[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Notices]
[Pages 31983-31985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13619]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-701]


In the Matter of Certain Electronic Devices, Including Mobile 
Phones, Portable Music Players, and Computers; 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 March 25, 2011, finding no violation of section 337 of the 
Tariff Act of 1930, 19 U.S.C. 1337, in this investigation.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Esq., Office of the 
General Counsel, U.S. International

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Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 
(202) 205-3042. 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 January 28, 2010, based on a complaint filed by Nokia Corporation of 
Finland and Nokia Inc. of White Plains, New York (collectively, 
``Nokia''). 75 FR 4583-4 (Jan. 28, 2010). The complaint alleged 
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 
electronic devices, including mobile phones, portable music players, 
and computers by reason of infringement of various claims of United 
States Patent Nos. 6,895,256 (``the '256 patent''); 6,518,957 (``the 
'957 patent''); 6,714,091 (``the '091 patent''); 6,834,181 (``the '181 
patent''); 6,924,789 (``the '789 patent''); 6,073,036 (subsequently 
terminated from the investigation); and 6,262,735 (subsequently 
terminated from the investigation). The complaint named Apple Inc. of 
Cupertino, California as respondent.
    On March 25, 2011, the ALJ issued his final ID, finding no 
violation of section 337 by Respondents with respect to any of the 
asserted claims of the asserted patents. Specifically, the ALJ found 
that the accused products do not infringe the asserted claims of the 
'091 patent. The ALJ also found that none of the cited references 
rendered the asserted claims obvious and that the claims were not 
invalid under 35 U.S.C. 112 for failure to disclose the best mode. 
Regarding the '181 patent, the ALJ found that the accused products do 
not infringe its asserted claims. The ALJ also found that none of the 
cited references anticipated or rendered obvious the asserted claims. 
With respect to the '256 patent, the ALJ found that the accused 
products failed to literally infringe the asserted claims and failed to 
infringe under the doctrine of equivalents. The ALJ also found that the 
asserted claims were not invalid for obviousness and were not rendered 
unenforceable due to inequitable conduct. Concerning the '789 patent, 
the ALJ found that the accused products met all the limitations of 
asserted claim 5 under the doctrine of equivalents. The ALJ, however, 
found that the prior act anticipated and rendered asserted claim 5 
invalid. The ALJ concluded that an industry exists within the United 
States that practices the '789 patent but that a domestic industry does 
not exist with respect to the '091 patent, the '181 patent and the '256 
patent as required by 19 U.S.C. 1337(a)(2) and (3).
    On April 11, 2011, Nokia and the Commission investigative attorney 
(``IA'') filed petitions for review of the ID. That same day, Apple 
filed a contingent petition for review of the ID. On April 19, 2011, 
Nokia and Apple filed responses to the various petitions and contingent 
petition for review. The IA filed a combined response to Nokia's 
petition for review and Apple's contingent petition for review on April 
22, 2011.
    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 the findings 
related to the '181 patent and the '256 patent. The Commission has 
determined not to review any issues related to the '957 patent, the 
'091 patent, and the '789 patent, and terminates those patents from the 
investigation.
    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:
    1. Does the claim term ``multiple acoustic cavities each having an 
acoustic volume'' recited in asserted claim 1 of the '181 patent 
require each ``acoustic cavity'' to possess any particular acoustic 
property?
    2. Assuming that the '181 patent does not require each ``acoustic 
cavity'' to possess any particular acoustic properties, does 
Marqvardsen (International Publication No. WO 00/38475) anticipate 
asserted claim 1? See ID at 117.
    3. Do the accused products satisfy the ``Integrated Mobile Terminal 
Processor'' limitation recited in asserted claim 1 of the '256 patent 
under the ALJ's construction of that limitation? See Markman Order 
(Order No. 53) at 41-43.

    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

[[Page 31985]]

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 
with respect to the '256 patent and the '181 patent. 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 patent expires 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, June 9, 2011. Reply submissions must be filed no later than 
the close of business on Thursday, June 16, 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.
    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: May 26, 2011.

    By order of the Commission.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-13619 Filed 6-1-11; 8:45 am]
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