[Federal Register Volume 73, Number 55 (Thursday, March 20, 2008)]
[Notices]
[Pages 15005-15007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5608]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-598]


In the Matter of Certain Unified Communications Systems, Products 
Used With Such Systems, and Components Thereof; Notice of Commission 
Decision To Review-In-Part a Final Initial Determination Finding a 
Violation of Section 337

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 in the above-captioned 
investigation.

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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 March 26, 2007, based on a complaint filed by Microsoft Corporation 
(``Microsoft'') of Redmond, Washington. 72 FR 14138-9. 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 unified communications 
systems, products used with such systems, and components thereof by 
reason of infringement of certain claims of U.S. Patent Nos. 6,421,439 
(``the `439 patent''); 6,430,289; 6,263,064 (``the `064 patent''); and 
6,728,357. The complaint further alleges the existence of a domestic 
industry. The Commission's notice of investigation named Alcatel-Lucent 
(``ALE'') of Paris, France as the only respondent.
    On April 20, 2007, Microsoft moved to amend the complaint to: (1) 
Substitute Alcatel Business Systems for Alcatel-Lucent as respondent in 
this investigation, and (2) add allegations of infringement of claims 
8, 28, 38, and 48 of the `439 patent, and claim 20 of the `064 patent. 
Respondent and the Commission investigative attorney (``IA'') did not 
oppose the motion.
    On May 17 and September 20, 2007, respectively, the Commission 
determined not to review IDs, issued by the presiding ALJ, granting 
Microsoft's motions to amend the complaint and to terminate the 
investigation in part based on Microsoft's withdrawal of certain 
claims. On October 23 and October 26, 2007, respectively, the 
Commission determined not to review IDs, issued by the presiding ALJ, 
granting Microsoft's motion to terminate the investigation in part 
based on Microsoft's withdrawal of certain claims and granting ALE's 
motion to amend the complaint.
    On January 28, 2008, the ALJ issued his final ID and recommended 
determinations on remedy and bonding. 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 February 11, 2008, all parties, including the IA, filed 
petitions for review of the final ID. On February 19, 2008, all parties 
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 
`439 patent, the Commission has determined to review: (1) The ALJ's 
construction of the claim term ``current activity of subscribers on the 
computer network''; (2) the ALJ's determination that ALE's OXE system 
directly and indirectly infringes the `439 patent; (3) the ALJ's 
determination that ALE's OXO system does not infringe the `439 patent; 
(4) the ALJ's determination that claims 1 and 28 of the `439 patent are 
not invalid in view of U.S. Patent No. 6,041,114 (``the `114 patent'') 
or U.S. Patent No. 5,652,789 (``the `789 patent''); (5) the ALJ's 
determination that claim 38 of the `439 patent is invalid in view of 
the `114 patent; and (6) the ALJ's determination that claim 38 is not 
invalid in view of the `789 patent. The Commission has determined not 
to review the remainder of the ID, or ALJ Order No. 14 for which review 
was also sought.
    On review, with respect to violation, the parties are requested to 
submit briefing limited to the following issues:
    (1) The ALJ's finding that the ``current activity of the user on 
the computer network'' as found in the `439 patent ``can consist of 
both user-selected indicators based on user activity (e.g., 
`conditional processing' as per the `439 specification) and the 
transfer of data between the computer and telephone networks while the 
user is engaged in a VoIP phone call'' (ID at 47), and the implications 
of this finding for the infringement and invalidity analyses;
    (2) What is the exact demarcation between the `439 patent claim 
terms ``telephone network'' and ``computer network'' as it relates to 
claim construction, invalidity using the `114 and `789 patents, and the 
infringement analysis for a Voice-over-IP (VoIP) communication system;
    (3) Whether the PBX and telecommute server of the `114 patent, 
functioning together, can be considered to disclose the ``network 
access port'' and ``controller'' limitations of claim 1 of the `439 
patent to anticipate this claim;
    (4) To what extent, if any, does anticipation of claims 1 and 28 of 
the `439 patent depend on a finding that the claim limitations are 
inherently disclosed by the `114 and `789 patents; and
    (5) Please comment on Microsoft's argument that the ALJ, when 
construing the term ``current activity'' to mean ``either the status of 
the user or subscriber at the present time or the most recent status of 
a user or subscriber,'' did so in a manner inconsistent with Federal 
Circuit precedent. Complainant Microsoft's Contingent Petition for 
Review at 9. In addressing this argument, please address Free Motion 
Fitness, Inc. v. Cybex Int'l, Inc., 423 F.3d 1343 (Fed. Cir. 2005) 
(``[u]nder Phillips, the rule that `a court will give a claim term the 
full range of its ordinary meaning,' * * * does not mean that the term 
will presumptively receive its broadest dictionary definition or the 
aggregate of multiple dictionary definitions * * *'')) and Impax Labs, 
Inc. v. Aventis Pharms, Inc. 468 F.3d 1368, 1374 (Fed. Cir. 2006) 
(``claim is unpatentable under the preponderance of evidence, burden-
of-proof standard, giving each term its broadest reasonable 
construction consistent with the specification'').
    In addressing these issues, the parties are requested to make 
specific reference to the evidentiary record and 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

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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 mentioned 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, and such submissions 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 24, 2008. Reply submissions must 
be filed no later than the close of business on March 31. 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: March 14, 2008.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E8-5608 Filed 3-19-08; 8:45 am]
BILLING CODE 7020-02-P