[Federal Register Volume 72, Number 40 (Thursday, March 1, 2007)]
[Notices]
[Pages 9355-9356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3541]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-556]


In the Matter of Certain High-Brightness Light Emitting Diodes 
and Products Containing Same; Notice of Commission Decision To Review-
in-Part a Final Initial Determination Finding a Violation of Section 
337 and To Grant a Motion To Strike

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-in-part a final initial 
determination (``ID'') of the presiding administrative law judge 
(``ALJ'') finding a violation of section 337 by the respondent's 
products in the above-captioned investigation. The Commission has also 
granted respondent's motion to strike complainant's arguments that are 
based on evidence that was excluded by the ALJ.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, 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 at 
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 December 8, 2005, based on a complaint filed by Lumileds Lighting 
U.S., LLC (``Lumileds'') of San Jose, California. 70 FR 73026. The 
complaint, as amended and supplemented, alleges violations of section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain high-
brightness light emitting diodes (``LEDs'') and products containing 
same by reason of infringement of claims 1 and 6 of U.S. Patent No. 
5,008,718 (``the `718 patent''); claims 1-3, 8-9, 16, 18, and 23-28 of 
U.S. Patent No. 5,376,580 (``the `580 patent''); and claims 12-16 of 
U.S. Patent No. 5,502,316 (``the `316 patent''). The complaint further 
alleges the existence of a domestic industry. The Commission's notice 
of investigation named Epistar Corporation (``Epistar'') of Hsinchu, 
Taiwan, and United Epitaxy Company (``UEC'') of Hsinchu, Taiwan as 
respondents.
    On April 28, 2006, Lumileds moved to amend the complaint to: (1) 
Remove UEC as a named respondent, (2) change the complainant's full 
name from Lumileds Lighting U.S., LLC to Philips Lumileds Lighting 
Company LLC (``Philips''), and (3) identify additional Epistar LEDs 
alleged to infringe one or more patents-in-suit. Neither respondent 
opposed the motion.
    On May 15, 2006, the Commission issued a notice determining not to 
review an ID (Order No. 14) granting the complainant's motion for 
partial summary determination to dismiss

[[Page 9356]]

Epistar's affirmative defense that the `718 claims are invalid.
    On August 2, 2006, the still pending motion to amend the complaint 
was discussed with the parties during the prehearing conference, and 
the evidentiary hearing was held from August 2-11, 2006. On October 23, 
2006, the ALJ issued an ID (Order No. 29) granting Lumileds' motion to 
amend the complaint, and further ordering that the Notice of 
Investigation be amended to identify Philips as the complainant and to 
remove UEC as a named respondent. On November 13, 2006, the Commission 
published a notice determining not to review Order No. 29. 71 F R 
66195.
    On December 13, 2006, the Commission issued a notice determining 
not to review an ID (Order No. 31) extending the target date for this 
investigation to May 8, 2007, and the deadline for the ALJ's final 
initial determination to January 8, 2007.
    On January 8 and 11, 2007, the ALJ issued his final ID and 
recommended determinations on remedy and bonding, respectively. The ALJ 
found a violation of section 337 based on his findings that the 
respondent's accused products infringe one or more of the asserted 
claims of the patents at issue. On January 22, 2007, the complainant 
and the respondent each filed a petition for review of the final ID. On 
January 29, 2007, all parties, including the Commission investigative 
attorney, filed responses to the petitions for review.
    Upon considering the parties' filings, the Commission has 
determined to review-in-part the ID. Specifically, with respect to the 
`718 patent, the Commission has determined to review claim construction 
of the terms ``substrate'' and ``semiconductor substrate'' in claims 1 
and 6, and the ALJ's determination that Epistar's GB I, GB II, OMA I, 
and OMA II LEDs do not infringe the `718 patent. With respect to the 
`580 and `316 patents, the Commission has determined to review claim 
construction of the term ``wafer bonding'' in claims 1-3, 8-9, 16, 18, 
23-25, 27 and 28 of the `580 patent and claims 12-14 and 16 of the 
`'316 patent. The Commission has determined not to review the remainder 
of the ID. On January 25, 2007, the respondent filed a motion to strike 
certain portions of complainant's petition for review. The Commission 
has determined to grant this motion to the extent that it concerns 
arguments that are based on evidence excluded by the ALJ.
    On review, with respect to violation, the parties are requested to 
submit briefing limited to the following issues: the ALJ's addition of 
the limitation ``must also be a material that provides adequate 
mechanical support for the LED device'' to the construction of the term 
``substrate,'' and the implications of this addition for the 
infringement analysis. In addressing these issues, the parties are 
requested to cite relevant authority.
    In connection with the final disposition of this investigation, the 
Commission may issue an order that results in the exclusion of the 
subject articles from entry into the United States. 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).
    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.
    When the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). 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 if a remedy is ordered.
    Written Submissions: The written submissions reference above should 
be concise and thoroughly referenced to the record in this 
investigation. Also, 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 be no more than twenty-five (25) 
pages and should address the recommended determination by the ALJ on 
remedy and bonding. The complainant 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 at issue expire and the HTSUS numbers under 
which the accused products are imported. All of the written submissions 
and proposed remedial orders must be filed no later than close of 
business on March 5, 2007. Reply submissions must be filed no later 
than the close of business on March 12. 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 sections 210.42-46 of the Commission's Rules of Practice and 
Procedure, 19 CFR 210.42-46.

    Issued: February 22, 2007.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E7-3541 Filed 2-28-07; 8:45 am]
BILLING CODE 7020-02-P