[Federal Register Volume 73, Number 101 (Friday, May 23, 2008)]
[Notices]
[Pages 30161-30163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11578]


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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 Reverse-in-Part and Modify-in-Part a Final Initial 
Determination Finding a Violation of Section 337 and Termination of the 
Investigation With a Finding of No Violation

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 reverse-in-part and modify-in-part a final 
initial determination (``ID'') of the presiding administrative law 
judge (``ALJ''). The Commission has determined that there is no 
violation of section 337 in the above-captioned investigation.

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

[[Page 30162]]

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 claims 1 and 28 of the `439 patent, and that those 
claims were not proven invalid and that the domestic industry and 
importation requirements of section 337 were met as to those claims. 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.
    On March 14, 2008, the Commission determined to review-in-part the 
final ID. Particularly, the Commission 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.
    With respect to violation, the Commission requested written 
submissions from the parties relating 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'').

73 FR 15005-07.
    Further, the Commission requested written submissions on the issues 
of remedy, the public interest, and bonding. Id.
    On March 24 and March 31, 2008, respectively, the complainant 
Microsoft, the respondent ALE, and the IA filed briefs and reply briefs 
on the issues for which the Commission requested written submissions.
    Having reviewed the record in this investigation, including the 
final ID and the parties' written submissions, the Commission has 
determined to reverse-in-part and modify-in-part the ID. Particularly, 
the Commission has modified the ALJ's claim construction of the term 
``current activity of the user on the computer network'' in claims 1, 
28, and 38 of the `439 patent to be ``the current status of the user on 
the computer network'' where ``current status'' includes ``either the 
status of a user or subscriber at the present time or the most recent 
status of a user or subscriber.'' Further, the Commission has reversed 
the ALJ's ruling of infringement of the `439 patent by ALE's OXE system 
and determined that this system does not infringe claims 1, 28, and 38 
under at least the Commission's modified claim construction of 
``current activity of the user on the computer network.'' The 
Commission has also affirmed the ALJ's ruling of non-infringement of 
the `439 patent by ALE's OXO system. In addition, the Commission has 
reversed the ALJ's finding that claims 1 and 28 are not invalid in view 
of the `114 patent or the `789 patent, reversed the ALJ's finding that 
claim 38 is not invalid in view of the `789 patent, and affirmed the 
ALJ's finding that claim 38 is invalid in view of the `114 patent. 
Particularly, the Commission has determined that claims 1, 28, and 38 
are invalid in view of the

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`114 patent, and are also invalid in view of the `789 patent.
    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 210.45 and 210.50 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.45, 210.50).

     Issued: May 19, 2008.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E8-11578 Filed 5-22-08; 8:45 am]
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