[Federal Register Volume 70, Number 124 (Wednesday, June 29, 2005)]
[Notices]
[Pages 37431-37432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12846]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-512]


In the Matter of Certain Light-Emitting Diodes and Products 
Containing Same; Notice of Commission Determination to Review a Final 
Determination on Violation of Section 337; Schedule for Filing Written 
Submissions on the Issues Under Review and on Remedy, the Public 
Interest, and Bonding

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 review a portion of the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on May 10, 2005, regarding whether there is a violation of 
section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, 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, or Michelle 
Walters, Esq., Office of the General Counsel, U.S. International Trade 
Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 
708-5468. Copies of non-confidential 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 (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this patent-based 
section 337 investigation based on a complaint filed by Osram GmbH and 
Osram Opto Semiconductors GmbH, both of Germany (collectively, 
``Osram''). 69 FR 32609 (June 10, 2004). In the complaint, as 
supplemented and amended, Osram alleged violations of section 337 of 
the Tariff Act of 1930 in the importation of certain light-emitting 
diodes and products containing the same by reason of infringement of 
United States Patent Nos. 6,066,861, 6,277,301, 6,613,247, 6,245,259, 
6,592,780 (collectively, the ``Particle Size Patents''), 6,576,930 (the 
``930 patent''), 6,376,902, 6,469,321, 6,573,580 (collectively, the 
``Lead Frame Patents''), and 6,716,673 (the ``673 patent''). The 
complaint, as subsequently amended, named three respondents: Dominant 
Semiconductors Sdn. Bhd. (``Dominant''), American Opto Plus, Inc. 
(``AOP''), and American Microsemiconductor, Inc. (``AMS''). The 
Commission has terminated the investigation as to AOP and AMS based on 
settlement agreements.
    On May 10, 2005, the ALJ issued his final ID finding a violation of 
section 337 with regard to the `673 patent and containing his 
recommended determination on remedy and bonding. He found no violation 
of section 337 with respect to the nine other patents asserted by 
Osram. Specifically, he found that the asserted claims of the Particle 
Size Patents are invalid for indefiniteness, that the asserted claims 
of the `930 patent and the Lead Frame Patents are not infringed, and 
that the domestic industry requirement was not met for the `930 patent. 
Osram and the Commission investigative attorney (``IA'' filed petitions 
for review of the ALJ's final ID. Dominant filed a response in 
opposition to the petitions from Osram and the IA. The IA filed a 
response to Osram's petition. Osram filed a motion for leave to file a 
reply to Dominant's response to its petition for review.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined (1) not to grant Osram's motion for leave 
to file a reply; (2) not to review the ALJ's determination of violation 
with respect to the `673 patent; and (3) to review the ALJ's findings 
and conclusions regarding the Particle Size Patents, the `930 patent, 
and the Lead Frame Patents.
    In connection with its review, the Commission is particularly 
interested in responses to the following questions:
    1. With respect to the Particle Size Patents, state your position 
with regard to whether the disputed limitation, ``mean grain diameter 
d50,'' can be construed and, if so, what the appropriate 
construction is. Identify the intrinsic evidence (and, if appropriate, 
extrinsic evidence) upon which you rely. Your response should 
separately discuss the meaning of the words ``mean'' and 
``d50.''

[[Page 37432]]

    2. With respect to the `930 patent, provide your claim construction 
of the phrase ``path length,'' including an analysis of any intrinsic 
evidence upon which you rely.
    3. With respect to the Lead Frame Patents, provide your claim 
construction of the phrase ``starting from,'' including an analysis of 
any intrinsic and/or extrinsic evidence upon which you rely.
    4. With respect to the Lead Frame Patents, given that the ALJ 
construed the term ``lead frame'' to exclude glue dots, can the glue 
dot at issue in the accused device be considered part of the alleged 
equivalent in assessing infringement under the doctrine of equivalents?
    5. Assuming the answer to the previous question is ``yes,'' are the 
three ground leads plus the glue dot at issue in the accused device 
equivalent to the claimed external connections, especially with respect 
to the limitation ``starting from said chip carrier part run toward the 
outside in a stellate form?'' (You should discuss the ``function, way, 
result'' test in your analysis.)
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue one or more cease and desist orders that could result in the 
respondent being required to cease and desist from engaging in unfair 
acts in the importation and sale of such articles. Accordingly, the 
Commission is interested in receiving written submissions that address 
the form of remedy, if any, that should be ordered. If a party seeks 
exclusion of an article from entry into the United States for purposes 
other than entry for consumption, the party should so indicate and 
provide information establishing that activities involving other types 
of entry either are adversely affecting it or likely to do so. For 
background, see In the Matter of Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 
(December 1994) (Commission Opinion).
    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 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.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues identified in this notice. 
The written submissions should be concise and should thoroughly 
reference the record. 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 May 10, 2005, 
recommended determination by the ALJ on remedy and bonding. 
Complainants and the Commission investigative attorney are also 
requested to submit proposed remedial orders for the Commission's 
consideration. Complainants are also requested to state the dates that 
the patents expire and the HTSUS numbers under which the accused 
products are imported. The written submissions and proposed remedial 
orders must be filed no later than close of business on July 8, 2005. 
Reply submissions must be filed no later than the close of business on 
July 15, 2005. No further submissions on these issues will be permitted 
unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the office of the Secretary. Any person desiring to submit a document 
to the Commission in confidence must request confidential treatment 
unless the information has already been granted such treatment during 
the proceedings. All such requests should be directed to the Secretary 
of the Commission and must include a full statement of the reasons why 
the Commission should grant such treatment. See 19 CFR 210.6. Documents 
for which confidential treatment by the Commission is sought will be 
treated accordingly. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary.
    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 section 210.42-46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).

    By order of the Commission.

    Issued: June 24, 2005.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-12846 Filed 6-28-05; 8:45 am]
BILLING CODE 7020-02-M