[Federal Register Volume 70, Number 134 (Thursday, July 14, 2005)]
[Notices]
[Pages 40731-40732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13838]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-510]


In the Matter of Certain Systems for Detecting and Removing 
Viruses or Worms, Components Thereof, and Products Containing Same; 
Notice of Commission Decision Not To Review a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions on the Issues of 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 not to review a final initial determination 
(``ID'') issued by the presiding administrative law judge (``ALJ'') in 
the above-captioned investigation on May 9, 2005, finding a violation 
of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337. Notice is 
also hereby given that the Commission is requesting briefing on the 
issues of remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Jean H. Jackson, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 202-205-3104. Copies of the public 
version of the ID and all 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. 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). The public record for this 
investigation may be viewed on the Commission's electronic docket 
(EDIS) at http://edis.usitc.gov.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on June 3, 2004, based on a complaint filed by Trend Micro Inc. of 
Cupertino, California (``Trend Micro''). 69 FR 32044-45 (2004). The 
complaint alleged violations of section 337 in the importation into the 
United States, the sale for importation into the United States, or the 
sale within the United States after importation of certain systems for 
detecting and removing viruses or worms, components thereof, and 
products containing same by reason of infringement of claims 1-22 of 
U.S. Patent No. 5,623,600 (``the '600 patent''). The notice of 
investigation named Fortinet, Inc. (``Fortinet'') as the sole 
respondent.
    On October 12, 2004, the ALJ issued Order No. 6 terminating the 
investigation as to claims 2, 5-6, 9-10, and 16-22 of the '600 patent 
based upon Trend Micro's unopposed motion to withdraw these claims. The 
Commission did not review Order No. 6, hence the claims of the '600 
patent in issue are claims 1, 3, 4, 7, 8, and 11-15.
    On December 14, 2004, the ALJ issued Order No. 13 granting 
complainant Trend Micro's motion for a summary determination that it 
satisfies the economic prong of the domestic industry requirement. 
Order No. 13 was not reviewed by the Commission.
    An evidentiary hearing was held from January 24, 2005, to January 
28, 2005. On March 29, 2005, a second evidentiary hearing was conducted 
and additional exhibits received into evidence.
    On May 9, 2005, the ALJ issued his final ID and recommended 
determinations on remedy and bonding. He found a violation of section 
337 based on his determinations that claims 4, 7, 8, 11, 12, 13, 14 and 
15 of the '600 patent are not invalid or unenforceable, and that they 
are infringed by respondent's products. The ALJ also found that an 
industry exists that is related to the '600 patent, and that the 
respondent has imported infringing product. The ALJ further found that 
claims 1 and 3 of the '600 patent are anticipated by prior art.
    On May 20, 2005, respondent Fortinet filed a petition for review of 
the final ID and complainant Trend Micro filed a contingent petition 
for review. The IA did not file a petition. On May 27, 2005, Fortinet 
filed a response to Trend Micro's contingent petition for review, and 
Trend Micro filed a response to Fortinet's petition for review. On June 
2, 2005, the IA filed a response to Trend Micro's and Fortinet's 
petitions for review.
    Having examined the record in this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined not to review the ID, thereby finding a 
violation of section 337.
    In connection with the final disposition of this investigation, the 
Commission may issue (1) an order that could result in the exclusion of 
the

[[Page 40732]]

subject articles from entry into the United states, and/or (2) a cease 
and desist order that could result in the respondent being required to 
cease and desist from engaging in unfair action 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 are either 
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).
    When 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 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, 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 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. Complainant is further 
requested to state the expiration date of the `600 patent and the HTSUS 
numbers under which the infringing products are imported. The main 
written submissions and proposed remedial orders must be filed no later 
than July 18, 2005. Response submissions must be filed no later than 
July 25, 2005. No further submissions will be permitted unless 
otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof with the Office of the Secretary on or 
before the deadlines stated above. Any person desiring to submit a 
document (or portions 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 210.5. Documents for which confidential treatment 
is granted by the Commission will be treated accordingly. All non-
confidential written submissions 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 sections 210.42, 
210.43, and 210.50 of the Commission's Interim Rules of Practice and 
Procedure (19 CFR 210.42, 210.43, and 210.50).

    By order of the Commission.

    Issued: July 8, 2005.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-13838 Filed 7-13-05; 8:45 am]
BILLING CODE 7020-02-P