Certain Wearable Electronic Devices With ECG Functionality and Components Thereof; Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance and Suspension of a Limited Exclusion Order and a Cease and Desist Order; Termination of the Investigation, 80569-80571 [2022-28409]
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Federal Register / Vol. 87, No. 250 / Friday, December 30, 2022 / Notices
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sharing software, and associated
components thereof’’;
(3) Pursuant to Commission Rule
210.50(b)(l), 19 CFR 210.50(b)(1), the
presiding administrative law judge shall
take evidence or other information and
hear arguments from the parties or other
interested persons with respect to the
public interest in this investigation, as
appropriate, and provide the
Commission with findings of fact and a
recommended determination on this
issue, which shall be limited to the
statutory public interest factors set forth
in 19 U.S.C. 1337(d)(l), (f)(1), (g)(1);
(4) For the purpose of the
investigation so instituted, the following
are hereby named as parties upon which
this notice of investigation shall be
served:
(a) The complainants are:
Advanced Ground Information Systems,
Inc., 92 Lighthouse Dr., Jupiter, FL
33469
AGIS Software Development LLC, 100
West Houston Street, Marshall, TX
75671
(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:
Google LLC, 1600 Amphitheatre
Parkway, Mountain View, CA 94043
Samsung Electronics, Co., Ltd., 12
Samsung-Ro, Maetan-3dong,
Yeongtong-gu, Suwon, 443–742,
Republic of Korea
Samsung Electronics America, Inc., 85
Challenger Rd., Ridgefield Park, New
Jersey 07660
OnePlus Technology (Shenzhen) Co.,
Ltd., 18F, Tairan Building, Block C,
Tairan 8th Road, Chgongmiao, Futian
District, Shenzhen, Guangdong
518040, China
TCL Technology Group Corporation,
22/F, TCL Technology, Building, No.
17, Huifeng 3rd Road, Zhongkai HighTech Development District, Huizhou,
Guangdong, China 516006
TCL Electronics Holdings Limited, 7th
Floor, Building 22E, 22 Science Park
East Avenue, Hong Kong Science
Park, Hong Kong
TCL Communication Technology
Holdings, Limited, 5/F, Building 22E,
22 Science Park East Avenue, Hong
Kong Science Park, Shatin, New
Territories, Hong Kong
TCT Mobile (US) Inc., 25 Edelman,
Suite 200, Irvine, CA 92618
Lenovo Group Ltd., 6 Chuang ye Road,
Haidian District, Beijing 100085,
China
Lenovo (United States) Inc., 1009 Think
Place, Building One, Morrisville, NC
27560
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Motorola Mobility LLC, 222 W
Merchandise Mart Plaza, Suite 1800,
Chicago, IL 60654
HMD Global, Karaportti 2, FIN–02610,
Espoo, Finland
HMD Global OY, Bertel Jungin aukio 9,
02600, Espoo, Finland
HMD America, Inc., 1200 Brickell Ave.,
Suite 510, Miami, FL 33131
Sony Corporation, 1–7–1 Konan Minatoku, Tokyo, 108–0075, Japan
Sony Mobile Communications, Inc., 4–
12–3 Higashi-Shinagawa, Shinagawaku, Tokyo, 140–0002, Japan
ASUSTek Computer Inc., No. 15, Li-Te
Rd., Beitou Dist., Taipei 112, Taiwan
ASUS Computer International, 48720
Kato Rd., Fremont, CA 94538
BLU Products, 10814 NW 33rd Street,
Doral, FL 33172
Panasonic Corporation, 1006 Oaza
Kadoma-shi, Kadoma 571–8501,
Osaka, Japan
Panasonic Corporation of North
America, 1 Panasonic Way, Secaucus,
New Jersey 07094
Kyocera Corporation, 6 Takeda
Tobadono-cho, Fushmi-ku, Kyoto,
Japan 612–8501
Xiaomi Corporation, Maples Corporate
Services Limited, P.O. Box 309,
Ugland House, Grand Cayman, KY1–
1104, Cayman Islands
Xiaomi H.K. Ltd., Unit 806, Tower 2 8/
F, Cheung Sha Wan Plaza, 833
Cheung Sha Wan Road, Kowloon City,
Hong Kong
Xiaomi Communications Co., Ltd.,
Xiaomi Office Building, 68 Qinghe
Middle Street, Haidian District,
Beijing, China 100085
Xiaomi Inc., Xiaomi Office Building, 68
Qinghe Middle Street, Haidian
District, Beijing, China 100085
(c) The Office of Unfair Import
Investigations, U.S. International Trade
Commission, 500 E Street SW, Suite
401, Washington, DC 20436; and
(5) For the investigation so instituted,
the Chief Administrative Law Judge,
U.S. International Trade Commission,
shall designate the presiding
Administrative Law Judge.
Responses to the complaint, as
supplemented, and the notice of
institution 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
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80569
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
and desist order or both directed against
the respondent.
By order of the Commission.
Issued: December 22, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022–28408 Filed 12–29–22; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1266]
Certain Wearable Electronic Devices
With ECG Functionality and
Components Thereof; Notice of the
Commission’s Final Determination
Finding a Violation of Section 337;
Issuance and Suspension of a Limited
Exclusion Order and a Cease and
Desist Order; Termination of the
Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined that there is a violation of
section 337 in the above-captioned
investigation. The Commission has
further determined to issue a limited
exclusion order and a cease and desist
order and to set a bond in the amount
of $2 per unit of covered articles
imported or sold during the period of
Presidential review. The enforcement of
these orders, including the bond
provision, is suspended pending final
resolution of the U.S. Patent and
Trademark Office, Patent Trial and
Appeal Board’s (‘‘PTAB’’) Final Written
Decisions finding the asserted patent
claims unpatentable.
FOR FURTHER INFORMATION CONTACT:
Panyin A. Hughes, Office of the General
SUMMARY:
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Federal Register / Vol. 87, No. 250 / Friday, December 30, 2022 / Notices
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, telephone
(202) 205–1810.
SUPPLEMENTARY INFORMATION: On May
26, 2021, the Commission instituted this
investigation based on a complaint filed
by AliveCor, Inc. of Mountain View,
California (‘‘AliveCor’’). 86 FR 28382
(May 26, 2021). The complaint alleged
violations of section 337 based on the
importation into the United States, the
sale for importation, or the sale within
the United States after importation of
certain wearable electronic devices with
ECG functionality and components
thereof by reason of infringement of one
or more of claims 1–30 of U.S. Patent
No. 10,595,731 (‘‘the ’731 patent’’);
claims 1–23 of U.S. Patent No.
10,638,941 (‘‘the ’941 patent’’); and
claims 1–4, 6–14, 16–20 of U.S. Patent
No. 9,572,499 (‘‘the ’499 patent’’). Id.
The Commission’s notice of
investigation named Apple Inc. of
Cupertino, California (‘‘Apple’’) as the
sole respondent. The Office of Unfair
Import Investigations (‘‘OUII’’) is named
as a party in this investigation. Id.
On February 23, 2022, the ALJ issued
an initial determination granting
AliveCor’s motion to terminate the
investigation as to (1) claims 1–4, 6–14,
and 18–20 of the ’499 patent; (2) claims
2, 4, 6, 7, 11, 13, 14, and 17–30 of the
’731 patent; and (3) claims 1–11, 14, 15,
17, and 18 of the ’941 patent based upon
withdrawal of allegations from the
complaint as to those claims. Order No.
16 (Feb. 23, 2022), unreviewed by Notice
(Mar. 18, 2022).
On June 27, 2022, the ALJ issued the
final initial determination (‘‘ID’’) finding
a violation of section 337 as to the ’941
and ’731 patents, and no violation of
section 337 as to the ’499 patent. The ID
found that the parties do not contest
personal jurisdiction and that the
Commission has in rem jurisdiction
over the accused products. ID at 18. The
ID further found that the importation
requirement under 19 U.S.C.
1337(a)(1)(B) is satisfied. Id. (citing CX–
0904C (Apple stipulating that it imports
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the accused products into the United
States)). Regarding the ’941 patent, the
ID found that AliveCor has proven
infringement of the asserted claims,
claims 12, 13, 19, and 20–23, and that
Apple failed to show that any of the
asserted claims are invalid. Id. at 30–45,
60–98. For the ’731 patent, the ID found
that AliveCor has proven infringement
of the asserted claims, claims 1, 3, 5, 8–
10, 12, 15, and 16, but that Apple has
proven that claims 1, 8, 12, and 16 are
invalid for obviousness. Id. at 105–108,
113–127. For the ’499 patent, the ID
found that AliveCor failed to prove
infringement of the asserted claims,
claims 16 and 17, and that claim 17 is
invalid for lack of patentable subject
matter under 35 U.S.C. 101. Id. at 129–
138, 140–152. Finally, the ID found that
AliveCor has proven the existence of a
domestic industry that practices the
asserted patents as required by 19 U.S.C.
1337(a)(2). Id. at 152–183. The ID
included the ALJ’s recommended
determination on remedy and bonding
(‘‘RD’’). The RD recommended that,
should the Commission find a violation,
issuance of a limited exclusion order
and a cease and desist order would be
appropriate. ID/RD at 190–193. The RD
also recommended imposing no bond
for covered products imported during
the period of Presidential review. ID at
193–95.
On July 11, 2022, Apple filed a
petition for review of the ID, and
AliveCor filed a combined petition and
contingent petition for review of the ID.
On July 19, 2022, the private parties and
OUII’s investigative attorney filed
responses to the petitions.
On September 22, 2022, the
Commission determined to review the
final ID in part. 87 FR 58819–21 (Sept.
28, 2022). Specifically, the Commission
determined to review the final ID’s
invalidity findings, including patent
eligibility under 35 U.S.C. 101 and
obviousness under 35 U.S.C. 103, and
the economic prong of the domestic
industry requirement for all three
patents. Id. The Commission requested
briefing from the parties on certain
issues under review. The Commission
requested briefing from the parties,
interested government agencies, and
interested persons on remedy, the
public interest, and bonding. Id.
On October 6, 2022, the parties filed
initial submissions in response to the
Commission’s request for briefing. On
October 14, 2022, the parties filed reply
submissions. On October 21, 2022,
Apple moved for leave to file a sur-reply
to AliveCor’s reply submission. On
October 24, 2022, AliveCor filed an
opposition. OUII filed a response in
opposition on November 2, 2022.
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The Commission has determined to
deny Apple’s motion for leave to file a
sur-reply to AliveCor’s reply
submission.
On December 7, 2022, Apple filed an
emergency motion, asking ‘‘the
Commission to suspend any remedial
orders or, in the alternative, extend the
December 12, 2022 Target Date of its
Final Determination and stay all
proceedings prior to issuance of any
Final Determination pending final
resolution of any appeal of the PTAB’s
decisions’’ finding the asserted patent
claims unpatentable. Apple Emergency
Motion at 1. On December 9, 2022,
AliveCor filed an opposition to Apple’s
motion. On December 16, 2022, OUII
filed a response in support of Apple’s
motion, but only to the extent that any
remedy the Commission issues be
suspended pending appeal of the PTAB
decisions. OUII Reply to Emergency
Motion at 4.
Upon review of the parties’
submissions, the ID, the RD, evidence of
record, and public interest filings, the
Commission has determined that Apple
violated section 337 by reason of
importation and sale of articles that
infringe asserted claims 12, 13, and 19–
23 of the ’941 patent; and claims 1, 3,
5, 8–10, 12, 15, and 16 of the ’731
patent. Regarding the issues under
review, the Commission has determined
to affirm the ID’s economic prong of the
domestic industry findings with the
modifications described in the
accompanying Commission opinion.
Concerning invalidity, the Commission
has determined to affirm the ID’s patent
eligibility findings under 35 U.S.C. 101
as to one claim with modifications
explained in the Commission opinion
and reverse as to another; and to correct
the ID for not considering objective
indicia of non-obviousness for certain
asserted claims. For remedy, the
Commission has determined to issue a
limited exclusion order prohibiting
further importation of infringing
products and a cease and desist order
against Apple. The Commission has
determined that the public interest
factors do not counsel against issuing
remedial orders. The Commission has
determined that a bond in the amount
of $2 per unit of covered articles is
required for covered products imported
or sold during the period of Presidential
review.
The enforcement of these orders,
including the bond provision, is
suspended pending final resolution of
the PTAB’s Final Written Decisions
finding the asserted patent claims
unpatentable. See 35 U.S.C. 318(b);
Apple, Inc. v. AliveCor, Inc., IPR2021–
00971, Patent 10,595,731, Final Written
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Federal Register / Vol. 87, No. 250 / Friday, December 30, 2022 / Notices
Decision Determining All Challenged
Claims Unpatentable (Dec. 6, 2022);
Apple, Inc. v. AliveCor, Inc., IPR2021–
00972, Patent 10,638,941, Final Written
Decision Determining All Challenged
Claims Unpatentable (Dec. 6, 2022).
The Commission’s vote on this
determination took place on December
22, 2022.
The authority for the Commission’s
determination is contained in section
337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337), and in Part
210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: December 22, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022–28409 Filed 12–29–22; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
[OMB Number 1190–0018]
Agency Information Collection
Activities; Proposed eCollection;
eComments Requested; Extension of a
Currently Approved Collection;
Immigration-Related Unfair
Employment Practices Charge Form
(IER–1)
Civil Rights Division,
Department of Justice.
ACTION: 30-Day notice.
AGENCY:
The Civil Rights Division,
Department of Justice, will be
submitting the following information
collection request to the Office of
Management and Budget for review and
approval in accordance with the
Paperwork Reduction Act of 1995.
DATES: The purpose of this notice is to
allow for an additional 30 days for
public comment until January 30, 2023.
FOR FURTHER INFORMATION CONTACT: If
you have comments 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 Alberto Ruisanchez, Deputy
Special Counsel, USDOJ–CRT–OSC, 950
Pennsylvania Avenue NW–4CON,
Washington, DC 20530 or via phone at
202–305–1291. Written comments and/
or suggestions can also be directed to
the Office of Management and Budget,
Office of Information and Regulatory
Affairs, Attention Department of Justice
Desk Officer, Washington, DC 20503 or
sent to OIRA_submissions@
omb.eop.gov.
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SUMMARY:
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17:08 Dec 29, 2022
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Written
comments and/or suggestions are
requested from the public and affected
agencies concerning the proposed
collection of information. Your
comments should address one or more
of the following four points:
• Evaluate whether the collection of
information is necessary for the proper
performance of the function of the
agency, including whether the
information will have practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
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,
mechanical, or other technological
collection techniques or other forms of
information technology.
SUPPLEMENTARY INFORMATION:
Overview of This Information
Collection:
1. Type of Information Collection:
Extension of Currently Approved
Collection.
2. The Title of the Form/Collection:
Title of the Form/Collection: IER Charge
Form.
3. Agency form number, if any, and
agency component sponsoring the
collection:
Agency form number: Form IER–1.
Component Sponsor: Civil Rights
Division, Department of Justice.
4. Affected public who will be asked
to respond, as well as a brief abstract:
Primary: The Immigrant and Employee
Rights Section (IER) enforces the antidiscrimination provision (§ 274B) of the
Immigration and Nationality Act (INA),
8 U.S.C. 1324b. The statute prohibits: (1)
citizenship or immigration status
discrimination in hiring, firing, or
recruitment or referral for a fee, (2)
national origin discrimination in hiring,
firing, or recruitment or referral for a
fee, (3) unfair documentary practices
during the employment eligibility
verification process (Form I–9 and EVerify), and (4) retaliation or
intimidation for asserting rights covered
by the statute. IER, within the
Department’s Civil Rights Division,
investigates and, where reasonable
cause is found, litigates charges alleging
discrimination. IER also initiates
independent investigations, at times
based on information developed during
individual charge investigations.
Independent investigations normally
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80571
involve alleged discriminatory policies
that potentially affect many employees
or applicants. These investigations may
result in complaints alleging a pattern or
practice of discriminatory activity. If the
Department lacks jurisdiction over a
particular charge but believes another
agency has jurisdiction over the claim,
IER forwards the charge to the
applicable Federal, state or local agency
for any action deemed appropriate.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: It is estimated that 320
individuals will complete each form
annually; each response will be
completed in approximately 30 minutes.
6. An estimate of the total public
burden (in hours) associated with the
collection: There are an estimated 160
total annual burden hours associated
with this collection.
If additional information is required
contact: Robert Houser, Department
Clearance Officer, Policy and Planning
Staff, Justice Management Division,
United States Department of Justice,
Two Constitution Square, 145 N Street
NE, Suite 3E.206, Washington, DC
20530.
Dated: December 22, 2022.
Robert Houser,
Department Clearance Officer, Policy and
Planning Staff, Office of the Chief Information
Officer, U.S. Department of Justice.
[FR Doc. 2022–28209 Filed 12–29–22; 8:45 am]
BILLING CODE 4410–13–P
NUCLEAR REGULATORY
COMMISSION
[NRC–2022–0001]
Sunshine Act Meetings
Weeks of January 2, 9,
16, 23, 30, February 6, 2023. The
schedule for Commission meetings is
subject to change on short notice. The
NRC Commission Meeting Schedule can
be found on the internet at: https://
www.nrc.gov/public-involve/publicmeetings/schedule.html.
PLACE: The NRC provides reasonable
accommodation to individuals with
disabilities where appropriate. If you
need a reasonable accommodation to
participate in these public meetings or
need this meeting notice or the
transcript or other information from the
public meetings in another format (e.g.,
braille, large print), please notify Anne
Silk, NRC Disability Program Specialist,
at 301–287–0745, by videophone at
240–428–3217, or by email at
Anne.Silk@nrc.gov. Determinations on
TIME AND DATE:
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]]>Agencies
[Federal Register Volume 87, Number 250 (Friday, December 30, 2022)]
[Notices]
[Pages 80569-80571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28409]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1266]
Certain Wearable Electronic Devices With ECG Functionality and
Components Thereof; Notice of the Commission's Final Determination
Finding a Violation of Section 337; Issuance and Suspension of a
Limited Exclusion Order and a Cease and Desist Order; Termination of
the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined that there is a violation of
section 337 in the above-captioned investigation. The Commission has
further determined to issue a limited exclusion order and a cease and
desist order and to set a bond in the amount of $2 per unit of covered
articles imported or sold during the period of Presidential review. The
enforcement of these orders, including the bond provision, is suspended
pending final resolution of the U.S. Patent and Trademark Office,
Patent Trial and Appeal Board's (``PTAB'') Final Written Decisions
finding the asserted patent claims unpatentable.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General
[[Page 80570]]
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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On May 26, 2021, the Commission instituted
this investigation based on a complaint filed by AliveCor, Inc. of
Mountain View, California (``AliveCor''). 86 FR 28382 (May 26, 2021).
The complaint alleged violations of section 337 based on the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain wearable
electronic devices with ECG functionality and components thereof by
reason of infringement of one or more of claims 1-30 of U.S. Patent No.
10,595,731 (``the '731 patent''); claims 1-23 of U.S. Patent No.
10,638,941 (``the '941 patent''); and claims 1-4, 6-14, 16-20 of U.S.
Patent No. 9,572,499 (``the '499 patent''). Id. The Commission's notice
of investigation named Apple Inc. of Cupertino, California (``Apple'')
as the sole respondent. The Office of Unfair Import Investigations
(``OUII'') is named as a party in this investigation. Id.
On February 23, 2022, the ALJ issued an initial determination
granting AliveCor's motion to terminate the investigation as to (1)
claims 1-4, 6-14, and 18-20 of the '499 patent; (2) claims 2, 4, 6, 7,
11, 13, 14, and 17-30 of the '731 patent; and (3) claims 1-11, 14, 15,
17, and 18 of the '941 patent based upon withdrawal of allegations from
the complaint as to those claims. Order No. 16 (Feb. 23, 2022),
unreviewed by Notice (Mar. 18, 2022).
On June 27, 2022, the ALJ issued the final initial determination
(``ID'') finding a violation of section 337 as to the '941 and '731
patents, and no violation of section 337 as to the '499 patent. The ID
found that the parties do not contest personal jurisdiction and that
the Commission has in rem jurisdiction over the accused products. ID at
18. The ID further found that the importation requirement under 19
U.S.C. 1337(a)(1)(B) is satisfied. Id. (citing CX-0904C (Apple
stipulating that it imports the accused products into the United
States)). Regarding the '941 patent, the ID found that AliveCor has
proven infringement of the asserted claims, claims 12, 13, 19, and 20-
23, and that Apple failed to show that any of the asserted claims are
invalid. Id. at 30-45, 60-98. For the '731 patent, the ID found that
AliveCor has proven infringement of the asserted claims, claims 1, 3,
5, 8-10, 12, 15, and 16, but that Apple has proven that claims 1, 8,
12, and 16 are invalid for obviousness. Id. at 105-108, 113-127. For
the '499 patent, the ID found that AliveCor failed to prove
infringement of the asserted claims, claims 16 and 17, and that claim
17 is invalid for lack of patentable subject matter under 35 U.S.C.
101. Id. at 129-138, 140-152. Finally, the ID found that AliveCor has
proven the existence of a domestic industry that practices the asserted
patents as required by 19 U.S.C. 1337(a)(2). Id. at 152-183. The ID
included the ALJ's recommended determination on remedy and bonding
(``RD''). The RD recommended that, should the Commission find a
violation, issuance of a limited exclusion order and a cease and desist
order would be appropriate. ID/RD at 190-193. The RD also recommended
imposing no bond for covered products imported during the period of
Presidential review. ID at 193-95.
On July 11, 2022, Apple filed a petition for review of the ID, and
AliveCor filed a combined petition and contingent petition for review
of the ID. On July 19, 2022, the private parties and OUII's
investigative attorney filed responses to the petitions.
On September 22, 2022, the Commission determined to review the
final ID in part. 87 FR 58819-21 (Sept. 28, 2022). Specifically, the
Commission determined to review the final ID's invalidity findings,
including patent eligibility under 35 U.S.C. 101 and obviousness under
35 U.S.C. 103, and the economic prong of the domestic industry
requirement for all three patents. Id. The Commission requested
briefing from the parties on certain issues under review. The
Commission requested briefing from the parties, interested government
agencies, and interested persons on remedy, the public interest, and
bonding. Id.
On October 6, 2022, the parties filed initial submissions in
response to the Commission's request for briefing. On October 14, 2022,
the parties filed reply submissions. On October 21, 2022, Apple moved
for leave to file a sur-reply to AliveCor's reply submission. On
October 24, 2022, AliveCor filed an opposition. OUII filed a response
in opposition on November 2, 2022.
The Commission has determined to deny Apple's motion for leave to
file a sur-reply to AliveCor's reply submission.
On December 7, 2022, Apple filed an emergency motion, asking ``the
Commission to suspend any remedial orders or, in the alternative,
extend the December 12, 2022 Target Date of its Final Determination and
stay all proceedings prior to issuance of any Final Determination
pending final resolution of any appeal of the PTAB's decisions''
finding the asserted patent claims unpatentable. Apple Emergency Motion
at 1. On December 9, 2022, AliveCor filed an opposition to Apple's
motion. On December 16, 2022, OUII filed a response in support of
Apple's motion, but only to the extent that any remedy the Commission
issues be suspended pending appeal of the PTAB decisions. OUII Reply to
Emergency Motion at 4.
Upon review of the parties' submissions, the ID, the RD, evidence
of record, and public interest filings, the Commission has determined
that Apple violated section 337 by reason of importation and sale of
articles that infringe asserted claims 12, 13, and 19-23 of the '941
patent; and claims 1, 3, 5, 8-10, 12, 15, and 16 of the '731 patent.
Regarding the issues under review, the Commission has determined to
affirm the ID's economic prong of the domestic industry findings with
the modifications described in the accompanying Commission opinion.
Concerning invalidity, the Commission has determined to affirm the ID's
patent eligibility findings under 35 U.S.C. 101 as to one claim with
modifications explained in the Commission opinion and reverse as to
another; and to correct the ID for not considering objective indicia of
non-obviousness for certain asserted claims. For remedy, the Commission
has determined to issue a limited exclusion order prohibiting further
importation of infringing products and a cease and desist order against
Apple. The Commission has determined that the public interest factors
do not counsel against issuing remedial orders. The Commission has
determined that a bond in the amount of $2 per unit of covered articles
is required for covered products imported or sold during the period of
Presidential review.
The enforcement of these orders, including the bond provision, is
suspended pending final resolution of the PTAB's Final Written
Decisions finding the asserted patent claims unpatentable. See 35
U.S.C. 318(b); Apple, Inc. v. AliveCor, Inc., IPR2021-00971, Patent
10,595,731, Final Written
[[Page 80571]]
Decision Determining All Challenged Claims Unpatentable (Dec. 6, 2022);
Apple, Inc. v. AliveCor, Inc., IPR2021-00972, Patent 10,638,941, Final
Written Decision Determining All Challenged Claims Unpatentable (Dec.
6, 2022).
The Commission's vote on this determination took place on December
22, 2022.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: December 22, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-28409 Filed 12-29-22; 8:45 am]
BILLING CODE 7020-02-P
