[Federal Register Volume 70, Number 154 (Thursday, August 11, 2005)]
[Notices]
[Pages 46885-46886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15934]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-510]


Certain Systems for Detecting and Removing Viruses or Worms, 
Components Thereof, and Products Containing Same; Termination of 
Investigation; Issuance of a Limited Exclusion Order and a Cease and 
Desist Order

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 terminated the above-captioned investigation in which it 
has found a violation of the Tariff Act of 1930 and has issued a 
limited exclusion order and a cease and desist order.

FOR FURTHER INFORMATION CONTACT: Jonathan J. Engler, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 202-205-3112. 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: This patent-based section 337 investigation 
was instituted by the Commission on June 3, 2004, based on a complaint 
filed by Trend Micro Inc. (``Trend Micro'') of Cupertino, California. 
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'') of Sunnyvale, California as the sole respondent.
    On October 12, 2004, the ALJ issued an initial determination (ID) 
(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 an ID (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 administrative law judge (``ALJ'') issued his 
final ID finding a violation of section 337 based on his findings that 
claims 4, 7, 8, and 11-15 of the 600 patent are not invalid or 
unenforceable, and are infringed by respondent's products. The ALJ also 
found that claims 1 and 3 of the 600 patent are invalid as anticipated 
by prior art and that a domestic industry exists. He also issued his 
recommended determination on remedy and bonding.
    On May 20, 2005, respondent Fortinet filed a petition for review of 
the final ID

[[Page 46886]]

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 and Fortinet's petition for review.
    On July 8, 2005, the Commission issued a notice indicating that it 
had determined not to review the ALJ's final ID on violation, thereby 
finding a violation of section 337.70 FR 40731 (July 14, 2005). The 
Commission also invited the parties to file written submission 
regarding the issues of remedy, the public interest, and bonding, and 
provided a schedule for filing such submissions.
    Having reviewed the record in this investigation, including the 
parties' written submissions and responses thereto, the Commission 
determined that the appropriate form of relief in this investigation is 
a limited exclusion order prohibiting the unlicensed entry of systems 
for detecting and removing viruses or worms, components thereof and 
products containing same covered by claims 4, 7, 8, and 11-15 of the 
`600 patent. The order covers systems for detecting and removing 
viruses or worms, components thereof and products containing same that 
are manufactured abroad by or on behalf of, or imported by or on behalf 
of the respondent, or any of their affiliated companies, parents, 
subsidiaries, or other related business entities, or their successors 
or assigns.
    The Commission also determined to issue a cease and desist order 
prohibiting the respondent from importing, selling, marketing, 
advertising, distributing, offering for sale, transferring (except for 
exportation), and soliciting U.S. agents or distributors for systems 
for detecting and removing viruses or worms, components thereof and 
products containing same.
    The Commission further determined that the public interest factors 
enumerated in sections 337(d)(1) and (f)(1), 19 U.S.C. 1337(d)(1) and 
(f)(1), do not preclude issuance of either the limited exclusion order 
or the cease and desist order. In addition, the Commission determined 
that the amount of bond to permit temporary importation during the 
Presidential review period shall be in the amount of 100 percent of the 
entered value of the imported articles. The Commission's orders and 
opinion in support thereof were delivered to the President on the day 
of their issuance.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and section 210.50 of 
the Commission's Interim Rules of Practice and Procedure (19 CFR 
210.50).

    Issued: August 8, 2005.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-15934 Filed 8-10-05; 8:45 am]
BILLING CODE 7020-02-P