[Federal Register Volume 74, Number 228 (Monday, November 30, 2009)]
[Notices]
[Pages 62592-62593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28465]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-648]


 In the Matter of Certain Semiconductor Integration Circuits 
Using Tungsten Metallization and Products Containing Same; Notice of 
Commission Determination To Review-In-Part A Final Initial 
Determination Finding No Violation of Section 337 and To Remand A 
Portion of the Investigation; Schedule for Written Submissions Relating 
To Remand, and To 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 a final initial 
determination (``ID'') of the presiding administrative law judge 
(``ALJ'') finding no violation of section 337 of the Tariff Act of 1930 
(19 U.S.C. 1337) in the above-captioned investigation, and has 
determined to remand a portion of the investigation to the ALJ.

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) 708-2310. 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 May 21, 2008 based on a complaint filed on April 18, 2008, by LSI 
Corporation of Milpitas, California and Agere Systems Inc. of 
Allentown, Pennsylvania (collectively ``complainants''). The complaint, 
as amended, alleged 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 semiconductor integrated circuits using 
tungsten metallization and products containing same by reason of 
infringement of one or more of claims 1, 3, and 4 of U.S. Patent No. 
5,227,335. The amended complaint named numerous respondents. Several 
respondents have been terminated from the investigation due to 
settlement. The following seven respondents remain in the 
investigation: Tower Semiconductor, Ltd. (``Tower'') of Israel; Jazz 
Semiconductor (``Jazz'') of Newport Beach, California; Powerchip 
Semiconductor Corporation (``Powerchip'') of Taiwan; Grace 
Semiconductor Manufacturing Corporation (``Grace'') of China; 
Integrated Device Technology, Inc. (``IDT'') of San Jose, California;

[[Page 62593]]

Spansion, Inc. (``Spansion'') of Sunnyvale, California; and Nanya 
Technology Corporation (``Nanya'') of Taiwan. The complaint further 
alleged that an industry in the United States exists as required by 
subsection (a)(2) of section 337.
    On September 21, 2009, the ALJ issued his final ID finding no 
violation of section 337 by the remaining respondents. He concluded 
that each accused process was covered by one or more of asserted claims 
1, 3, and 4 of the `335 patent, but also that all asserted claims were 
anticipated under 35 U.S.C. 102(g) in view of the IBM Process A prior 
art. On October 5, 2009, complainants, respondents, and the Commission 
investigative attorney (``IA'') filed petitions for review of the final 
ID. Also, four separate petitions for review were filed on the same 
date by respondents Grace, IDT, Tower/Jazz, and Nanya/Powerchip/
Spansion. The IA, complainants, and respondents filed responses to the 
other parties' petitions on October 13, 2009.
    Upon considering the parties' filings, the Commission has 
determined to review-in-part the ID. Specifically, the Commission has 
determined to review: (1) Invalidity of claims 1, 3, and 4 of the `335 
patent under 35 U.S.C. 102(g) & 103 with respect to the IBM Process A, 
IBM Process B, and AMD prior art; and (2) Jazz's stipulation regarding 
whether its process meets the complete, third recited step of claim 1, 
i.e., ``depositing a tungsten layer by chemical vapor deposition, said 
tungsten layer covering said glue layer on said dielectric and said 
exposed material.'' The Commission has determined not to review the 
remainder of the ID.
    In addition, the Commission has determined to issue an order 
remanding the investigation to the ALJ for further proceedings relating 
to whether claim 4 is rendered obvious by IBM Process A in light of the 
other prior art asserted by respondents.
    The Commission has instructed the ALJ to make his determination on 
remand at the earliest practicable time, and to extend the target date 
of the above-captioned investigation as he deems necessary to 
accommodate the remand proceedings. The parties are invited to file 
written submissions on the ALJ's remand determination within fourteen 
days after service of the ALJ's determination and to file responses to 
the written submissions within seven days after service of the written 
submissions. The Commission also requests briefing on remedy, the 
public interest, and bonding from the parties, consistent with these 
submission dates, as described in detail below.
    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 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 section 337(j), 19 U.S.C. 
1337(j) and the 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: 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 
IA are also requested to submit proposed remedial orders for the 
Commission's consideration. Complainant is also requested to state the 
date that the patent at issue expires and the HTSUS numbers under which 
the accused articles are imported. The written submissions and proposed 
remedial orders, and any reply submissions, must be filed consistent 
with the dates stated above relating to the remand ID. 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.

    By order of the Commission.

    Issued November 23, 2009.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E9-28465 Filed 11-27-09; 8:45 am]
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