Certain Digital Video-Capable Devices and Components Thereof; Commission Determination To Review 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; Extension of the Target Date, 73316-73318 [2021-27945]
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Federal Register / Vol. 86, No. 245 / Monday, December 27, 2021 / Notices
of Commission Rule 210.21 (19 CFR
210.21(a), (b)) and that there is no
evidence that indicates that termination
would adversely affect the public
interest. No party filed a petition for
review of the ID.
The Commission has determined not
to review this ID. Accordingly, the
investigation is terminated.
The Commission vote for this
determination took place on December
20, 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 part
210).
By order of the Commission.
Issued: December 20, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–27943 Filed 12–23–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1224]
Certain Digital Video-Capable Devices
and Components Thereof;
Commission Determination To Review
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;
Extension of the Target Date
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to review a final initial
determination (‘‘ID’’) of the presiding
administrative law judge (‘‘ALJ’’). The
Commission requests written
submissions from the parties on the
issues under review and submissions
from the parties, interested government
agencies, and other interested persons
on the issues of remedy, the public
interest, and bonding, under the
schedule set forth below. The
Commission also extends the target date
for completion of the investigation until
March 23, 2022.
FOR FURTHER INFORMATION CONTACT:
Amanda P. Fisherow, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–2737. Copies of non-confidential
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SUMMARY:
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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: The
Commission instituted the present
investigation on October 22, 2020, based
on a complaint and supplement thereto
filed by Koninklijke Philips N.V. of
Eindhoven, Netherlands and Philips
North America LLC of Cambridge,
Massachusetts (collectively, ‘‘Philips’’).
85 FR 67373–74 (Oct. 22, 2020). The
complaint, as supplemented, alleged
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C.
1337, based upon the importation, sale
for importation, and sale in the United
States after importation of certain digital
video-capable devices and components
thereof by reason of infringement of
certain claims of U.S. Patent Nos.
9,436,809 (‘‘the ’809 patent’’); 9,590,977
(‘‘the ’977 patent’’); 10,091,186 (‘‘the
’186 patent’’); and 10,298,564 (‘‘the ’564
patent’’). Id. at 67373. The complaint
further alleged that an industry in the
United States exists or is in the process
of being established, as required by
section 337. Id. The notice of
investigation named the following
respondents: Dell Technologies Inc. of
Round Rock, Texas and Dell Inc. of
Round Rock, Texas (together ‘‘Dell’’);
Hisense Co. Ltd. of Qingdao, China,
Hisense Visual Technology Co., Ltd. of
Qingdao, China, Hisense Electronics
Manufacturing Company of America
Corporation of Suwanee, Georgia,
Hisense USA Corporation of Suwanee,
Georgia, Hisense Import & Export Co.
Ltd. of Qingdao, China, Hisense
International Co., Ltd. of Qingdao,
China, Hisense International (HK) Co.,
Ltd. of Sheung Wan, Hong Kong (SAR),
and Hisense International (Hong Kong)
America Investment Co., Ltd. of Sheung
Wan, Hong Kong (SAR) (together,
‘‘Hisense’’); HP, Inc. of Palo Alto,
California (‘‘HP’’); Lenovo Group Ltd. of
Quarry Bay, Hong Kong (SAR) and
Lenovo (United States), Inc. of
Morrisville, North Carolina (together,
‘‘Lenovo’’); LG Electronics, Inc. of
Seoul, Republic of Korea and LG
Electronics USA, Inc. of Englewood
Cliffs, New Jersey; TCL Industries
Holdings Co., Ltd., of Guangdong,
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China, TCL Electronics Holdings Ltd. of
Hong Kong Science Park, Hong Kong
(SAR), TCL King Electrical Appliances
(Huizhou) Co. Ltd. of Huizhou, China,
TTE Technology, Inc. of Corona,
California, TCL Moka International Ltd.
of Sha Tin, Hong Kong, TCL Moka
Manufacturing S.A. de C.V. of Tijuana,
Mexico, TCL Smart Device (Vietnam)
Company Ltd. of Binh Duong, Vietnam;
MediaTek Inc. of Hsinchu, Taiwan and
MediaTek USA Inc. of San Jose,
California; Realtek Semiconductor Corp.
of Hsinchu, Tiawan (‘‘Realtek’’); and
Intel Corporation of Santa Clara,
California (‘‘Intel’’). Id. at 67374. The
Office of Unfair Import Investigations
(‘‘OUII’’) is participating in the
investigation. Id.
During the course of the investigation,
Philips moved to terminate the
investigation as to various claims,
patents, and respondents. See Order No.
19, unreviewed by Comm’n Notice (Apr.
15, 2021), Order No. 21, unreviewed by
Comm’n Notice (May 12, 2021), Order
No. 26, unreviewed by Comm’n Notice
(Jun 21, 2021), Order 32, unreviewed by
Comm’n Notice (July 26, 2021), Order
No. 40, unreviewed by Comm’n Notice
(Aug. 2, 2021), and Order No. 46,
unreviewed by Comm’n Notice (Aug. 10,
2021). The Respondents remaining in
the investigation are Dell, Hisense, HP,
Lenovo, TCL, Realtek, and Intel
(together, ‘‘the Respondents’’). The
remaining asserted patent claims are:
claims 1, 9, 11, 12, and 14 of the ’186
patent; and claims 1, 18, 19, 21, and 25
of the ’564 patent.
On October 21, 2021, the ALJ issued
the subject ID. On November 2, 2021,
Philips and OUII each filed petitions for
review. Also, on November 2, 2021,
Respondents Intel, Dell, and Lenovo
filed a contingent petition for review
and Respondents HP, Realtek, Dell,
Lenovo, Hisense, and TCL (‘‘Receiver
Respondents’’) filed a separate
contingent petition for review. On
November 10, 2021, Philips, OUII, and
the Respondents each filed replies.
Having reviewed the record of the
investigation, including the final ID, the
parties’ submissions to the ALJ, and the
petitions for review and replies, the
Commission has determined to review
the ID in part. Specifically, the
Commission has determined to review
the ID’s findings on claim construction,
infringement, validity, and domestic
industry for both of the ’186 and ’564
patents.
In connection with its review, the
Commission requests responses to the
following questions. The parties are
requested to brief their positions with
reference to the applicable law and the
existing evidentiary record.
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(1) Please discuss whether the evidence
establishes that the claimed ‘‘certificate’’ of
the accused products and domestic industry
products indicates that the second device is
compliant with at least one compliance rule.
In your discussion, please address the
specific compliance rule(s) at issue and
specifically how the certificate indicates that
the second device is compliant with the
compliance rule(s). Please address the
evidence in the contexts of both the ’186 and
’564 patents.
(2) Does any of the information contained
within the alleged ‘‘certificate’’ of the
accused products or domestic industry
products [[ ]]? See, e.g., ID at 73–75.
(3) Should ‘‘when,’’ as recited in the
asserted claims, be interpreted to mean
‘‘when and only when’’? See Complainants’
Petition for Review at 23. Did Complainants
waive their argument that the accused
products infringe if ‘‘when’’ is construed to
mean ‘‘when and only when’’? Please address
the intrinsic record in your response and any
relevant Federal Circuit case law.
(4) Discuss the capabilities of the accused
receiver products (and the domestic industry
products, if relevant) and whether they have
instructions arranged to receive protected
content only when the claimed conditions
are satisfied (i.e., [[ ]]).
(5) Please address whether the
‘‘predetermined time’’ limitations of the
asserted claims are met if ‘‘predetermined
time’’ is construed as ‘‘a time interval
selected to ensure that the first and second
communication devices are sufficiently near
one another to permit access to the protected
content.’’ See, e.g., Receiver Respondents
Petition for Review at 18. Please address this
question both for infringement and the
technical prong of domestic industry.
(6) Please discuss whether the Commission
should apply the America Invents Act
(‘‘AIA’’) or pre-AIA statute in evaluating
Respondents’ validity challenges and in
determining the proper priority date.
(7) If the Commission determines that the
ID, in addressing domestic industry, properly
considered labor investments only for 2020
(see ID at 143–149):
a. What is the proper allocation percentage
that should be applied? Please support your
argument with citations to record evidence.
b. Can data on one year of investments
support the significance of an industry that
is already established? Please support your
argument with reference to the statute and
any relevant Commission and judicial
precedent.
The parties are invited to brief only
the discrete issues requested above. 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, inter alia,
(1) an exclusion 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
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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).
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 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
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, the public interest, and
bonding.
In its initial submission, Complainant
is also requested to identify the remedy
sought and Complainant and OUII are
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73317
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainant is further
requested to provide the HTSUS
subheadings under which the accused
products are imported, and to supply
the identification information for all
known importers of the products at
issue in this investigation. The initial
written submissions and proposed
remedial orders must be filed no later
than close of business on January 7,
2022. Reply submissions must be filed
no later than the close of business on
January 14, 2022. Opening submissions
are limited to 60 pages. Reply
submissions are limited to 35 pages. 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–1224) in a prominent place
on the cover page and/or the first page.
(See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.pdf). Persons with questions
regarding filing should contact the
Secretary, (202) 205–2000.
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment by marking each document
with a header indicating that the
document contains confidential
information. This marking will be
deemed to satisfy the request procedure
set forth in Rules 201.6(b) and
210.5(e)(2) (19 CFR 201.6(b) &
210.5(e)(2)). Documents for which
confidential treatment by the
Commission is properly 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
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personnel, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. All nonconfidential written
submissions will be available for public
inspection on EDIS.
The Commission extends the target
date for completion of the investigation
to March 23, 2022.
The Commission vote for this
determination took place on December
20, 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 part
210).
By order of the Commission.
Issued: December 20, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–27945 Filed 12–23–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1288]
Certain Playards and Strollers; Notice
of Institution of Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that a
complaint was filed with the U.S.
International Trade Commission on
November 24, 2021, under section 337
of the Tariff Act of 1930, as amended,
on behalf of Graco Children’s Products
Inc. of Atlanta, Georgia and Wonderland
Nurserygoods Co., Ltd. of Taiwan. A
supplement to the complaint was filed
on December 13, 2021. The complaint,
as supplemented, alleges violations of
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 playards and strollers by reason
of infringement of certain claims of U.S.
Patent No. 9,706,855 (‘‘the ’855 patent’’);
U.S. Patent No. 9,414,694 (‘‘the ’694
patent’’); U.S. Patent No. RE43,919 (‘‘the
’919 patent’’) and U.S. Patent No.
6,979,017 (‘‘the ’017 patent’’). The
complaint further alleges that an
industry in the United States exists as
required by the applicable Federal
Statute. The complainants request that
the Commission institute an
investigation and, after the
investigation, issue a limited exclusion
order and cease and desist orders.
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SUMMARY:
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The complaint, except for
any confidential information contained
therein, may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. Hearing impaired
individuals are advised that information
on this matter can be obtained by
contacting the Commission’s TDD
terminal on (202) 205–1810. Persons
with mobility impairments who will
need special assistance in gaining access
to the Commission should contact the
Office of the Secretary at (202) 205–
2000. General information concerning
the Commission may also be obtained
by accessing its internet server at
https://www.usitc.gov.
FOR FURTHER INFORMATION CONTACT:
Jessica Mullan, Office of Docket
Services, U.S. International Trade
Commission, telephone (202) 205–1802.
SUPPLEMENTARY INFORMATION:
Authority: The authority for
institution of this investigation is
contained in section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C.
1337, and in section 210.10 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.10 (2020).
Scope of Investigation: Having
considered the complaint, the U.S.
International Trade Commission, on
December 20, 2021, ordered that—
(1) Pursuant to subsection (b) of
section 337 of the Tariff Act of 1930, as
amended, an investigation be instituted
to determine whether there is a
violation of subsection (a)(1)(B) of
section 337 in the importation into the
United States, the sale for importation,
or the sale within the United States after
importation of certain products
identified in paragraph (2) by reason of
infringement of one or more of claims
1–20 of the ’855 patent; claims 1, 2, 4–
20 of the ’694 patent; claims 8, 10–12,
14–20, 27, and 28 of the ’919 patent; and
claims 1–6 of the ’017 patent, and
whether an industry in the United
States exists as required by subsection
(a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of
the Commission’s Rules of Practice and
Procedure, 19 CFR 210.10(b)(1), the
plain language description of the
accused products or category of accused
products, which defines the scope of the
investigation, is ‘‘foldable child
containment systems, generally known
as playards, including those with a
bassinet and/or an infant support unit in
different configurations; and foldable
strollers’’;
(3) For the purpose of the
investigation so instituted, the following
are hereby named as parties upon which
ADDRESSES:
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this notice of investigation shall be
served:
(a) The complainant is: Graco
Children’s Products Inc., 6655 Peachtree
Dunwoody Road, Atlanta, GA 30328.
Wonderland Nurserygoods Co., Ltd.,
Rui Kwang Road, No. 433, 10th Floor,
Neihu, Taipei, Taiwan 114691.
(b) The respondents are the following
entities alleged to be in violation of
section 337, and are the parties upon
which the complaint is to be served:
Baby Trend, Inc., 13048 Valley Blvd.,
Fontana, CA 92335.
Dongguan Golden Prosper Baby
Products Co., Ltd., Unit 1, No. 10
Lengshuikeng Road, Huang Feng Ling
Industrial Park, Luo Ma Village, Qing Xi
Town, Dongguan City, Guangdong,
China, 523660.
Sichuan Hobbies Baby Products Co.,
Ltd., Sandaoqiao Industrial Park,
Longchang City, Neijiang, Sichuan,
China, 642150.
Anhui Chile Baby Products Co., Ltd.,
No. 1, 9th Road, Feidong Xincheng
Develop Zone, Anhui Province, China,
231600.
(4) For the investigation so instituted,
the Chief Administrative Law Judge,
U.S. International Trade Commission,
shall designate the presiding
Administrative Law Judge.
The Office of Unfair Import
Investigations is not participating as a
party in this investigation.
Responses to the complaint and the
notice of investigation must be
submitted by the named respondents in
accordance with section 210.13 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.13. Pursuant to
19 CFR 201.16(e) and 210.13(a), as
amended in 85 FR 15798 (March 19,
2020), such responses will be
considered by the Commission if
received not later than 20 days after the
date of service by the complainants of
the complaint and the notice of
investigation. Extensions of time for
submitting responses to the complaint
and the notice of investigation will not
be granted unless good cause therefor is
shown.
Failure of a respondent to file a timely
response to each allegation in the
complaint and in this notice may be
deemed to constitute a waiver of the
right to appear and contest the
allegations of the complaint and this
notice, and to authorize the
administrative law judge and the
Commission, without further notice to
the respondent, to find the facts to be as
alleged in the complaint and this notice
and to enter an initial determination
and a final determination containing
such findings, and may result in the
issuance of an exclusion order or a cease
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]]>Agencies
[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Notices]
[Pages 73316-73318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27945]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1224]
Certain Digital Video-Capable Devices and Components Thereof;
Commission Determination To Review 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; 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 (``Commission'') has determined to review a final initial
determination (``ID'') of the presiding administrative law judge
(``ALJ''). The Commission requests written submissions from the parties
on the issues under review and submissions from the parties, interested
government agencies, and other interested persons on the issues of
remedy, the public interest, and bonding, under the schedule set forth
below. The Commission also extends the target date for completion of
the investigation until March 23, 2022.
FOR FURTHER INFORMATION CONTACT: Amanda P. Fisherow, Esq., Office of
the General Counsel, U.S. International Trade Commission, 500 E Street
SW, Washington, DC 20436, telephone (202) 205-2737. 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: The Commission instituted the present
investigation on October 22, 2020, based on a complaint and supplement
thereto filed by Koninklijke Philips N.V. of Eindhoven, Netherlands and
Philips North America LLC of Cambridge, Massachusetts (collectively,
``Philips''). 85 FR 67373-74 (Oct. 22, 2020). The complaint, as
supplemented, alleged violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, based upon the importation, sale for
importation, and sale in the United States after importation of certain
digital video-capable devices and components thereof by reason of
infringement of certain claims of U.S. Patent Nos. 9,436,809 (``the
'809 patent''); 9,590,977 (``the '977 patent''); 10,091,186 (``the '186
patent''); and 10,298,564 (``the '564 patent''). Id. at 67373. The
complaint further alleged that an industry in the United States exists
or is in the process of being established, as required by section 337.
Id. The notice of investigation named the following respondents: Dell
Technologies Inc. of Round Rock, Texas and Dell Inc. of Round Rock,
Texas (together ``Dell''); Hisense Co. Ltd. of Qingdao, China, Hisense
Visual Technology Co., Ltd. of Qingdao, China, Hisense Electronics
Manufacturing Company of America Corporation of Suwanee, Georgia,
Hisense USA Corporation of Suwanee, Georgia, Hisense Import & Export
Co. Ltd. of Qingdao, China, Hisense International Co., Ltd. of Qingdao,
China, Hisense International (HK) Co., Ltd. of Sheung Wan, Hong Kong
(SAR), and Hisense International (Hong Kong) America Investment Co.,
Ltd. of Sheung Wan, Hong Kong (SAR) (together, ``Hisense''); HP, Inc.
of Palo Alto, California (``HP''); Lenovo Group Ltd. of Quarry Bay,
Hong Kong (SAR) and Lenovo (United States), Inc. of Morrisville, North
Carolina (together, ``Lenovo''); LG Electronics, Inc. of Seoul,
Republic of Korea and LG Electronics USA, Inc. of Englewood Cliffs, New
Jersey; TCL Industries Holdings Co., Ltd., of Guangdong, China, TCL
Electronics Holdings Ltd. of Hong Kong Science Park, Hong Kong (SAR),
TCL King Electrical Appliances (Huizhou) Co. Ltd. of Huizhou, China,
TTE Technology, Inc. of Corona, California, TCL Moka International Ltd.
of Sha Tin, Hong Kong, TCL Moka Manufacturing S.A. de C.V. of Tijuana,
Mexico, TCL Smart Device (Vietnam) Company Ltd. of Binh Duong, Vietnam;
MediaTek Inc. of Hsinchu, Taiwan and MediaTek USA Inc. of San Jose,
California; Realtek Semiconductor Corp. of Hsinchu, Tiawan
(``Realtek''); and Intel Corporation of Santa Clara, California
(``Intel''). Id. at 67374. The Office of Unfair Import Investigations
(``OUII'') is participating in the investigation. Id.
During the course of the investigation, Philips moved to terminate
the investigation as to various claims, patents, and respondents. See
Order No. 19, unreviewed by Comm'n Notice (Apr. 15, 2021), Order No.
21, unreviewed by Comm'n Notice (May 12, 2021), Order No. 26,
unreviewed by Comm'n Notice (Jun 21, 2021), Order 32, unreviewed by
Comm'n Notice (July 26, 2021), Order No. 40, unreviewed by Comm'n
Notice (Aug. 2, 2021), and Order No. 46, unreviewed by Comm'n Notice
(Aug. 10, 2021). The Respondents remaining in the investigation are
Dell, Hisense, HP, Lenovo, TCL, Realtek, and Intel (together, ``the
Respondents''). The remaining asserted patent claims are: claims 1, 9,
11, 12, and 14 of the '186 patent; and claims 1, 18, 19, 21, and 25 of
the '564 patent.
On October 21, 2021, the ALJ issued the subject ID. On November 2,
2021, Philips and OUII each filed petitions for review. Also, on
November 2, 2021, Respondents Intel, Dell, and Lenovo filed a
contingent petition for review and Respondents HP, Realtek, Dell,
Lenovo, Hisense, and TCL (``Receiver Respondents'') filed a separate
contingent petition for review. On November 10, 2021, Philips, OUII,
and the Respondents each filed replies.
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, and the petitions for
review and replies, the Commission has determined to review the ID in
part. Specifically, the Commission has determined to review the ID's
findings on claim construction, infringement, validity, and domestic
industry for both of the '186 and '564 patents.
In connection with its review, the Commission requests responses to
the following questions. The parties are requested to brief their
positions with reference to the applicable law and the existing
evidentiary record.
[[Page 73317]]
(1) Please discuss whether the evidence establishes that the
claimed ``certificate'' of the accused products and domestic
industry products indicates that the second device is compliant with
at least one compliance rule. In your discussion, please address the
specific compliance rule(s) at issue and specifically how the
certificate indicates that the second device is compliant with the
compliance rule(s). Please address the evidence in the contexts of
both the '186 and '564 patents.
(2) Does any of the information contained within the alleged
``certificate'' of the accused products or domestic industry
products [[ ]]? See, e.g., ID at 73-75.
(3) Should ``when,'' as recited in the asserted claims, be
interpreted to mean ``when and only when''? See Complainants'
Petition for Review at 23. Did Complainants waive their argument
that the accused products infringe if ``when'' is construed to mean
``when and only when''? Please address the intrinsic record in your
response and any relevant Federal Circuit case law.
(4) Discuss the capabilities of the accused receiver products
(and the domestic industry products, if relevant) and whether they
have instructions arranged to receive protected content only when
the claimed conditions are satisfied (i.e., [[ ]]).
(5) Please address whether the ``predetermined time''
limitations of the asserted claims are met if ``predetermined time''
is construed as ``a time interval selected to ensure that the first
and second communication devices are sufficiently near one another
to permit access to the protected content.'' See, e.g., Receiver
Respondents Petition for Review at 18. Please address this question
both for infringement and the technical prong of domestic industry.
(6) Please discuss whether the Commission should apply the
America Invents Act (``AIA'') or pre-AIA statute in evaluating
Respondents' validity challenges and in determining the proper
priority date.
(7) If the Commission determines that the ID, in addressing
domestic industry, properly considered labor investments only for
2020 (see ID at 143-149):
a. What is the proper allocation percentage that should be
applied? Please support your argument with citations to record
evidence.
b. Can data on one year of investments support the significance
of an industry that is already established? Please support your
argument with reference to the statute and any relevant Commission
and judicial precedent.
The parties are invited to brief only the discrete issues requested
above. 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, inter alia, (1) an exclusion 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 (Dec. 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
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 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, the public interest, and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested to provide the HTSUS subheadings under
which the accused products are imported, and to supply the
identification information for all known importers of the products at
issue in this investigation. The initial written submissions and
proposed remedial orders must be filed no later than close of business
on January 7, 2022. Reply submissions must be filed no later than the
close of business on January 14, 2022. Opening submissions are limited
to 60 pages. Reply submissions are limited to 35 pages. 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-1224) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary, (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly 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
[[Page 73318]]
personnel, solely for cybersecurity purposes. All contract personnel
will sign appropriate nondisclosure agreements. All nonconfidential
written submissions will be available for public inspection on EDIS.
The Commission extends the target date for completion of the
investigation to March 23, 2022.
The Commission vote for this determination took place on December
20, 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
part 210).
By order of the Commission.
Issued: December 20, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-27945 Filed 12-23-21; 8:45 am]
BILLING CODE 7020-02-P
