[Federal Register Volume 72, Number 249 (Monday, December 31, 2007)]
[Notices]
[Pages 74327-74329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25279]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-589]


 In the Matter of Certain Switches 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 November 7, 2007, 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: Michelle Walters, 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: This investigation was instituted on 
December 7, 2006, based on a complaint filed by ATEN International Co., 
Ltd. of Taipei, Taiwan, and ATEN Technology, Inc. of Irvine, California 
(collectively, ``ATEN''). The complaint alleged violations of section 
337 of the Tariff Act of 1930 (19 U.S.C. section 1337) in the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain switches and 
products containing the same by reason of infringement of various 
claims of United States Patent No. 7,035,112. The

[[Page 74328]]

complaint named six respondents: Belkin International, Inc., Belkin, 
Inc. (collectively, ``Belkin''), Emine Technology Co., Ltd. 
(``Emine''), RATOC Systems, Inc., RATOC Systems International, Inc. 
(collectively, ``RATOC''), and JustCom Tech, Inc. (``JustCom''). The 
ALJ issued an order terminating RATOC and JustCom based on settlement 
agreements, including a consent order, which the Commission has 
previously determined to review.
    On November 7, 2007, the ALJ issued his final ID, and on November 
21, 2007, he issued his recommended determination on remedy and 
bonding. In his ID, the ALJ found that Belkin's and Emine's accused 
products do not infringe asserted claims 1 and 12-21. In addition, the 
ALJ found that the claims are not invalid for anticipation or 
obviousness. The ALJ also found that the claims are not invalid for 
lack of written description support and that the patent is not 
unenforceable for inequitable conduct. Further, the ALJ found that 
there was no domestic industry based on the asserted patent. ATEN, 
Belkin, Emine, and the Commission investigative attorney each filed 
petitions for review of the ALJ's ID and responses to the petitions.
    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) to review the ALJ's claim 
construction of the terms ``body,'' ``fixedly attached,'' and 
``integrated into,'' and (2) to review the ALJ's determinations on 
infringement, anticipation, obviousness, and domestic industry, but (3) 
not to review the ALJ's claim construction of the terms ``connector 
plugs,'' ``connector ports,'' ``cable,'' or ``molded attachment 
element,'' and (4) not to review the ALJ's determinations on the level 
of skill of a person of ordinary skill in the art, written description, 
and inequitable conduct. With respect to the claim constructions the 
Commission has determined not to review, the Commission understands the 
ALJ to have adopted the reasoning of the party whose claim construction 
he adopted.
    The parties should brief their positions on the issues on review 
with reference to the applicable law and the evidentiary record. In 
connection with its review, the Commission is particularly interested 
in responses to the following questions:
    1. How should the claim term ``body'' be construed? Please cite 
claim language, specification language, prosecution history, and any 
relevant extrinsic evidence to support your position. In addressing the 
claim language, please comment on whether one of ordinary skill in the 
art would understand that claim 1 indicates that the body is an 
enclosure designed to contain a switching circuit and to have a 
plurality of cables fixedly attached to and extending from it.
    2. Does the specification limit the term ``body'' to an integrally 
injection-molded plastic enclosure and/or to an enclosure that provides 
good weather-resistance, impact-resistance, and absolute protection of 
the internal circuit board and circuits thereon? Please cite cases 
addressing whether similar language can be or has been used to limit a 
claim term.
    3. Does the specification distinguish the prior art through its 
statement that ``the box 41 includes outer walls that are made of metal 
material or rigid plastic material and assembled together by means of 
screws (not shown)'' in a way that limits the claims? `112 patent, col. 
1, ll. 23-25. Please cite cases addressing whether similar language can 
be or has been used to distinguish prior art.
    4. If the Commission arrives at a claim construction not asserted 
by the parties or adopts the ALJ's claim construction, should the 
Commission remand the investigation to the ALJ to develop the record 
according to the selected claim construction?
    5. Under your proposed claim construction of the claim term 
``body,'' do the accused products meet this limitation?
    6. If the Commission were to construe the claim term ``body'' (a) 
to require an integrally injection-molded plastic enclosure, (b) to 
require an enclosure that provides good weather-resistance, impact-
resistance, and absolute protection of the internal circuit board and 
circuits thereon, or (c) to exclude ``the box 41 includes outer walls 
that are made of metal material or rigid plastic material and assembled 
together by means of screws (not shown),'' do the accused products meet 
the limitations identified in (a), (b), and (c)?
    7. If the Commission were to construe the claim term ``body'' to 
exclude the switching circuit, do the accused products'' cables extend 
from the body as required by claim 1 of the `112 patent?
    8. Do Emine's products have a plurality of cables?
    9. Under your proposed claim construction of the claim term 
``body,'' is this limitation disclosed by the prior art?
    10. If the Commission were to construe the claim term ``body'' (a) 
to require an integrally injection-molded plastic enclosure, (b) to 
require an enclosure that provides good weather-resistance, impact-
resistance, and absolute protection of the internal circuit board and 
circuits thereon, or (c) to exclude ``the box 41 includes outer walls 
that are made of metal material or rigid plastic material and assembled 
together by means of screws (not shown),'' do the prior art materials 
disclose the limitations identified in (a), (b), and (c)?
    11. If the Commission were to construe the claim term ``body'' to 
exclude the switching circuit, do the prior art materials disclose 
cables that extend from the ``body'' as required by claim 1 of the `112 
patent?
    12. Under your proposed claim construction of the term ``body,'' do 
ATEN's products meet this limitation?
    13. If the Commission were to construe the claim term ``body'' (a) 
to require an integrally injection-molded plastic enclosure, (b) to 
require an enclosure that provides good weather-resistance, impact-
resistance, and absolute protection of the internal circuit board and 
circuits thereon, or (c) to exclude ``the box 41 includes outer walls 
that are made of metal material or rigid plastic material and assembled 
together by means of screws (not shown),'' do ATEN's products meet the 
limitations identified in (a), (b), and (c)?
    14. If the Commission were to construe the claim term ``body'' to 
exclude the switching circuit, do ATEN's products'' cables extend from 
the body as required by claim 1 of the `112 patent?
    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

[[Page 74329]]

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 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 parties to the investigation are requested 
to file written submissions on the issues identified in this notice. 
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 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 
Tuesday, January 8, 2008. Reply submissions must be filed no later than 
the close of business on Tuesday, January 15, 2008. 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 and 210.50 of the Commission's Rules of Practice 
and Procedure (19 CFR 210.42-46 and 210.50).

    By order of the Commission.

     Issued: December 21, 2007.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E7-25279 Filed 12-28-07; 8:45 am]
BILLING CODE 7020-02-P