[Federal Register Volume 74, Number 32 (Thursday, February 19, 2009)]
[Notices]
[Pages 7702-7703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3460]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-617]


In the Matter of Certain Digital Televisions and Certain Products 
Containing Same and Methods of Using Same; Notice of Commission 
Determination To Review in Part a Final Determination Finding a 
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 in part the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on November 17, 2008, finding 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: Daniel E. Valencia, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-1999. 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 November 15, 2007, based on a complaint filed by Funai Electric Co., 
Ltd. of Japan and Funai Corporation of Rutherford, NJ (collectively 
``Funai''), alleging violations of section 337 of the Tariff Act of 
1930 (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 digital televisions and certain products 
containing the same and methods of using the same by reason of 
infringement of certain claims of United States Patent Nos. 5,329,369 
(``the `369 patent'') and 6,115,074 (``the `074 patent''). 72 Federal 
Register 64240 (November 15, 2007). The complaint named fourteen 
respondents. Subsequent to institution, three respondents were 
terminated from the investigation based on settlement agreements.
    On November 17, 2008, the ALJ issued his final ID, finding that a 
violation of section 337 has occurred in the importation into the 
United States, the sale for importation, and the sale within the United 
States after importation of certain digital televisions and certain 
products containing the same and methods of using the same by reason of 
infringement of certain claims of the `074 patent. The ALJ found that 
no violation exists with respect to the `369 patent. On November 25, 
2008, the ALJ issued a recommended determination on remedy and bonding 
(``RD''). The respondents, the Commission investigative attorney 
(``IA''), and complainant Funai filed petitions for review of the ID on 
December 1, 2008. The IA, the respondents, and complainant Funai each 
filed responses to the petitions for review on December 9, 2008.
    On December 4, 2008, the respondents filed a motion requesting 
judicial notice of Funai's response to an office action in the pending 
U.S. Patent and Trademark Office (``USPTO'') reexamination proceedings 
concerning the `074 patent. In the alternative, the respondents 
requested that the evidentiary record be reopened to allow Funai's 
response to the USPTO to be admitted. On December 15, 2008, the IA and 
Funai replied to the respondents' motion. On December 17, 2008, the 
respondents filed a motion for leave to reply and, thereafter, 
corrected its submission on December 18, 2008. On December 18, 2008 and 
December 29, 2008, respectively, Funai and the IA replied to 
respondents' motion for leave.
    The Commission notes that the ALJ took notice of the ongoing 
reexamination proceedings. The Commission has determined to deny 
Respondents' motion to take judicial notice of specific documents filed 
in that proceeding. The Commission has also determined to deny 
Respondents' alternative request for reopening of the record as well as 
Respondents' motion for leave to reply.
    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 to review the final ID in part. 
Specifically, the Commission has

[[Page 7703]]

determined to review (1) the ALJ's finding that the respondents 
infringe claim 23 of the `074 patent [CONFIDENTIAL INFORMATION 
DELETED]; and (2) the ALJ's finding that the respondents induce their 
customers to infringe claim 23 of the `074 patent. The Commission has 
determined not to review any other issue decided in the ID.
    The parties are requested to brief their positions on the issues 
under 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:

[CONFIDENTIAL INFORMATION DELETED]

    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(s) 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 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 Federal Register 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 ALJ's recommendation on remedy and 
bonding set forth in the RD. Complainants and the IA 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. The written submissions and proposed remedial orders must be 
filed no later than close of business on Tuesday, February 24, 2009. 
Reply submissions must be filed no later than the close of business on 
Tuesday, March 3, 2009. 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).

    Issued: February 11, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-3460 Filed 2-18-09; 8:45 am]
BILLING CODE 7020-02-P