[Federal Register Volume 76, Number 78 (Friday, April 22, 2011)]
[Notices]
[Pages 22726-22728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9784]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-694]


Certain Multimedia Display and Navigation Devices and Systems, 
Components Thereof, and Products Containing Same; Notice of Commission 
Determination To Extend the Target Date; Request for Supplemental 
Briefing

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 extend the target date for completion of 
the above-captioned investigation from April 18, 2011, to June 17, 
2011. The Commission is requesting supplemental briefing from the 
public and from the parties to the investigation with respect to 
certain questions set forth below.

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

[[Page 22727]]

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 the instant 
investigation on December 16, 2009, based on a complaint filed by 
Pioneer Corporation of Tokyo, Japan and Pioneer Electronics (USA) Inc. 
of Long Beach, California (collectively, ``Pioneer''). 74 FR 66676 
(Dec. 16, 2009). The complaint 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 multimedia display and 
navigation devices and systems, components thereof, and products 
containing same by reason of infringement of various claims of United 
States Patent Nos. 5,365,448 (``the '448 patent''), 5,424,951 (``the 
'951 patent''), and 6,122,592 (``the '592 patent''). The complaint 
named Garmin International, Inc. of Olathe, Kansas, Garmin Corporation 
of Taiwan (collectively, ``Garmin'') and Honeywell International Inc. 
of Morristown, New Jersey (``Honeywell'') as the proposed respondents. 
Honeywell was subsequently terminated from the investigation.
    On December 16, 2010, the ALJ issued his final initial 
determination (``ID''). In his final ID, the ALJ found no violation of 
section 337 by Garmin. Specifically, the ALJ found that the accused 
products do not infringe claims 1 and 2 of the '448 patent, claims 1 
and 2 of the '951 patent, or claims 1 and 2 of the '592 patent. The ALJ 
found that the `592 patent was not proven to be invalid and that 
Pioneer has established a domestic industry under 19 U.S.C. 
1337(a)(3)(C). On February 23, 2011, the Commission determined to 
review the final ID in part.
    Target Date: The Commission has determined to extend the target 
date for completion of the investigation by sixty (60) days from April 
18, 2011 to June 17, 2011, to accommodate supplemental briefing.
    Supplemental Briefing Request: A domestic industry may be shown to 
exist, inter alia, by ``substantial investment'' in the 
``exploitation'' of an asserted patent. 19 U.S.C. 1337(a)(3)(C). Such 
investment may take the form of ``engineering, research and 
development, or licensing,'' but other kinds of investments are not 
precluded. See Certain Coaxial Cable Connectors and Components Thereof 
and Products Containing Same, Inv. No. 337-TA-650, Comm'n Op. at 45 
(Apr. 14, 2010). The following questions explore the domestic industry 
requirement in the context of a complainant that invests in licensing a 
patent portfolio, which includes the asserted patent among the licensed 
patents.
    (1) Assuming that the evidence in the record does not show the 
patent asserted in a section 337 investigation to have more or less 
value than the rest of the patents of a portfolio, to what extent 
should the Commission attribute total expenses in licensing the 
portfolio toward the complainant's investment in exploitation of the 
asserted patent under section 337(a)(3)(C)? Please comment on whether 
the statute authorizes the Commission to allocate to the asserted 
patent the amount of the total expenses divided by the number of 
patents in the portfolio?
    (2) Assuming that the statute authorizes allocation of total 
licensing expenses across all of the patents in the portfolio, what is 
the significance of evidence demonstrating that at the time the 
licensing expenses were incurred, the complainant did or did not 
present information to potential licensees that the asserted patent was 
being practiced or infringed by the respondent or a third party? What 
is the significance of evidence showing that the asserted patent was 
more or less important or valuable than the others in the portfolio? 
What is the significance of evidence indicating that, while total 
expenses in licensing a portfolio may be substantial, the share of the 
expenses allocated to the asserted patent is not?
    (3) In light of any practical benefits of licensing a group of 
patents in a portfolio rather than licensing patents individually, does 
the statute permit expenses in the licensing of an entire portfolio to 
be considered an investment in the exploitation of the individual 
asserted patent?
    (4) How should licensing expenses and activities relating to (a) 
cross-licenses and (b) global portfolio licenses (i.e., U.S. and 
foreign patents) be treated under section 337(a)(3)(C)?
    (5) What is the nature and extent of the ``nexus'' between an 
asserted patent and a licensing expense or activity that is sufficient 
to prove that such expense or activity constitutes an investment in the 
asserted patent? What factors should be considered in determining 
whether the required nexus is established? What is the evidentiary 
showing required to prove a nexus between the asserted patent and the 
licensing activities and expenses in the context of a portfolio 
license?
    (6) Is a ``nexus'' between an asserted patent and a licensing 
activity sufficient to prove that expenses associated with that 
licensing activity are an investment in the asserted patent under 
section 337(a)(3)(C) even if other patents are involved? See ID at 165 
(citing Certain 3G Wideband Code Division Multiple Access (WCDMA) 
Handsets and Components Thereof, Inv. No. 337-TA-601, Order No. 20 
(unreviewed ID) (June 24, 2010)). If a ``nexus'' is sufficient, is the 
strength of that nexus relevant in determining the amount of investment 
in the asserted patent(s)? For example, is the number of patents 
included in a license relevant in determining the amount of investment 
in an asserted patent(s) compared to the expenses generally associated 
with licensing all of the patents? Is the breadth of technology covered 
by the portfolio, as a whole, relative to the breadth of technology 
covered by the asserted patent(s) relevant in determining the amount of 
investment in the asserted patent(s)?
    (7) In Certain Stringed Musical Instruments and Components Thereof, 
Inv. No. 337-TA-586, the Commission noted that ``the requirement for 
showing the existence of a domestic industry will depend on the 
industry in question, and the complainant's relative size.'' Comm'n Op. 
at 25-26 (May 16, 2008). Please comment on the appropriate context for 
determining whether a complainant's investments in licensing a 
portfolio of patents, which includes the asserted patent, is 
``substantial'' within the meaning of section 337(a)(3)(C) in a 
particular industry? In other words, in determining whether 
appropriately identified investments in licensing the portfolio 
constitute a ``substantial investment in [the asserted patent's] 
exploitation'' within the meaning of the statute, against what specific 
measure should those investments be assessed? In discussing the context 
for determining whether portfolio licensing investments are 
substantial, please discuss relevant factors, criteria, and evidence 
that should be considered in determining whether the complainant's 
licensing investments are ``substantial'' in the

[[Page 22728]]

context of a portfolio license. Please include in the discussion, how 
these factors, criteria, and evidence may vary depending on the 
industry in question and complainant's relative size.
    (8) Please comment on the significance of whether and to what 
extent the complainant receives royalties under the license agreement 
or acquires other rights or benefits as a result of a portfolio license 
in assessing whether the complainant's licensing expenses and 
activities constitute a ``substantial investment in [the asserted 
patent's] exploitation.''
    (9) Please comment on the significance of whether and to what 
extent a complainant engages in ancillary exploitation activities that 
frequently accompany licensing efforts, such as development, 
engineering, or servicing of licensed articles, in assessing whether a 
complainant has made a ``substantial investment in [the asserted 
patent's] exploitation'' through licensing.
    (10) For the parties to the investigation only:
    a. Please cite and discuss the specific evidence of record in this 
investigation supporting your position as to each of the above 
questions.
    b. Assuming the licensing efforts of complainant Pioneer and 
Discovision Associaties are viewed together, to what extent did the 
expenses in licensing Pioneer's navigation portfolio (before Pioneer 
retained outside counsel) represent Pioneer's investment in licensing 
the asserted patents? Please support your response with citations to 
the record.
    c. Please comment on the weight that should be given to documents 
concerning complainant's licensing activities and expenses from which 
information has been redacted. Please discuss the significance, vel 
non, of the content of the redacted documents to the complainant's 
licensing activities and investments in view of such redactions.
    Parties to the investigation and members of the public are invited 
to file written submissions addressing the questions set forth above 
regarding the domestic industry requirement of section 337(a)(3)(C). 
Opening submissions of the parties to the investigation are due no 
later than May 3, 2011. A public version of these submissions must be 
filed with the Secretary no later than May 10, 2011. Reply submissions 
of the parties to the investigation are due no later than May 17, 2011. 
Written submissions from members of the public will be accepted anytime 
on or before May 17, 2011. 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 and may 
be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov.
    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 210.42-50 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-50).

    By order of the Commission.

     Issued: April 18, 2011.
James R. Holbein,
Acting Secretary to the Commission.
[FR Doc. 2011-9784 Filed 4-21-11; 8:45 am]
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