[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Notices]
[Pages 75910-75911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31134]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-726]


Certain Electronic Imaging Devices; Commission Determination To 
Affirm Finding of No Violation; Termination of the Investigation

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 affirm the final initial determination 
(``ID'') issued by the presiding administrative law judge (``ALJ'') on 
July 27, 2011 finding no violation of section 337 in the above-
captioned investigation.

FOR FURTHER INFORMATION CONTACT: Jia Chen, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-4737. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for

[[Page 75911]]

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 July 8, 2010, based on a complaint filed by Flashpoint Technology, 
Inc. (``Flashpoint'') of Peterborough, New Hampshire. 75 FR 39971 (Jul. 
8, 2010). The complaint alleges 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 electronic 
imaging devices by reason of infringement of claims 1, 11, and 21 of 
U.S. Patent No. 6,134,606 (``the '606 patent''), claims 1-7, 11-13, 16-
23, 26, 30-32, 40, and 41 of U.S. Patent No. 6,262,769 (``the '769 
patent''), and claims 1-14 and 16 of U.S. Patent No. 6,163,816 (``the 
'816 patent''). On April 7, 2011, the ALJ issued Order No. 36 
terminating the investigation as to all claims of the '606 patent. The 
proposed respondents are Nokia Corporation of Espoo, Finland and Nokia, 
Inc. of Irving, Texas (collectively, ``Nokia''); Research In Motion of 
Waterloo, Ontario, Canada and Research In Motion Corp. of Irving, Texas 
(collectively, ``RIM''); LG Electronics, Inc. of South Korea, LG 
Electronic U.S.A., Inc. of Englewood Cliffs, New Jersey, and LG 
Electronics MobileComm U.S.A. of San Diego, California (collectively, 
``LG''); and HTC Corporation of Taiwan and HTC America, Inc. of 
Bellevue, Washington (collectively, ``HTC''). Nokia, RIM, and LG were 
terminated from the investigation on the basis of settlement 
agreements.
    On March 8, 2011, the Commission determined not to review the ALJ's 
Order No. 18 granting Flashpoint's motion for summary determination 
that it has satisfied the economic prong of the domestic industry 
requirement. On July 28, 2011, the ALJ issued the subject ID finding no 
violation of Section 337 by HTC. Specifically, the ALJ found that the 
accused HTC Android smartphones and the accused HTC Windows Phone 7 
(``WP7'') smartphones do not infringe the asserted claims of the '769 
patent or the asserted claims of the '816 patent. The ALJ also found 
that HTC has not established that the asserted claims of the '769 
patent are invalid for obviousness in view of the prior art and that 
Flashpoint has not established that the asserted claims of the '769 
patent are entitled to an earlier date of invention than that of the 
patent's filing date. The ALJ further found that HTC has not 
established that the asserted claims of the '816 patent are anticipated 
by the prior art, but that HTC has established that the asserted claims 
of the '816 patent are invalid under the on-sale bar of 35 U.S.C. 
102(b). On July 10, 2011, Flashpoint, HTC and the Commission 
investigative attorney each filed a petition for review.
    On September 26, 2011, the Commission determined to review (1) 
Infringement of the asserted claims of the '769 patent by the accused 
HTC Android smartphones, (2) infringement of the asserted claims of the 
'769 patent by the accused HTC WP7 smartphones, (3) the technical prong 
of the domestic industry requirement for the '769 patent with respect 
to the licensed Motorola smartphones, (4) the technical prong of the 
domestic industry requirement for the '769 patent with respect to the 
licensed Apple smartphones, and (5) the enforceability of the asserted 
patents under the doctrines of implied license and exhaustion. The 
Commission also determined to review and to take no position on (a) 
anticipation of the asserted claims of the '816 patent under 35 U.S.C. 
102 in view of the prior art references and (b) obviousness of the 
asserted claims of the '816 patent under 35 U.S.C. 103 in view of the 
prior art references. Finally, the Commission determined to deny 
complainant's request for oral argument. The Commission requested that 
the parties brief their positions on the issues on review with 
reference to the applicable law and the evidentiary record.
    Having examined the record of this investigation, including the 
ALJ's final ID and the submissions of the parties, the Commission has 
determined to affirm the ALJ's determination of no violation of Section 
337 with respect to the '769 patent on the bases that (1) the accused 
HTC Android smartphones and the accused HTC WP7 smartphones do not 
infringe the '769 patent, and (2) respondent has established that it 
has an implied license to practice the '769 patent with respect to the 
accused WP7 smartphones. The Commission has determined to take no 
position on the ALJ's finding that respondent has not established the 
right to practice the '769 patent with respect to the accused WP7 
smartphones under the defense of patent exhaustion. The Commission has 
also determined to take no position on the ALJ's finding that 
complainant has not met the technical prong of the domestic industry 
requirement for the '769 patent.
    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).

    By order of the Commission.

     Issued: November 29, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-31134 Filed 12-2-11; 8:45 am]
BILLING CODE 7020-02-P