[Federal Register Volume 70, Number 245 (Thursday, December 22, 2005)]
[Notices]
[Pages 76076-76077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-7715]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-510 (Advisory Opinion Proceedings)]


Systems for Detecting and Removing Viruses or Worms, Components 
Thereof, and Products Containing Same; Notice of Commission 
Determination to Institute Advisory Opinion Proceedings

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 institute advisory opinion proceedings in 
the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Timothy P. Monaghan, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 202-205-3152. Copies of 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 investigation under section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), 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 (June 
8, 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 computer 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 of Sunnyvale, 
California as the sole respondent.
    On May 9, 2005, the ALJ issued his final initial determination 
(``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 a 
recommended determination on remedy and bonding.
    On July 8, 2005, the Commission issued notice 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 requested briefing on the issues of remedy, the public 
interest, and bonding. Id. Submissions on the issues of remedy, the 
public interest, and bonding were filed on July 18, 2005, by all 
parties. All parties filed response submissions on July 25, 2005. On 
August 8, 2005, the Commission terminated the investigation, and issued 
a limited exclusion order and a cease and desist order covering 
respondent's 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.

[[Page 76077]]

    On September 13, 2005, complainant Trend Micro filed a complaint 
for enforcement proceedings of the Commission's remedial orders. On 
October 7, 2005, the Commission determined to institute formal 
enforcement proceedings based on the complaint to determine whether 
Fortinet is in violation of the Commission's cease and desist order 
issued in the investigation, and what if any enforcement measures are 
appropriate.
    On October 26, 2005, Fortinet filed a request for an advisory 
opinion under Commission Rule 210.79 (19 CFR 210.79) that would declare 
that Fortinet's FortiGate products incorporating Fortinet's newly 
redesigned anti-virus software do not infringe claims 4, 7, 8, and 11-
15 of the `600 patent and, therefore, are not covered by the 
Commission's cease and desist order and limited exclusion order, issued 
on August 8, 2005.
    The Commission has examined Fortinet's request for an advisory 
opinion and has determined that the request complies with the 
requirements for institution of an advisory opinion proceeding under 
Commission rule 210.79(a). Accordingly, the Commission has determined 
to institute an advisory opinion proceeding and has referred Fortinet's 
request to the presiding ALJ for issuance of an initial advisory 
opinion.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, 19 U.S.C. 1337, and Commission rules 210.75(a) and 
210.79(a), 19 CFR 210.75(a), 210.79(a).

    Issued: December 16, 2005.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E5-7715 Filed 12-21-05; 8:45 am]
BILLING CODE 7020-02-P