[Federal Register Volume 68, Number 230 (Monday, December 1, 2003)]
[Notices]
[Pages 67214-67215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29808]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-497]


In the Matter of Certain Universal Transmitters for Garage Door 
Openers; Notice of Commission Determination To Affirm Initial 
Determination Denying Temporary Relief

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to affirm the presiding administrative law 
judge's initial determination finding subject matter jurisdiction and 
denying temporary relief in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Wayne Herrington, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3090. Copies of the 
Commission's order, the public version of the administrative law 
judge's (ALJ's) initial determination (ID) on temporary relief, 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, DC 
20436, telephone 202-205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server 
(http://www.usitc.gov). The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information 
on this matter can be obtained by contacting the Commission's TDD 
terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on August 26, 2003, based on a complaint filed by The Chamberlain 
Group, Inc. (``Chamberlain'') of Elmhurst, Illinois. 68 FR 51301 
(August 26, 2003). The complaint, as supplemented, alleged violations 
of section 337 of the Tariff Act of 1930 in the importation into the 
United States, sale for importation, and sale within the United States 
after importation of certain universal transmitters for garage door 
openers by reason of infringement of claims 1-8 of U.S. Patent No. RE 
35,364 and claims 5-62 of U.S. Patent No. RE 37,986, and violation of 
section 1201(a)(2) of the Digital Millenium Copyright Act (``DMCA''), 
17 U.S.C. 1201(a)(2). The respondents named in the complaint and the 
Commission's notice of investigation are Skylink Technologies, Inc.; 
Capital Prospect, Ltd.; and Philip Tsui (collectively, 
``respondents'').
    At the same time that the Commission instituted the investigation, 
it provisionally accepted Chamberlain's motion for temporary relief 
which accompanied the complaint and which was based on the allegation 
that there was reason to believe that respondents were in violation of 
section 337. Chamberlain's motion for temporary relief was based solely 
on respondents' alleged violation of section 1201(a)(2) of the DMCA.
    On September 3, 2003, respondents filed their opposition to 
Chamberlain's motion for temporary relief. In that opposition, 
respondents argued, inter alia, that the Commission does not have 
jurisdiction under section 337 to consider an allegation of violation 
of the DMCA. On September 8, 2003, the ALJ invited separate briefing of 
this jurisdictional issue.
    On September 15, 2003, the respondents requested leave of the ALJ 
to file a motion for summary determination on the substantive question 
of whether respondents are in violation of section 1201(a)(2) of the 
DMCA, to waive the temporary relief hearing, and to suspend the 
temporary relief schedule. Respondents attached their proposed motion 
for summary determination to their request for leave. Respondents 
represented that if their motion for summary determination were denied 
by the ALJ, and if the Commission agreed with such denial, they would 
voluntarily enter into a consent order stipulation and proposed consent 
order attached as an exhibit to their request for leave. All parties 
supported respondents' request for leave and, on September 17, 2003, 
the ALJ granted that request in Order No. 6, treating the attached 
motion for summary determination as filed, setting a briefing schedule, 
and staying the temporary relief procedural schedule.
    On October 2, 2003, a non-party, Consumers Union, filed a motion 
for leave to file a submission in support of respondents' motion for 
summary determination, including its proposed submission with its 
motion for leave. Chamberlain opposed the motion; respondents and the 
Commission investigative attorney did not oppose the motion. On October 
15, 2003, the ALJ granted Consumers Union's motion for leave in Order 
No. 8 and treated its submission as filed.
    On October 10, 2003, Chamberlain filed a motion to strike 
respondents' arguments in their reply memorandum on summary 
determination concerning burden of proof or, in the alternative, to 
consider rebuttal argument in Chamberlain's papers filed in a parallel 
district court action. Both respondents and the Commission 
investigative attorney opposed Chamberlin's motion. The ALJ found that 
the issue of burden of proof was raised in respondents' summary 
determination motion and that the arguments in Chamberlain's district 
court filing were largely repetitive of those in its response to that 
motion. Accordingly, the ALJ denied Chamberlain's motion in its 
entirety on October 24, 2003, in Order No. 9.
    On November 4, 2004, the ALJ issued his ID on temporary relief, 
finding that (1) the Commission has subject matter jurisdiction over 
Chamberlain's DMCA claim, and (2) Chamberlain's allegation that 
respondents violate the DMCA has not been supported as a matter of law. 
He therefore concluded that there is no basis to issue temporary 
relief. The Commission understands the ALJ's second conclusion to be a 
determination that there is no reason to believe a violation of section 
337 exists with respect to Chamberlain's DMCA claim because it is 
unlikely that Chamberlain will succeed on the merits of that claim.
    Complainant Chamberlain filed comments with respect to the ID. 
Respondents and the Commission investigative attorney filed reply 
comments.
    Having examined the relevant record in this investigation, 
including the ALJ's ID, the written comments on the ID, and the replies 
thereto, the Commission determined to affirm the ID.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as

[[Page 67215]]

amended (19 U.S.C. 1337), and in Sec.  210.66 of the Commission's Rules 
of Practice and Procedure (19 CFR 210.66).

    Issued: November 24, 2003.
    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 03-29808 Filed 11-28-03; 8:45 am]
BILLING CODE 7020-02-P