Certain Mobile Devices With Multifunction Emulators; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding no Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 27651-27653 [2021-10727]
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Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Notices
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FOR FURTHER INFORMATION CONTACT:
Clint Gerdine, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–2310. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal, telephone
202–205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on March 23, 2021, based on a
complaint filed by The NOCO Company
(‘‘NOCO’’) of Glenwillow, Ohio. 86 FR
15496–98 (Mar. 23, 2021). The
complaint, as amended and
supplemented, alleges violations of
section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337, based upon
the importation into the United States,
the sale for importation, and the sale
within the United States after
importation of certain portable battery
jump starters and components thereof
by reason of infringement of certain
claims of U.S. Patent Nos. 9,007,015 and
10,604,024 (‘‘the ’024 patent’’), and U.S.
Trademark Registration Nos. 4,811,656
and 4,811,749. The complaint further
alleges the existence of a domestic
industry. The Commission’s NOI named
forty-four (44) respondents, including:
Lowe’s Companies, Inc.; O’Reilly
Automotive, Inc.; Halo2Cloud, LLC of
Hartford, Connecticut, QVC, Inc. of
Chester, Pennsylvania, and Zagg Co. Rrd
Gst of Plainfield, Indiana (collectively,
‘‘HALO’’); Anker Technology (UK) Ltd.
of Birmingham, United Kingdom;
Shenzhen Dingjiang Technology Co.,
Ltd. and Shenzhen Topdon Technology
Co., Ltd. (collectively ‘‘Shenzhen’’),
both of Shenzhen, China; and Winplus
North America, Inc. of Costa Mesa,
California. The Office of Unfair Import
Investigations is participating in the
investigation.
On April 21, 2021, NOCO moved to
amend the complaint and NOI as
follows: (1) Substitute Lowe’s Home
Centers, LLC, for presently named
respondent Lowe’s Companies, Inc.; (2)
substitute O’Reilly Automotive Stores,
Inc., O’Reilly Auto Enterprises, LLC,
and Ozark Purchasing, LLC for presently
named respondent O’Reilly Automotive,
Inc.; (3) substitute Anker Innovations
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Ltd. (HK) of Birmingham, United
Kingdom for presently named
respondent Anker Technology (UK)
Ltd.; (4) substitute ZAGG Inc. of
Midvale, Utah for presently named
respondent Zagg Co. Rrd Gst; (5)
substitute Shenzhen Dingjiang
Technology Co., Ltd. (d/b/a Shenzhen
Topdon Technology Co., Ltd. and
Topdon Technology Co., Ltd.) of
Shenzhen, China for presently named
respondents Shenzhen; and (6) add
additional respondents ADC Solutions
Auto, LLC d/b/a Type-S and Winplus
NA, LLC, both of Costa Mesa, California,
which are related to presently named
respondent Winplus North America,
Inc. NOCO also moved to withdraw
infringement allegations as to HALO’s
accused products with respect to the
’024 patent and correct certain
typographical and clerical errors.
On April 22, 2021, NOCO and Lowe’s
jointly moved to terminate the
investigation as to Lowe’s based on a
settlement agreement between NOCO
and Lowe’s that resolves all issues
between these parties. On the same date,
NOCO and O’Reilly jointly moved to
terminate the investigation as to
O’Reilly based on a settlement
agreement between NOCO and O’Reilly
that resolves all issues between these
parties. Both motions were unopposed.
On April 23, 2021, the ALJ issued the
subject IDs. Order No. 13 grants NOCO’s
unopposed motion to amend the
complaint and notice of investigation as
described above. The ID finds that the
motion satisfies Commission Rule
210.14(b) (19 CFR 210.14(b)) because
good cause exists to amend the
complaint and NOI as detailed in
NOCO’s motion. Order No. 14 grants the
unopposed joint motions to terminate
the investigation as to Lowe’s and
O’Reilly based on settlement. The IDs
find that the joint motions satisfy the
requirements of Commission Rule
210.21(b) (19 CFR 210.21(b)) and that
terminating the investigation as to
Lowe’s and O’Reilly is not contrary to
the public interest. No party petitioned
for review of either ID.
The Commission has determined not
to review the subject IDs. The complaint
and NOI are amended as detailed in
NOCO’s motion. In addition, Lowe’s
and O’Reilly are terminated from the
investigation.
The Commission vote for this
determination took place on May 17,
2021.
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
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Practice and Procedure, 19 CFR part
210.
By order of the Commission.
Issued: May 18, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–10767 Filed 5–20–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1170]
Certain Mobile Devices With
Multifunction Emulators; Notice of a
Commission Determination To Review
in Part a Final Initial Determination
Finding no Violation of Section 337;
Request for Written Submissions on
the Issues Under Review and on
Remedy, the Public Interest, and
Bonding
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 Administrative Law Judge’s
(‘‘ALJ’’) final initial determination
(‘‘ID’’) issued on March 16, 2021,
finding no violation of section 337 in
the above-referenced investigation. The
Commission requests briefing from the
parties on certain issues under review,
as indicated in this notice, and
submissions from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding, under the
schedule set forth below.
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 may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.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: On August
16, the Commission instituted this
investigation based on a complaint filed
by Dynamics Inc. (‘‘Dynamics’’) of
SUMMARY:
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Cheswick, Pennsylvania. 84 FR 42009–
10 (Aug. 16, 2019). 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, or the sale within
the United States after importation of
certain mobile devices with
multifunction emulators by reason of
infringement of one or more of claims 1
and 5–8 of U.S. Patent No. 8,827,153
(‘‘the ’153 patent’’); claims 1–20 of U.S.
Patent No. 10,032,100 (‘‘the ’100
patent’’); claims 1–7, 9–13, 19, 21, and
22 of U.S. Patent No. 10,223,631 (‘‘the
’631 patent’’); and claims 1–16 of U.S.
Patent No. 10,255,545 (‘‘the ’545
patent’’). Id. at 42010. The
Commission’s notice of investigation
named as respondents Samsung
Electronics Co., Ltd of Gyeonggi,
Republic of Korea and Samsung
Electronics America, Inc. of Ridgefield
Park, New Jersey (collectively,
‘‘Samsung’’). Id. The Office of Unfair
Import Investigations is not
participating in this investigation.
On September 3, 2019, the ALJ set a
sixteen-month target date of December
16, 2020 for completion of the
investigation. Order No. 3 (Sept. 3,
2019). The Order set an evidentiary
hearing for May 11–15, 2020.
On November 26, 2019, the ALJ held
a Markman hearing, and on January 31,
2020, issued Order No. 7, construing
certain claim terms of the asserted
patents.
On May 20, 2020, the ALJ issued an
initial determination granting
Dynamics’ unopposed motion for partial
termination of the investigation as to
claims 5, 6, and 8 of the ’153 patent,
claims 2, 3, 5, 7, 9–11, 13–17, 19, and
20 of the ’100 patent, claims 2, 3, 5, 7,
9–13, 19, and 21 of the ’631 patent, and
claims 2, 4, and 6–16 of the ’545 patent.
Order No. 15 (May 20, 2020),
unreviewed, Notice (June 15, 2020).
Due to the ongoing COVID–19
pandemic, the ALJ amended the
procedural schedule several times. On
March 12, 2020, the Commission
postponed all in-person hearings under
section 337 scheduled within the next
sixty days. See 85 FR 15498 (Mar. 18,
2020). Thus, the ALJ issued Order No.
10, rescheduling the evidentiary hearing
for June 22–26, 2020.
On April 6, 2020, the ALJ issued
Order No. 12, resetting the target date to
February 23, 2021 due to the COVID–19
pandemic. Order No. 12 (Apr. 6, 2020),
unreviewed, Notice (Apr. 24, 2020).
On May 14, 2020, the Commission
extended the postponement of all
section 337 hearings. See 85 FR 30734–
5 (May 20, 2020). On June 22, 2020 the
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Commission further extended the
postponement of all in-person section
337 hearings ‘‘until such time as the
agency enters Phase Three of the
Commission’s three-phase plan to reestablish on-site business operations.’’
85 FR 38388–9 (June 26, 2020). This
order is currently in effect.
On August 11, 2020, the ALJ
scheduled a virtual hearing using the
Commission’s newly established
videoconference software for November
16–20, 2020 and reset the target date for
July 16, 2021. Order No. 24 (Aug. 11,
2020), unreviewed, Notice (Sept. 8,
2020).
On March 16, 2021, the ALJ issued
the final ID, finding no violation of
section 337. The ID found that the
importation requirement under 19
U.S.C. 1337(a)(1)(B) is satisfied. ID at 28.
Specifically, the ID found that ‘‘[t]he
parties stipulated to facts establishing
the importation requirement is met for
both respondents’’ and that ‘‘Samsung
does not dispute the Commission’s
jurisdiction over this investigation or
that the requisite importation or sale in
connection with importation has taken
place for each Accused Product.’’ Id.
Accordingly, the ID found that the
Commission has jurisdiction over this
investigation and that the importation
requirement has been satisfied. Id.
With respect to the domestic industry
requirement, the ID found that
Dynamics had satisfied the domestic
industry requirement for the ’100
patent, but not the ’153, ’631, and ’545
patents. ID at 183–84. For the domestic
industry requirement’s technical prong,
the ID found that Dynamics failed to
show it practiced any claim of the ’153
and ’631 patents. Id. at 60–64, 127–31.
For the ’545 patent, however, the ID
found that Dynamics had shown it was
‘‘in the process’’ of practicing claim 1 of
the ’545 patent. Id. at 148–52. With
respect to the domestic industry
requirement’s economic prong, for the
’153 and ’631 patents, the ID found that
Dynamics had shown it had made
significant investments in satisfaction of
section 337(a)(3)(A) and (B), 19 U.S.C.
1337(a)(3)(A)–(B). Id. at 158–79. For the
’545 patent, the ID found that Dynamics
had not shown that it was ‘‘in the
process’’ of establishing a U.S. industry.
Id. at 180–83.
With respect to infringement and
validity, the ID found that Samsung
infringes claims 1 and 7 of the ’153
patent and that Samsung failed to
establish that those claims are invalid.
ID at 45–58, 64–69. The ID also found
that Samsung infringes claims 1, 4, 6,
12, and 18 of the ’100 patent (except for
claim 6 as to certain modified products),
but that the asserted claims, except for
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claim 4 are invalid as anticipated or
obvious by prior art. Id. at 83–88, 96–
115. The ID further found that Samsung
directly infringes claims 1, 4, 6, and 22
of the ’631 patent, but that those claims
are invalid as anticipated or obvious by
prior art. Id. at 121–127, 131–140. The
ID also found that Samsung directly
infringes claims 1, 3, and 5 of the ’545
patent, but that those claims are invalid
for anticipation. Finally, the ID found
that Samsung failed to carry its burden
with respect to various additional
affirmative defenses under 35 U.S.C.
102(f), 116 (inventorship), or 112
(written description and enablement).
The ID included the ALJ’s
recommended determination on remedy
and bonding (‘‘RD’’). The RD
recommended that the Commission
should issue a limited exclusion order
and cease and desist orders if it finds a
violation. ID/RD at 186–91. The ID,
however, recommended imposing no
bond on covered products that may be
imported during the period of
Presidential review. Id. at 193.
On March 29, 2021, Dynamics filed a
petition for review of the ID, and
Samsung filed a contingent petition for
review. On April 8, 2021, Dynamics and
Samsung submitted responses to each
other’s petition.
Having examined the record of this
investigation, including the ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the ID with respect to the
following: (1) For the ’153 patent, claim
construction of the term ‘‘analog
waveform’’ as well as the related
infringement and technical prong
analysis, (2) for the ’153 patent, the ID’s
finding that the combination of
Shoemaker and Gutman fails to render
the asserted claims obvious; (3) for the
’100 patent, whether Doughty in
combination with VivoTech renders
obvious claim 4 and whether such issue
was waived, whether claims 4 and 6 are
infringed, and whether the domestic
industry requirement is satisfied; and
(4) for the ’545 patent, the ID’s domestic
industry findings. The Commission has
determined not to review the remainder
of the ID.
The parties are requested to brief their
positions on only the following issues:
1. If the Commission construes
‘‘analog waveform’’ to mean ‘‘a wave
shape whose amplitude changes in a
continuous fashion’’ that includes socalled real-world square waves, please
cite record evidence and explain
whether the accused products and DI
products meet the relevant claim
limitations.
2. Given Gutman’s disclosure that
‘‘communication of data by the card of
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the current invention is independent of
movement of the card or placement of
the card within the magnetic card
reader’’ (Gutman at col.17 ll.10–13),
please explain why or why not one of
ordinary skill would be motivated to
combine Shoemaker with Gutman.
3. While Gutman states that ‘‘no
‘swiping’ movement is necessary,’’ the
disclosure ‘‘allows users to perform the
familiar ‘swiping’ movement while
using the card 200 of the present
invention for users that have become
accustomed to the ‘swiping’ movement
of the card 106.’’ Gutman at col.16
l.66—col.17 l.4. Please discuss the legal
significance of this disclosure to an
obviousness inquiry in light of
Samsung’s proposal to combine Gutman
with Shoemaker to solve the so-called
directionality problem associated with
‘‘swiping.’’
The parties are requested to brief their
positions with reference to the
applicable law and the existing
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 issue: (1) An
exclusion order that could result in the
exclusion of the subject articles from
entry into the United States, and/or (2)
a cease-and-desist order 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, Comm’n Op. at 7–10
(Dec. 1994).
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
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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,
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 parties to
this investigation are requested to file
written submissions on the issues
identified in this Notice and on the
issues of remedy, the public interest,
and bonding. Complainant is requested
to submit proposed remedial orders for
the Commission’s consideration.
Complainant is also requested to state
the date that the patents expire and the
HTSUS subheadings under which the
accused products are imported.
Complainant is further requested to
supply the names of known importers of
Respondents’ products at issue in this
investigation.
The parties’ written submissions and
proposed remedial orders must be filed
no later than the close of business on
Wednesday, June 2. Reply submissions
must be filed no later than the close of
business on Wednesday, June 9.
Opening submissions are limited to 50
pages. Reply submissions are limited to
30 pages. Such submissions should
address the ALJ’s recommended
determination on remedy and bonding.
Interested government agencies and any
other interested parties are also
encouraged to file written submissions
on the issues of remedy, the public
interest, and bonding. Third-party
submissions should be filed no later
than the close of business on
Wednesday, June 9. 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. The Commission’s paper
filing requirements in 19 CFR 210.4(f)
are currently waived. 85 FR 15798
(March 19, 2020). Submissions should
refer to the investigation number (‘‘Inv.
No. 337–TA–1170’’) in a prominent
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27653
place on the cover page and/or the first
page. (See Handbook on Filing
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.pdf). Persons with questions
regarding filing should contact the
Secretary at (202) 205–2000.
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment unless the information has
already been granted such treatment
during the proceedings. All such
requests should be directed to the
Secretary of the Commission and must
include a full statement of the reasons
why the Commission should grant such
treatment. See 19 CFR 210.6. Documents
for which confidential treatment by the
Commission is sought will be treated
accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
any confidential filing. 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 non-confidential written
submissions will be available for public
inspection at the Office of the Secretary
and on EDIS.
The Commission’s vote on this
determination took place on May 17,
2021.
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 210).
By order of the Commission.
Issued: May 17, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–10727 Filed 5–20–21; 8:45 am]
BILLING CODE 7020–02–P
1 All contract personnel will sign appropriate
nondisclosure agreements.
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[Federal Register Volume 86, Number 97 (Friday, May 21, 2021)]
[Notices]
[Pages 27651-27653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10727]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1170]
Certain Mobile Devices With Multifunction Emulators; Notice of a
Commission Determination To Review in Part a Final Initial
Determination Finding no Violation of Section 337; Request for Written
Submissions on the Issues Under Review and on Remedy, the Public
Interest, and Bonding
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 Administrative Law
Judge's (``ALJ'') final initial determination (``ID'') issued on March
16, 2021, finding no violation of section 337 in the above-referenced
investigation. The Commission requests briefing from the parties on
certain issues under review, as indicated in this notice, and
submissions from the parties, interested government agencies, and
interested persons on the issues of remedy, the public interest, and
bonding, under the schedule set forth below.
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 may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.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: On August 16, the Commission instituted this
investigation based on a complaint filed by Dynamics Inc.
(``Dynamics'') of
[[Page 27652]]
Cheswick, Pennsylvania. 84 FR 42009-10 (Aug. 16, 2019). 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, or the sale within the United States
after importation of certain mobile devices with multifunction
emulators by reason of infringement of one or more of claims 1 and 5-8
of U.S. Patent No. 8,827,153 (``the '153 patent''); claims 1-20 of U.S.
Patent No. 10,032,100 (``the '100 patent''); claims 1-7, 9-13, 19, 21,
and 22 of U.S. Patent No. 10,223,631 (``the '631 patent''); and claims
1-16 of U.S. Patent No. 10,255,545 (``the '545 patent''). Id. at 42010.
The Commission's notice of investigation named as respondents Samsung
Electronics Co., Ltd of Gyeonggi, Republic of Korea and Samsung
Electronics America, Inc. of Ridgefield Park, New Jersey (collectively,
``Samsung''). Id. The Office of Unfair Import Investigations is not
participating in this investigation.
On September 3, 2019, the ALJ set a sixteen-month target date of
December 16, 2020 for completion of the investigation. Order No. 3
(Sept. 3, 2019). The Order set an evidentiary hearing for May 11-15,
2020.
On November 26, 2019, the ALJ held a Markman hearing, and on
January 31, 2020, issued Order No. 7, construing certain claim terms of
the asserted patents.
On May 20, 2020, the ALJ issued an initial determination granting
Dynamics' unopposed motion for partial termination of the investigation
as to claims 5, 6, and 8 of the '153 patent, claims 2, 3, 5, 7, 9-11,
13-17, 19, and 20 of the '100 patent, claims 2, 3, 5, 7, 9-13, 19, and
21 of the '631 patent, and claims 2, 4, and 6-16 of the '545 patent.
Order No. 15 (May 20, 2020), unreviewed, Notice (June 15, 2020).
Due to the ongoing COVID-19 pandemic, the ALJ amended the
procedural schedule several times. On March 12, 2020, the Commission
postponed all in-person hearings under section 337 scheduled within the
next sixty days. See 85 FR 15498 (Mar. 18, 2020). Thus, the ALJ issued
Order No. 10, rescheduling the evidentiary hearing for June 22-26,
2020.
On April 6, 2020, the ALJ issued Order No. 12, resetting the target
date to February 23, 2021 due to the COVID-19 pandemic. Order No. 12
(Apr. 6, 2020), unreviewed, Notice (Apr. 24, 2020).
On May 14, 2020, the Commission extended the postponement of all
section 337 hearings. See 85 FR 30734-5 (May 20, 2020). On June 22,
2020 the Commission further extended the postponement of all in-person
section 337 hearings ``until such time as the agency enters Phase Three
of the Commission's three-phase plan to re-establish on-site business
operations.'' 85 FR 38388-9 (June 26, 2020). This order is currently in
effect.
On August 11, 2020, the ALJ scheduled a virtual hearing using the
Commission's newly established videoconference software for November
16-20, 2020 and reset the target date for July 16, 2021. Order No. 24
(Aug. 11, 2020), unreviewed, Notice (Sept. 8, 2020).
On March 16, 2021, the ALJ issued the final ID, finding no
violation of section 337. The ID found that the importation requirement
under 19 U.S.C. 1337(a)(1)(B) is satisfied. ID at 28. Specifically, the
ID found that ``[t]he parties stipulated to facts establishing the
importation requirement is met for both respondents'' and that
``Samsung does not dispute the Commission's jurisdiction over this
investigation or that the requisite importation or sale in connection
with importation has taken place for each Accused Product.'' Id.
Accordingly, the ID found that the Commission has jurisdiction over
this investigation and that the importation requirement has been
satisfied. Id.
With respect to the domestic industry requirement, the ID found
that Dynamics had satisfied the domestic industry requirement for the
'100 patent, but not the '153, '631, and '545 patents. ID at 183-84.
For the domestic industry requirement's technical prong, the ID found
that Dynamics failed to show it practiced any claim of the '153 and
'631 patents. Id. at 60-64, 127-31. For the '545 patent, however, the
ID found that Dynamics had shown it was ``in the process'' of
practicing claim 1 of the '545 patent. Id. at 148-52. With respect to
the domestic industry requirement's economic prong, for the '153 and
'631 patents, the ID found that Dynamics had shown it had made
significant investments in satisfaction of section 337(a)(3)(A) and
(B), 19 U.S.C. 1337(a)(3)(A)-(B). Id. at 158-79. For the '545 patent,
the ID found that Dynamics had not shown that it was ``in the process''
of establishing a U.S. industry. Id. at 180-83.
With respect to infringement and validity, the ID found that
Samsung infringes claims 1 and 7 of the '153 patent and that Samsung
failed to establish that those claims are invalid. ID at 45-58, 64-69.
The ID also found that Samsung infringes claims 1, 4, 6, 12, and 18 of
the '100 patent (except for claim 6 as to certain modified products),
but that the asserted claims, except for claim 4 are invalid as
anticipated or obvious by prior art. Id. at 83-88, 96-115. The ID
further found that Samsung directly infringes claims 1, 4, 6, and 22 of
the '631 patent, but that those claims are invalid as anticipated or
obvious by prior art. Id. at 121-127, 131-140. The ID also found that
Samsung directly infringes claims 1, 3, and 5 of the '545 patent, but
that those claims are invalid for anticipation. Finally, the ID found
that Samsung failed to carry its burden with respect to various
additional affirmative defenses under 35 U.S.C. 102(f), 116
(inventorship), or 112 (written description and enablement).
The ID included the ALJ's recommended determination on remedy and
bonding (``RD''). The RD recommended that the Commission should issue a
limited exclusion order and cease and desist orders if it finds a
violation. ID/RD at 186-91. The ID, however, recommended imposing no
bond on covered products that may be imported during the period of
Presidential review. Id. at 193.
On March 29, 2021, Dynamics filed a petition for review of the ID,
and Samsung filed a contingent petition for review. On April 8, 2021,
Dynamics and Samsung submitted responses to each other's petition.
Having examined the record of this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review the ID with respect to the following: (1) For the
'153 patent, claim construction of the term ``analog waveform'' as well
as the related infringement and technical prong analysis, (2) for the
'153 patent, the ID's finding that the combination of Shoemaker and
Gutman fails to render the asserted claims obvious; (3) for the '100
patent, whether Doughty in combination with VivoTech renders obvious
claim 4 and whether such issue was waived, whether claims 4 and 6 are
infringed, and whether the domestic industry requirement is satisfied;
and (4) for the '545 patent, the ID's domestic industry findings. The
Commission has determined not to review the remainder of the ID.
The parties are requested to brief their positions on only the
following issues:
1. If the Commission construes ``analog waveform'' to mean ``a wave
shape whose amplitude changes in a continuous fashion'' that includes
so-called real-world square waves, please cite record evidence and
explain whether the accused products and DI products meet the relevant
claim limitations.
2. Given Gutman's disclosure that ``communication of data by the
card of
[[Page 27653]]
the current invention is independent of movement of the card or
placement of the card within the magnetic card reader'' (Gutman at
col.17 ll.10-13), please explain why or why not one of ordinary skill
would be motivated to combine Shoemaker with Gutman.
3. While Gutman states that ``no `swiping' movement is necessary,''
the disclosure ``allows users to perform the familiar `swiping'
movement while using the card 200 of the present invention for users
that have become accustomed to the `swiping' movement of the card
106.'' Gutman at col.16 l.66--col.17 l.4. Please discuss the legal
significance of this disclosure to an obviousness inquiry in light of
Samsung's proposal to combine Gutman with Shoemaker to solve the so-
called directionality problem associated with ``swiping.''
The parties are requested to brief their positions with reference
to the applicable law and the existing 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 issue: (1) An exclusion order that could result in the
exclusion of the subject articles from entry into the United States,
and/or (2) a cease-and-desist order 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, Comm'n Op. at 7-10 (Dec. 1994).
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,
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 parties to this investigation are
requested to file written submissions on the issues identified in this
Notice and on the issues of remedy, the public interest, and bonding.
Complainant is requested to submit proposed remedial orders for the
Commission's consideration. Complainant is also requested to state the
date that the patents expire and the HTSUS subheadings under which the
accused products are imported. Complainant is further requested to
supply the names of known importers of Respondents' products at issue
in this investigation.
The parties' written submissions and proposed remedial orders must
be filed no later than the close of business on Wednesday, June 2.
Reply submissions must be filed no later than the close of business on
Wednesday, June 9. Opening submissions are limited to 50 pages. Reply
submissions are limited to 30 pages. Such submissions should address
the ALJ's recommended determination on remedy and bonding. Interested
government agencies and any other interested parties are also
encouraged to file written submissions on the issues of remedy, the
public interest, and bonding. Third-party submissions should be filed
no later than the close of business on Wednesday, June 9. 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. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1170'') in a prominent place on
the cover page and/or the first page. (See Handbook on Filing
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary at (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment unless the information
has already been granted such treatment during the proceedings. All
such requests should be directed to the Secretary of the Commission and
must include a full statement of the reasons why the Commission should
grant such treatment. See 19 CFR 210.6. Documents for which
confidential treatment by the Commission is sought will be treated
accordingly. A redacted non-confidential version of the document must
also be filed simultaneously with any confidential filing. 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 non-confidential 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's vote on this determination took place on May 17,
2021.
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
210).
By order of the Commission.
Issued: May 17, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-10727 Filed 5-20-21; 8:45 am]
BILLING CODE 7020-02-P
