ID with respect to
certain issues related to the ’907 patent.
On November 12, 2019, the parties filed
responses to each other’s petitions.
Because Netlist did not petition for
review of the Final ID’s finding that SK
hynix did not violate section 337 with
respect to the ’623 patent, the
Commission finds that Netlist has
abandoned that contention and that
there is no violation of section 337 with
respect to the ’623 patent. See 19 CFR
210.43(b)(2) (stating that ‘‘[a]ny issue
not raised in petition for review will be
deemed to have been abandoned by the
petitioning party’’).
Having examined the record of this
investigation, including the ALJ’s final
ID, the petition 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
issues: (1) The construction of the
limitation ‘‘receive’’ in the asserted
claims of the ’907 patent, as well as
related issues of infringement and
invalidity; (2) the construction of the
limitation ‘‘produce first module control
signals and second module control
signals in response to the set of input
address and control signals’’ in the
asserted claims of the ’907 patent, as
well as related issues of infringement
and invalidity; (3) the domestic industry
requirement with respect to both of the
’623 and ’907 patents; and (4) the
findings with respect to both of the ’623
and ’907 patents regarding whether SK
hynix showed that Netlist violated its
obligations, if any, to offer a license on
reasonable and non-discriminatory
(RAND) terms. The Commission has
determined not to review any other
findings presented in the Final ID.
The Commission has also determined
to extend the target date for the
completion of the investigation until
April 7, 2020.
In connection with its review, the
Commission is interested in briefing on
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certain issues. The Commission is not
requesting new argument, so for each
response, the parties are to identify
where they previously made such an
argument in their pre- and post-hearing
briefs. The Commission is interested in
briefing on the following issues:
1. If the Commission were to view the
limitation ‘‘set of input address and control
signals’’ as referring to a group of input
address and control signals, what evidence is
there in the record regarding whether or not
the accused products and domestic industry
products satisfy the limitation ‘‘produce first
module control signals and second module
control signals in response to the set of input
address and control signals’’?
2. Please explain, with reference to
supporting evidence in the record, whether
the ’907 and ’623 patents are essential to any
JEDEC standard.
3. Please explain, with reference to
supporting evidence in the record, whether
the alleged domestic industry products’
compliance with JEDEC standards is
sufficient to satisfy each and every limitation
of a claim of the ’907 patent.
4. Please describe the status of Netlist’s
activities and investments with respect to the
articles protected by the ’907 and ’623
patents at the time of Netlist’s filing of the
complaint in this investigation. Additionally,
please describe the current status of Netlist’s
domestic industry investments and activities
with respect to the articles protected by the
’907 and ’623 patents.
The parties are invited to brief only the
discrete issues described 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
statute authorizes issuance of (1) an
order that could result in the exclusion
of the subject articles from entry into the
United States, and/or (2) cease and
desist orders that could result in the
respondents 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, Comm’n Op. at 7–10
(December 1994).
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The statute requires the Commission
to consider the effects of that remedy
upon the public interest. The public
interest factors the Commission will
consider include the effect that an
exclusion order and/or a cease and
desist order 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. The Commission is
particularly interested in briefing on the
following issues:
1. Please discuss whether the market
demand in the United States for memory
modules and components thereof would be
satisfied if the Commission issued remedial
relief against SK hynix regarding the ’907
patent. Please address whether that that
demand could be satisfied by non-infringing
RDIMMs, Netlist licensees, or others.
2. Please discuss the types of U.S.
consumers that purchase and use the accused
products, and discuss the potential impact on
those consumers if the Commission were to
issue remedial relief against SK hynix
regarding the ’907 patent.
3. Please explain whether and to what
extent servers require uniform memory
modules, so the operator of a server would
have to replace the whole server system
based on the failure of a single memory
module if that specific memory module was
no longer available. Please explain whether
the issuance of remedial relief against SK
hynix regarding the ’907 patent would have
such an effect, and, if so, the extent of that
effect.
If the Commission orders some form
of remedy, the U.S. Trade
Representative, as delegated by the
President, has 60 days to approve,
disapprove, or take no action on the
Commission’s determination. 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
Commission requests that the parties to
the investigation file written
submissions on the issues identified in
this notice. The Commission encourages
parties to the investigation, interested
government agencies, and any other
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interested parties to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
initial written submissions should
include views on the recommended
determination by the ALJ on remedy,
the public interest, and bonding, which
issued in the same document as the
Final ID on October 21, 2019. Netlist
and the Commission Investigative
Attorney are also requested to identify
the form of the remedy sought and to
submit proposed remedial orders for the
Commission’s consideration in their
initial written submissions. Netlist is
further requested to state the date when
the ’907 patent expires, provide the
HTSUS numbers under which the
subject articles are imported, and
supply a list of known importers of the
subject article. The written submissions,
exclusive of any exhibits, must not
exceed 50 pages, and must be filed no
later than close of business on February
14, 2020. Reply submissions must not
exceed 25 pages, and must be filed no
later than the close of business on
February 21, 2020. 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–1089’’) 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,
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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,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: January 31, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–02336 Filed 2–5–20; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
[OMB Number 1124–0001]
Agency Information Collection
Activities; Proposed eCollection
eComments Requested; Extension
Without Change, of a Previously
Approved Collection; Registration
Statement of Foreign Agents (FORM
NSD–1)
Foreign Agents Registration Act
Unit (FARA Unit), Counterintelligence
and Export Control Section (CES),
National Security Division (NSD), U.S.
Department of Justice.
ACTION: 60-Day notice.
AGENCY:
The Department of Justice
(DOJ), Foreign Agents Registration Act
(FARA Unit), Counterintelligence and
Export Control Section (CES), National
Security Division (NSD), will be
submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
The proposed information collection is
published to obtain comments from the
public and affected agencies.
DATES: Comments are encouraged and
will be accepted for 60 days until April
6, 2020.
FOR FURTHER INFORMATION CONTACT: If
you have additional comments,
SUMMARY:
1 All contract personnel will sign appropriate
nondisclosure agreements.
PO 00000
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6973
especially on the estimated public
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Brandon L. Van Grack, Deputy Section
Chief, Counterintelligence and Export
Control Section, National Security
Division, 175 N Street NE, Constitution
Square Building Three (‘‘3CON’’)—
Room 1.100, Washington, DC 20002
(phone: 202–233–0776).
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
are encouraged. Your comments should
address one or more of the following
four points:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the National Security
Division, including whether the
information will have practical utility;
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
—Evaluate whether and if so how the
quality, utility, and clarity of the
information to be collected can be
enhanced; and
—Minimize the burden of the collection
of information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
permitting electronic submission of
responses.
Overview of This Information
Collection
1. Type of Information Collection:
Extension of a currently approved
collection.
2. The Title of the Form/Collection:
Registration Statement (Foreign Agents).
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
The form number is NSD–1. The
applicable component within the
Department of Justice is the Foreign
Agents Registration Act (FARA Unit),
Counterintelligence and Export Control
Section, in the National Security
Division.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Private Sector,
Business or other for-profit, Not-forprofit institutions, and individuals. The
form contains Registration Statement
E:\FR\FM\06FEN1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 25 (Thursday, February 6, 2020)]
[Notices]
[Pages 6971-6973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02336]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1089]
Certain Memory Modules and Components Thereof; Commission
Determination To Review in Part a Final Initial Determination Finding a
Violation of Section 337; Schedule for Filing Written Submissions on
the Issues Under Review and on Remedy, the Public Interest, and
Bonding; Extension of the 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 a final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ''), finding a violation of section 337 of the Tariff Act of
1930. The Commission requests briefing from the parties on certain
issues under review, as indicated in this notice. The Commission also
requests briefing from the parties and interested persons on the issues
of remedy, the public interest, and bonding. The Commission has also
determined to extend the target date for the completion of the above-
captioned investigation to April 7, 2020.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. 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 December 4, 2017, based on a complaint filed by Netlist, Inc. of
Irvine, California (``Netlist''). 82 FR 57290-91. The complaint, as
supplemented, 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 memory modules and components thereof that
infringe claims 1-8, 10, 12, 14, 16-22, 24, 25, 27, 29-35, 38, 43-45,
47, 48, 50, 52, and 58 of U.S. Patent No. 9,606,907 (``the '907
patent'') and claims 1-5, 7-15, 17-25, 27, and 29 of U.S. Patent No.
9,535,623 (``the '623 patent''). Id. The Commission's notice of
investigation named as respondents SK hynix Inc. of the Republic of
Korea; SK hynix America Inc. of San Jose, California; and SK hynix
memory solutions Inc. of San Jose, California (together, ``SK hynix'').
Id. at 57291. The Office of Unfair Import Investigations (``OUII'') is
also participating in this investigation. Id.
The Commission subsequently terminated the investigation with
respect to claims 16-22, 24, 25, 27, 29-35, 38, 43-45, 47, 48, 50, 52,
and 58 of the '907 patent and claims 12-15, 17-25, 27, and 29 of the
'623 patent based on Netlist's partial withdrawal of its complaint. See
Order. No. 12 (Mar. 19, 2018), not reviewed, Notice (Apr. 5, 2019);
Order. No. 19 (Sept. 25, 2018), not reviewed, Notice (Oct. 15, 2018);
Order. No. 27 (Dec. 6, 2018), not reviewed, Notice (Dec. 21, 2018).
Accordingly, at the time of the Final ID, the remaining asserted claims
were claims 1-8, 10, 12, 14, and 15 of the '907 patent and claims 1-5
and 7-11 of the '623 patent.
On October 19, 2019, the ALJ issued a final initial determination
(``Final ID'') finding a violation of section 337 with respect to
claims 6 and 12 of the '907 patent. Final ID at 164-65. The ALJ found
that Netlist showed that SK hynix infringes claims 1-8, 10, 12, 14, and
15 of the '907 patent, but failed to show
[[Page 6972]]
that SK hynix infringed any claim of the '623 patent. The ALJ also
found that SK hynix showed that claims 1-5, 7, 8, 10, 14, and 15 of the
'907 patent are invalid as obvious, but failed to show the invalidity
of claims 6 and 12. Finally, the ALJ found that Netlist satisfied the
domestic industry requirement with respect to the '907 patent, but did
not satisfy the domestic industry requirement with respect to the '623
patent.
On November 4, 2019, SK hynix and OUII petitioned for review of the
Final ID with respect to many issues involved in the finding of
violation with respect to the '907 patent. Also on November 4, 2019,
Netlist contingently petitioned for review of the Final ID with respect
to certain issues related to the '907 patent. On November 12, 2019, the
parties filed responses to each other's petitions. Because Netlist did
not petition for review of the Final ID's finding that SK hynix did not
violate section 337 with respect to the '623 patent, the Commission
finds that Netlist has abandoned that contention and that there is no
violation of section 337 with respect to the '623 patent. See 19 CFR
210.43(b)(2) (stating that ``[a]ny issue not raised in petition for
review will be deemed to have been abandoned by the petitioning
party'').
Having examined the record of this investigation, including the
ALJ's final ID, the petition 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 issues: (1) The
construction of the limitation ``receive'' in the asserted claims of
the '907 patent, as well as related issues of infringement and
invalidity; (2) the construction of the limitation ``produce first
module control signals and second module control signals in response to
the set of input address and control signals'' in the asserted claims
of the '907 patent, as well as related issues of infringement and
invalidity; (3) the domestic industry requirement with respect to both
of the '623 and '907 patents; and (4) the findings with respect to both
of the '623 and '907 patents regarding whether SK hynix showed that
Netlist violated its obligations, if any, to offer a license on
reasonable and non-discriminatory (RAND) terms. The Commission has
determined not to review any other findings presented in the Final ID.
The Commission has also determined to extend the target date for
the completion of the investigation until April 7, 2020.
In connection with its review, the Commission is interested in
briefing on certain issues. The Commission is not requesting new
argument, so for each response, the parties are to identify where they
previously made such an argument in their pre- and post-hearing briefs.
The Commission is interested in briefing on the following issues:
1. If the Commission were to view the limitation ``set of input
address and control signals'' as referring to a group of input
address and control signals, what evidence is there in the record
regarding whether or not the accused products and domestic industry
products satisfy the limitation ``produce first module control
signals and second module control signals in response to the set of
input address and control signals''?
2. Please explain, with reference to supporting evidence in the
record, whether the '907 and '623 patents are essential to any JEDEC
standard.
3. Please explain, with reference to supporting evidence in the
record, whether the alleged domestic industry products' compliance
with JEDEC standards is sufficient to satisfy each and every
limitation of a claim of the '907 patent.
4. Please describe the status of Netlist's activities and
investments with respect to the articles protected by the '907 and
'623 patents at the time of Netlist's filing of the complaint in
this investigation. Additionally, please describe the current status
of Netlist's domestic industry investments and activities with
respect to the articles protected by the '907 and '623 patents.
The parties are invited to brief only the discrete issues described
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
statute authorizes issuance of (1) an order that could result in the
exclusion of the subject articles from entry into the United States,
and/or (2) cease and desist orders that could result in the respondents
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, Comm'n Op. at 7-10 (December
1994).
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or a cease and desist order 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. The Commission is particularly interested in
briefing on the following issues:
1. Please discuss whether the market demand in the United States
for memory modules and components thereof would be satisfied if the
Commission issued remedial relief against SK hynix regarding the
'907 patent. Please address whether that that demand could be
satisfied by non-infringing RDIMMs, Netlist licensees, or others.
2. Please discuss the types of U.S. consumers that purchase and
use the accused products, and discuss the potential impact on those
consumers if the Commission were to issue remedial relief against SK
hynix regarding the '907 patent.
3. Please explain whether and to what extent servers require
uniform memory modules, so the operator of a server would have to
replace the whole server system based on the failure of a single
memory module if that specific memory module was no longer
available. Please explain whether the issuance of remedial relief
against SK hynix regarding the '907 patent would have such an
effect, and, if so, the extent of that effect.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. 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 Commission requests that the parties to
the investigation file written submissions on the issues identified in
this notice. The Commission encourages parties to the investigation,
interested government agencies, and any other
[[Page 6973]]
interested parties to file written submissions on the issues of remedy,
the public interest, and bonding. Such initial written submissions
should include views on the recommended determination by the ALJ on
remedy, the public interest, and bonding, which issued in the same
document as the Final ID on October 21, 2019. Netlist and the
Commission Investigative Attorney are also requested to identify the
form of the remedy sought and to submit proposed remedial orders for
the Commission's consideration in their initial written submissions.
Netlist is further requested to state the date when the '907 patent
expires, provide the HTSUS numbers under which the subject articles are
imported, and supply a list of known importers of the subject article.
The written submissions, exclusive of any exhibits, must not exceed 50
pages, and must be filed no later than close of business on February
14, 2020. Reply submissions must not exceed 25 pages, and must be filed
no later than the close of business on February 21, 2020. 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-1089'') 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.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: January 31, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-02336 Filed 2-5-20; 8:45 am]
BILLING CODE 7020-02-P
