[Federal Register Volume 74, Number 228 (Monday, November 30, 2009)]
[Notices]
[Pages 62589-62592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28464]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-657]


Certain Automotive Multimedia Display and Navigation Systems, 
Components Thereof, and Products Containing Same; Notice of Commission 
Determination To Review in Part a Final Initial Determination Finding 
No 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

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September 22, 2009, finding no violation of section 337 of the Tariff 
Act of 1930, 19 U.S.C. 1337, in this investigation.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-2532. 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 
(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 Investigation No. 
337-TA-657 on September 22, 2008, based on a complaint filed by 
Honeywell International Inc. of Morristown, New Jersey (``Honeywell''). 
73 FR 54617 (Sept. 22, 2008). The complainant named the following 
respondents: Alpine Electronics, Inc. of Japan, and Alpine Electronics 
of America, Inc. of Torrance, California (collectively ``Alpine''); 
Denso Corporation of Japan, and Denso International America, Inc. of 
Southfield, Michigan (collectively ``Denso''); Pioneer Corporation of 
Japan and Pioneer Electronics (USA) Inc. of Long Beach, California 
(collectively ``Pioneer''); and Kenwood Corporation of Japan and 
Kenwood USA Corporation of Long Beach, California (collectively 
``Kenwood''). The complaint alleged violations of Section 337 of the 
Tariff Act of 1930, 19 U.S.C. 1337, in the importation, sale for 
importation, and sale within the United States after importation of 
certain automotive multimedia display and navigation systems, 
components thereof, and products containing the same that infringe 
certain claims of U.S. Patent Nos. 5,923,286 (``the '286 patent''); 
6,289,277 (``the '277 patent''); 6,308,132 (``the '132 patent''); 
6,664,945 (``the '945 patent''); 6,691,030 (``the '030 patent''); and 
6,700,482.
    On March 31, 2009, the ALJ granted Honeywell's and Kenwood's joint 
motion to terminate the investigation as to Kenwood, based on a 
settlement agreement between those parties and pursuant to Commission 
rule 210.21(b), 19 CFR 210.21(b). On April 15, 2009, the ALJ granted 
Honeywell's motion to terminate the investigation as to the '030 patent 
pursuant to Commission rule 210.21(a)(1), 19 CFR 210.21(a)(1). On April 
19, 2009, the ALJ granted Honeywell's motion to terminate the 
investigation as to claims 2-7 of the '945 patent. On April 23, 2009, 
the ALJ granted Honeywell's and Denso's joint motion to terminate the 
investigation as to Denso, based on a settlement agreement between 
those parties. On June 23, 2009, the ALJ granted Honeywell's and 
Alpine's joint motion to terminate the investigation as to Alpine, 
based on a settlement agreement between them. The Commission determined 
not to review any of these initial determinations.
    As against Pioneer, the sole remaining respondent, the following 
asserted patents and claims remained: '132 patent (claims 1-7, 17); 
'286 patent (claim 5); '945 patent (claim 1); '277 patent (claims 1, 4, 
5, 9, 11, 13, 20). Pioneer's accused products include factory-installed 
GPS units in certain automobiles and certain after-market ``head-unit'' 
GPS devices that are mounted in automobile dashboards.
    On September 22, 2009, the ALJ issued his final ID, finding no 
violation of section 337 by Pioneer. The ALJ found that a domestic 
industry in the United States exists with respect to Honeywell's 
licensing program, which has a nexus to the asserted patents as 
required by 19 U.S.C. 1337(a)(2) and (a)(3). The ALJ construed more 
than twenty contested claim terms. The ALJ found that the accused 
products do not literally infringe, directly or indirectly, any 
asserted claims of any of the asserted patents. (Honeywell did not 
argue infringement under the doctrine of equivalents.)
    The final ID also found invalid the asserted claims of three of the 
four asserted patents. The ALJ determined that the asserted claims of 
the '132 patent are invalid for four independent reasons. First, the 
term ``software means'' in asserted independent claims 1 and 17 is 
indefinite under 35 U.S.C. 112 ] 2. Second, Honeywell's demonstration 
of the alleged invention at a trade show more than a year before the 
application for that patent was filed, constituted a public-use bar 
under 35 U.S.C. 102(b). Third, Honeywell's supposed offer to sell the 
invention to one of its customers constituted an on-sale bar under 35 
U.S.C. 102(b). Fourth, and finally, the ALJ found that the asserted 
claims of the '132 patent are anticipated by U.S. Patent No. 6,092,076 
to McDonough.
    The ALJ ruled that claim 5 of the '286 patent is invalid for 
failure of the inventor to disclose to the Patent and Trademark Office 
(USPTO) the best mode of practicing the patented invention, in 
violation of 35 U.S.C. 112 ] 1. The ALJ ruled that the asserted claims 
of the '277 patent are anticipated, under 35 U.S.C. 102(b), by the 
factory-installed navigation system in the 1998 Lexus GS 400 
automobile, and its accompanying manuals. The ALJ found claim 1 of the 
'945 patent not invalid.
    On October 5, 2009, Honeywell filed its petition, and Pioneer its 
contingent petition, for review of the initial determination. Together, 
the parties petitioned for review of the majority of the ALJ's claim 
constructions. Honeywell has also petitioned for review of the ALJ's 
findings of noninfringement of the asserted claims of the four patents, 
as well as of the ALJ's determinations that the asserted claims of the 
'132, '286 and '277 patents are invalid. Pioneer has petitioned for 
review of the ALJ's determination that the asserted claims of the '132 
patent are not invalid for failure of the inventors to disclose to the 
USPTO the best mode of practicing the patented invention, in violation 
of 35 U.S.C. 112 ] 1. Pioneer also petitions for review of the ALJ's 
determination that the asserted claims of the '945 patent are not 
invalid under 35 U.S.C. 102 as anticipated by one of several pieces of 
prior art. On October 13, 2009, Honeywell and Pioneer filed responses 
to each other's petition, and the Commission investigative attorney 
filed a response to Honeywell's petition.
    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 determined to review:
    i. The construction of the '286 patent's claim terms ``inertial 
reference system,'' and ``based upon the IRS position signal, the 
velocity of the vehicle and the acceleration of the vehicle.''
    ii. The construction of the '945 patent's claim terms ``radio 
select means,'' ``selectable alphanumeric text portion,'' ``selectable 
frequency tuning portion,'' and ``storage select means.''
    iii. The finding that the asserted claims of the '132 patent are 
anticipated under 35 U.S.C. 102(b) by U.S. Patent No. 6,092,076 to 
McDonough.
    iv. The finding that claim 5 of the '286 patent is invalid under 35 
U.S.C. 112 ] 1, for failure to disclose the best mode.

[[Page 62591]]

    v. The finding that claim 5 of the '286 patent is not infringed by 
the accused products.
    vi. The finding that claim 1 of the '945 patent is not anticipated 
under 35 U.S.C. 102 by the Alpine CVA-1000 system, U.S. Patent No. 
6,725,231 to Obradovich, or U.S. Patent No. 7,398,051 to Bates.
    vii. The finding that the accused products do not infringe claim 1 
of the '945 patent.
    viii. The finding that the accused products do not infringe the 
asserted claims of the '277 patent.
    ix. The finding that claim 9 of the '277 patent is anticipated 
under 35 U.S.C. 102(b) by the 1998 Lexus GS 400.
    x. The finding that claim 9 of the '277 patent is not invalid under 
35 U.S.C. 103(a) over the 1998 Lexus GS 400, in view of U.S. Patent No. 
6,725,231 to Obradovich, the 1997 VICS instruction manual, or the 
Xanavi manual.
    The Commission has determined to review and to take no position on 
whether the asserted claims of the '132 patent are invalid because of 
an on-sale bar under 35 U.S.C. 102(b). See Beloit Corp. v. Valmet Oy, 
742 F.2d 1421, 1422-23 (Fed. Cir. 1984).
    The Commission has determined not to review the remainder of the 
ID. The parties are requested to brief their positions on the following 
five questions (and only on the following five questions) concerning 
the issues under review with reference to the applicable law and the 
evidentiary record.
    For the questions regarding the '286 patent, assume the ALJ's claim 
constructions except as follows: ``inertial reference system'' means 
``a device that employs a plurality of inertial sensors for determining 
the position of the vehicle,'' and such position can be real or 
relative; ``based upon the IRS position signal, the velocity of the 
vehicle and the acceleration of the vehicle'' is afforded its plain 
meaning and is not limited to usage of error values.
    For the questions regarding the '945 patent, assume the ALJ's claim 
constructions except as follows: ``radio select means'' is written in 
means-plus-function format with a recited function of ``selecting a 
radio'' and a corresponding structure of ``a plurality of buttons''; 
``selectable alphanumeric text portion'' means a ``portion selectable 
by the user that contains alphanumeric text''; ``selectable frequency 
tuning portion'' means a ``portion selectable by the user that contains 
frequency tuning information''; ``storage select means'' is written in 
means-plus-function format with a recited function of ``selecting 
storage'' and a corresponding structure of ``a button.''
    1. As so construed, are the specific limits and frequency values 
withheld by the inventor part of the invention of claim 5 of the '286 
patent for purposes of finding a violation of best mode under 35 U.S.C. 
112 ] 1?
    2. As so construed, do the accused products infringe claim 5 of the 
'286 patent?
    3. As so construed, is claim 1 of the '945 patent anticipated under 
35 U.S.C. 102 by the Alpine CVA-1000 system, U.S. Patent No. 6,725,231 
to Obradovich, or U.S. Patent No. 7,398,051 to Bates?
    4. As so construed, do the accused products infringe claim 1 of the 
'945 patent?
    5. If the Commission finds that claim 1, but not claim 9, of the 
'277 patent is anticipated under 35 U.S.C. 102 by the 1998 Lexus GS 
400, is claim 9 invalid under 35 U.S.C. 103(a) over the 1998 Lexus GS 
400, in view of any one of the three following references: U.S. Patent 
No. 6,725,231 to Obradovich, the 1997 VICS instruction manual, or the 
Xanavi manual?
    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 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. 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. Complainant and the IA are also requested to submit 
proposed remedial orders for the Commission's consideration. 
Complainant is 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 Monday, December 7, 2009. 
Reply submissions must be filed no later than the close of business on 
Monday, December 14, 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

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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: November 23, 2009.

    By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E9-28464 Filed 11-27-09; 8:45 am]
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