[Federal Register Volume 67, Number 124 (Thursday, June 27, 2002)]
[Notices]
[Pages 43338-43340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16243]



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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-450]


Certain Intergrated Circuits, Processes for Making Same, and 
Products Containing Same; Notice of Commission Decision to Review 
Portions of an Initial Determination Finding No Violation of Section 
337 of the Tariff Act of 1930

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review certain portions of a final initial 
determination (ID) of the presiding administrative law judge (ALJ) 
finding no violation of section 337 of the Tariff Act of 1930, as 
amended, in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Clara Kuehn, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3012. Hearing-impaired 
persons are advised that information on this matter can be obtained by 
contacting the Commission's TDD terminal on 202-205-1810. General 
information concerning the Commission may also be obtained by accessing 
its Internet server (http://www.usitc.gov.)
    Copies of the public version of the ALJ's ID and all other 
nonconfidential documents filed in connection with this investigation 
are or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, D.C. 
20436, telephone 202-205-2000.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
by notice published in the Federal Register on March 6, 2001. 66 FR 
13567 (2001). The complainants are United Microelectronics Corporation, 
Hsinchu City, Taiwan; UMC Group (USA), Sunnyvale, CA; and United 
Foundry Service, Inc., Hopewell Junction, NY. Id. The Commission named 
two respondents, Silicon Integrated Systems Corp., Hsinchu City, 
Taiwan, and Silicon Integrated Systems Corporation, Sunnyvale, CA 
(collectively, ``SiS''). Id. The complaint, as supplemented, alleged 
violations of section 337 in the importation, the sale for importation, 
and the sale within the United States after importation of certain 
integrated circuits and products containing same by reason of 
infringement of claims 1, 2, and 8 of U.S. Letters Patent 5,559,352 
(``the '352 patent'') and claims 1, 3-16, and 19-21 of U.S. Letters 
Patent 6,117,345 (``the '345 patent''). Id.
    On November 2, 2001, the presiding ALJ issued an ID (ALJ Order No. 
15) granting complainants' motion for summary determination on the 
issue of importation and denying respondents' motion for summary 
determination of lack of importation. That ID was not reviewed by the 
Commission. A tutorial session was held on November 5, 2001, and an 
evidentiary hearing was held from November 7, 2001, through November 
16, 2001, and from December 10, 2001, through December 12, 2001.
    The ALJ issued his final ID on May 6, 2002, concluding that there 
was no violation of section 337. With respect to the '352 patent, the 
ALJ found that: complainants have not established that the domestic 
industry requirement is met; none of respondents' accused devices 
practice any asserted claim of the '352 patent literally or under the 
doctrine of equivalents; and claims 1 and 2 of the '352 patent are 
invalid as anticipated under 35 U.S.C. 102 and claim 8 of the '352 
patent is invalid for obviousness under 35 U.S.C. 103. The ALJ found 
each of the '345 patent claims listed in the notice of investigation, 
i.e., claims 1, 3-16, 19-20, and 21, invalid as anticipated by and made 
obvious by certain prior art. The ALJ stated that, in their post-
hearing filings, complainants asserted only claims 1, 3-5, 9, 11-13, 
and 20-21 of the '345 patent against respondents. He found that, if 
valid, each of the asserted claims of the '345 patent, i.e., claims 1, 
3-5, 9, 11-13, and 20-21, is literally infringed by SiS's existing (or 
old) SiON manufacturing process, but that respondents' new 
N2O process does not infringe any asserted claim of the '345 
patent. The ALJ further found that a domestic industry exists with 
respect to the '345 patent. On May 13, 2002, the ALJ issued his 
recommended determination on remedy and bonding.
    On May 17, 2002, complainants and the Commission investigative 
attorney (``IA'') petitioned for review of the subject ID, and 
respondents filed a contingent petition for review. On May 24, 2002, 
complainants, the IA, and respondents filed responses.
    Having examined the record in this investigation, including the ID, 
the petitions for review, and the responses thereto, the Commission has 
determined to review and clarify that the ALJ found claim 13 of the 
'345 patent made obvious, but not anticipated, by the Tobben patent. 
The Commission has also determined to review:
    (1) the ALJ's findings and conclusions of law regarding the '352 
patent with respect to infringement of the asserted claims and domestic 
industry under the doctrine of equivalents;
    (2) the ALJ's finding that respondents' old E5 model ESD transistor 
does not infringe any asserted claim of the '352 patent, either 
literally or equivalently;
    (3) the ALJ's claim construction of the limitations ``an ESD 
protection device'' (claims 1, 2, and 8 of the '352 patent), ``a gate'' 
(claims 1 and 2), ``gates'' (claim 8), and ``source/drain regions * * * 
with each source/drain region comprising'' (claims 1, 2, and 8), and 
the ALJ's invalidity, domestic injury, and infringement findings and 
conclusions of law with respect to those limitations;
    (4) the ALJ's finding that claim 8 of the '352 patent is invalid as 
made obvious by a combination of prior art references;
    (5) whether the economic prong of the domestic industry requirement 
is met with respect to the '352 patent;
    (6) the ALJ's findings that the ``second antireflective coating'' 
(claim 1 and asserted dependent claims 3-8 of the '345 patent) and 
``cap layer'' (claims 9-16, 19-20, and 21 of the '345 patent) are 
disclosed in the Tobben patent, and consequently (a) the ALJ's findings 
with respect to etching the second antireflective coating or cap layer 
(claims 4 and 12), (b) the ALJ's ultimate finding that the Tobben 
patent anticipates claims 1, 3-16, 19-20, and 21 of the '345 patent, 
and (c) the ALJ's conclusion that claim 13 is made obvious by the 
Tobben patent and other prior art;
    (7) the ALJ's conclusion that claim 13 of the '345 patent is 
invalid as obvious in light of the Tobben patent; and
    (8) the ALJ's conclusion that claims 1, 3-16, 19-20, and 21 of the 
'345 patent are invalid as made obvious by the Abernathey patent in 
combination with the Pan, Yagi, and/or Yota publications.
    The Commission has determined not to review the remainder of the 
ID, including the ID's conclusions and findings of fact with respect to 
whether the Tobben patent is prior art to the '345 patent, infringement 
of the asserted claims of the '345 patent, domestic industry concerning 
the '345 patent, and failure to disclose the best mode of practicing 
the invention of the '345 patent.
    On review, the Commission requests briefing based on the 
evidentiary record on all issues under review and is particularly 
interested in receiving answers to the following questions, with all 
answers cited to the evidentiary record:

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    1. Have complainants established the economic prong of the domestic 
industry requirement with respect to the '352 patent?
    2. Should the term ``an ESD protection device'' in claims 1, 2, and 
8 of the '352 patent be construed to require a protection device that 
is separate and apart from the circuit it protects?
    3. Assuming that the term ``a gate'' refers to a single, particular 
gate for a specific FET (but without excluding multiple-FET ESD 
protection devices) (ID at 14-15), should the limitation ``source/drain 
regions * * * with each source/drain region comprising'' be construed 
as excluding from the claimed ESD protection device source/drain 
regions that lack one or more of the three implants (i.e., the ``first 
lightly implanted region,'' ``heavier implanted region,'' and ``second 
lightly implanted region'')? In responding to this question please 
address the ``open'' transition in claim 1 of the '352 patent (``An ESD 
protection device * * * comprising'').
    4. In light of your answers to questions 2 and 3, are claims 1, 2, 
or 8 of the '352 patent infringed (literally or under the doctrine of 
equivalents)? Have complainants established the technical prong of the 
domestic industry requirement with respect to the '352 patent? In your 
response, please address Festo Corp. v. Shoketsu Kinzoku Kogyo 
Kabushiki Co., 122 S.Ct. 1831 (2002).
    5. Does respondents' old E5 model ESD transistor infringe any 
asserted claim of the '352 patent? In your response, please address 
Symbol Technologies, Inc. v. Opticon, Inc., 935 F.2d 1569 (Fed. Cir. 
1991).
    6. In light of your answers to questions 2 and 3, are claims 1, 2, 
or 8 of the '352 patent invalid?
    7. In light of the ALJ's construction of the term ``antireflective 
coating'' to require, inter alia, ``an antireflective effect * * *. 
whether through absorption or interference * * * significant to the 
purposes of the invention'' (ID at 79), does the Tobben patent's 
planarization layer disclose the ``second antireflective coating'' of 
claim 1 (and dependent claims 3-8) of the '345 patent?
    8. In light of the ALJ's construction of the term ``cap layer'' of 
independent claims 9 and 21 of the '345 patent (ID at 119-20), does the 
Tobben patent disclose a cap layer that acts as either (a) an 
``antireflective coating'' or (b) a protector for the top corners of 
metal wiring lines during the HDPCVD process? With respect to (a), 
above, please address column 3, lines 6-20 of the Tobben patent.
    9. Assuming that claim 9 of the '345 patent is anticipated by the 
Tobben patent, is claim 13 obvious?
    10. For purposes of obviousness under 35 U.S.C. 103, does the 
Abernathey patent teach one of ordinary skill in the relevant art a 
barrier layer that serves as an ``antireflective coating''? In your 
response please address how one of ordinary skill in the art would 
understand the thickness of the silicon dioxide barrier layer disclosed 
in the Abernathey patent.
    11. Was the issue of the publication dates of the Yota, Pan, and 
Yagi references (see complainants' petition for review at 77) raised 
before the ALJ?
    In connection with the final disposition of this investigation, the 
Commission may issue (1) an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
cease and desist orders that could result in 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 that either 
are adversely affecting it or are likely to do so. For background 
information, see the Commission Opinion, In the Matter of Certain 
Devices for Connecting Computers via Telephone Lines, Inv. No. 337-TA-
360. 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 President has 60 
days to approve or disapprove the Commission's action. During this 
period, the subject articles would be entitled to enter the United 
States under a bond, in an amount to be 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.
    On May 6, 2002, the ALJ issued Order No. 24 granting in part 
complainants' September 13, 2001, motion for sanctions. Pursuant to 
rule 210.25(d) of the Commission's Rules of Practice and Procedure, 19 
CFR 210.25(d), the Commission has specified below the schedule for the 
filing of any petitions appealing Order No. 24 and the responses 
thereto.

Written Submissions

    The parties to the investigation are requested to file written 
submissions on the issues under review. The submission should be 
concise and thoroughly referenced to the record in this investigation, 
including references to exhibits and testimony. Additionally, the 
parties to the investigation, interested government agencies, and any 
other interested persons are encouraged to file written submissions on 
the issues of remedy, the public interest, and bonding. Such 
submissions should address the ALJ's May 13, 2002, recommended 
determination on remedy and bonding. Complainant and the Commission 
investigative attorney are also requested to submit proposed remedial 
orders for the Commission's consideration. The written submissions and 
proposed remedial orders must be filed no later than the close of 
business on July 5, 2002. Reply submissions must be filed no later than 
the close of business on July 12, 2002. No further submissions will be 
permitted unless otherwise ordered by the Commission.
    Any petitions appealing Order No. 24 must be filed no later than 
close of business on July 26, 2002. Reply submissions must be filed no 
later than the close of business on August 2, 2002.
    Persons filing written submissions must file with the Office of the 
Secretary the original and 14 true copies thereof on or before the 
deadlines stated above. Any person desiring to submit a document (or 
portion thereof) 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 201.6. Documents for which confidential treatment 
is granted by the Commission will be treated accordingly. All 
nonconfidential written submissions

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will be available for public inspection at the Office of the Secretary.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.25 
and 210.42-.45 of the Commission's Rules of Practice and Procedure (19 
CFR 210.25, 210.42-.45).

    Issued: June 21, 2002.

    By order of the Commission.
Marilyn R. Abbott,
Secretary.
[FR Doc. 02-16243 Filed 6-26-02; 8:45 am]
BILLING CODE 7020-02-P