[Federal Register Volume 75, Number 228 (Monday, November 29, 2010)]
[Notices]
[Pages 73128-73130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29910]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-690]


Certain Printing and Imaging Devices and Components Thereof; 
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 a portion of the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on September 23, 2010 finding a violation of section 337 and 
to request briefing on the issues under review and on remedy, the 
public interest, and bonding.

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 October 26, 2009, based on a complaint filed by Ricoh Company, Ltd. 
of Tokyo, Japan; Ricoh Americas Corporation of West Caldwell, New 
Jersey; and Ricoh Electronics, Inc. of Tustin, California (collectively 
``Ricoh''). 74 FR 55065 (Oct. 26, 2009). The complaint alleged, inter 
alia, violations of section 337 in the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain printing and imaging devices and 
components thereof by reason of infringement of U.S. Patent Nos. 
6,209,048 (``the `048 patent''); 6,212,343 (``the `343 patent''); 
6,388,771 (``the `771 patent''); 5,764,866 (``the `866 patent); and 
5,863,690 (``the `690 patent''). The complaint named Oki Data 
Corporation of Tokyo, Japan and Oki Data Americas, Inc. of Mount 
Laurel, New Jersey (collectively ``Oki'') as respondents.
    On September 23, 2010, the ALJ issued his final ID finding that Oki 
violated section 337 in the importation into the United States, the 
sale for importation, and the sale within the United States after 
importation of certain printing and imaging devices and components 
thereof by reason of infringement of several claims in the `690 patent. 
The ALJ found that Oki has not violated section 337 with respect to the 
`048, `343, `771, and `866 patents. Along with the ID, the ALJ issued a 
recommended determination on remedy and bonding (``RD''). Complainant 
Ricoh, respondent Oki, and the Commission investigative attorney 
(``IA'') filed petitions for review of the ID on October 6, 2010. 
Ricoh, Oki, and the IA each filed responses to the petitions for review 
on October 14, 2010.
    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. In 
particular, the Commission has determined to review all findings and 
conclusions relating to whether a violation of section 337 has occurred 
with respect to the `343 and `690 patents.
    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 questions:

The `343 Patent

    (1) The Commission has determined to review all findings relating 
to the limitation ``a direction orthogonal to a longitudinal direction 
of the developing roller,'' as recited in the asserted claims of the 
`343 patent.
    (a) Please state your position on the meaning of ``a longitudinal 
direction of the developing roller,'' as recited in the asserted 
claims. How does your position differ from the ALJ's construction?
    (b) Specifically, does ``a longitudinal direction'' include any 
line extending parallel to the central axis of the roller? Or, does 
this refer to the central axis itself?
    (c) Please state your position on the meaning of ``a direction 
orthogonal to a longitudinal direction of the developing roller.'' 
Please take into account that the planar blade is bent along its entire 
width, and do not confine your analysis to two-dimensional cross-
sections.
    (d) Assuming ``a longitudinal direction'' can include any line 
extending parallel to the central axis of the roller, can ``a direction 
orthogonal'' refer to a direction that is not perpendicular to the 
surface of the roller, i.e., a tangent extending through the surface of 
the roller?
    (e) Given the planar shape of the blade contacts the roller in 
three dimensions along the entire width of the blade, and is bent along 
the entire width of the blade, is there any bend that would not meet 
the ``direction orthogonal'' limitation?
    (f) How does your answer to (d) comport with the preferred 
embodiment of the `343 patent shown in Figures 8A and 8B? Is the blade 
17 shown in Figures 8A and 8B bent in ``a direction orthogonal to a 
longitudinal direction of the developing roller?''
    (g) How do your answers to (a) through (e) affect the ALJ's 
findings regarding infringement, validity, and domestic industry?
    (2) The Commission has determined to review the ALJ's construction 
of ``a lower edge,'' as recited in the asserted claims of the `343 
patent. The asserted claims of the `343 patent recite, among other 
things:


[[Page 73129]]


    wherein the blade includes a wide-width part * * * and a narrow-
width part * * * configured * * * to be [sic] bend in a direction 
orthogonal to a longitudinal direction of the developing roller * * 
* and the narrow-width part is disposed downstream of the contact 
point of the blade and the roller part * * * in the rotation 
direction.

    JX-4 (`343 patent), col. 25, ll. 16-30 (emphasis added).
    (a) Please explain whether the language emphasized above informs 
the meaning of ``a lower edge.''
    (b) Can the claimed ``a lower edge'' refer to an edge of the 
``narrow-width part,'' an edge of the ``wide-width part,'' or both?
    (c) If the narrow-width part of the blade is bent away from the 
roller such that the edge opposite the boundary between the wide-width 
part and the narrow-width part does not contact the roller, as shown in 
Figures 8A, 8B, and 12, how should ``a lower edge'' be construed?
    (d) Can ``a lower edge thereof contacts the roller part of the 
developing roller'' refer to contact between the roller and an area 
extending from the lower edge of the blade to a point on the blade 
slightly above the lower edge?
    (e) How do your answers to (a) through (d) affect the ALJ's 
findings regarding infringement, validity, and domestic industry?

The `690 Patent

    (1) The Commission has determined to review the ALJ's determination 
of the level of ordinary skill in the art of the `690 patent. See ID at 
99. Please comment on what the level of ordinary skill in the art is 
with respect to the '690 patent. Please provide specific citations to 
the record and testimony. Although the parties are invited to brief 
their respective positions generally on this issue, the Commission is 
specifically interested in answers to the following questions:
    (a) Would it be appropriate for the Commission to modify the ALJ's 
determination to add the fields of applied rheology and/or applied 
material science to the types of experience that would satisfy the 
three-year minimum requirement in the ALJ's determination?
    (b) Would it be appropriate for the Commission to modify or remove 
the ALJ's determination to remove the three-year minimum experience 
requirement altogether?
    (c) Would it be appropriate for the Commission to modify the ALJ's 
familiarity requirement by, for example, requiring familiarity with at 
least one (as opposed to all) of the following technological areas: 
heat transfer, fuser roller design and technology, toner rheology, 
toner adhesion, release agent management, nip geometry, image fixing, 
paper path geometry, contact angle and surface roughness 
characteristics and testing of xerographic user rollers?
    (d) Would it be appropriate for the Commission to modify the ALJ's 
familiarity requirement to remove any technological areas not directly 
related to the interaction between a toner and a fuser roller?
    (2) The Commission has determined to review the ALJ's determination 
that the asserted claims of the `690 patent are not anticipated.
    (a) What are the ``above-mentioned surface physical properties'' 
mentioned in column 6, lines 4-5 of the `690 patent?
    (b) Please comment on whether examples 1 and 2 of the `690 patent 
inform the patent's statement in column 6 that PTFE 
(polytetrafkuoroethylene) and polytetrafluoroethylene/
perfluoralkylvinylether (PFA) are ``[s]pecific examples of materials 
for the fixing member which easily satisfy the above-mentioned surface 
physical properties.''
    (c) Under what circumstances (if any) would a PTFE fuser roller not 
have an adhesion constant ratio of less than about 8.0 when measuring 
receding and static contact angles using 2-nitropropane and n-heptane, 
respectively, as set forth in the `690 patent?
    (d) To what extent is the adhesion constant ratio dependent on the 
surface roughness of the fuser roller and composition of the toner? How 
does the subject matter of dependent claims 9-16 inform your response, 
if at all?
    (e) Is it appropriate under current legal precedent to consider the 
asserted patent's disclosure in determining what would be inherent in 
the prior art?
    (f) Please comment on whether the dependent claims of the `690 
patent are anticipated or obvious, assuming claim 1 of the `690 patent 
is found to be anticipated.
    (g) What materials are the OL 400 rollers and OL 1200 rollers 
coated with? Has this material changed since the critical date of the 
`690 patent?
    (3) Please state your position with respect to contributory 
infringement by Oki of the asserted claims of the `690 patent.
    (4) Please provide a summary of Ricoh's annual labor costs 
associated with the C200 domestic product. Please isolate costs by year 
and indicate any possible trends.
    (5) Are the C200 MFP's ``articles protected by the [`690] patent'' 
under section 337(a)(2)?

As to the `048, `771, and `866 patents, the Commission has determined 
that Oki did not violate section 337. The Commission has determined to 
review and take no position on the following findings and conclusions 
in the ID, however:

    (1) The finding that the Taylor reference (``A Telerobot on the 
World Wide Web'') (RX-281) does not anticipate or render obvious claims 
19-21 and 23 of the `048 patent;
    (2) The finding that U.S. Patent Nos. 5,657,448 and 5,784,622 do 
not anticipate or render obvious the asserted claims of the `048 
patent;
    (3) The ALJ's determination not to construe the following claim 
terms in the `048 patent: ``descriptor,'' ``resource identifier 
defining a resource and its location,'' ``command,'' and 
``interconnected, on-line documents'';
    (4) The construction of ``communications mechanism'' in claim 19 of 
the `048 patent and associated findings on the issues of infringement, 
domestic industry, and validity;
    (5) The finding that Japanese Published Application No. JP H07-
306934 does not anticipate or render obvious the asserted claims of the 
`771 patent; and
    (6) The finding that claim 13 of the `771 patent is infringed.
    The Commission has determined to review the ALJ's findings that the 
claim terms ``scan means,'' ``print means,'' ``copy means,'' and ``test 
means'' of the `866 patent, and the claim terms ``scanning means,'' 
``means for setting an operation code,'' and ``a code unit for setting 
an operation code'' of the `771 patent do not render the asserted 
claims indefinite. Upon review, the Commission has determined that the 
terms at issue are not indefinite under the relevant standard set forth 
in Aristocrat Technologies. v. International Game Technology, 521 F.3d 
1328, 1337 (Fed. Cir. 2008). The Commission adopts the ALJ's 
substantive analysis of these issues set forth in his Order No. 29 (May 
4, 2010).
    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

[[Page 73130]]

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 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 date that the `690 and 
`343 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 Thursday 
December 9, 2010. Reply submissions must be filed no later than the 
close of business on Friday December 17, 2010. 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: November 22, 2010.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-29910 Filed 11-26-10; 8:45 am]
BILLING CODE 7020-02-P