[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Notices]
[Pages 79708-79710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32732]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-721]


Certain Portable Electronic Devices And Related Software; 
Submission for OMB Review; Comment Request; Determination To Review In 
Part A Final Initial Determination; Schedule for Filing Written 
Submissions

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 October 17, 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: Amanda S. Pitcher, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2737. 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 (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 June 17, 2010, based on a complaint filed by HTC Corporation 
(``HTC'') of Taiwan. 75 FR 34,484-85 (June 17, 2010). The complaint 
alleged violations of the Tariff Act of 1930 (19 U.S.C. 1337) in the 
importation into the United States, the sale for importation, and sale 
within the United States after importation of certain portable 
electronic devices and related software by reason of infringement of 
various claims of United States Patent Nos. 6,999,800 (``the '800 
patent''); 5,541,988 (``the '988 patent''); 6,320,957 (``the '957 
patent''); 7,716,505 (``the '505 patent''); and 6,058,183 (``the '183 
patent'') (subsequently terminated from the investigation). The 
complaint named Apple Inc. as the Respondent.
    October 17, 2011, the ALJ issued his final ID, finding no violation 
of section 337 by the respondent. Specifically, the ALJ found that the 
Commission has subject matter jurisdiction and that Apple did not 
contest that the Commission has in rem and in personam jurisdiction. 
The ALJ also found that there was an importation into the United 
States, sale for importation, or sale within the United States after 
importation of the accused portable electronic devices and related 
software. Regarding infringement, the ALJ found that Apple does not 
infringe claims 1-3 and 8-10 of the 800 patent, claims 1 and 10 of the 
'988 patent, claims 8-9 of the '957 patent and claims 1-2 of the '505 
patent. With respect to invalidity, the ALJ found that the asserted 
claims are not invalid. Finally, the ALJ concluded that an industry 
exists within the United States that practices the '988 and '957 
patents, but not the '800 and '505 patents as required by 19 U.S.C. 
1337(a)(2).
    On October 31, 2011 HTC filed a petition for review of the ID, 
which also included a contingent petition for review. Also on October 
31, 2011, Apple filed a contingent petition for review. On November 8, 
2011, the parties filed responses to the petition and contingent 
petitions for review.
    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 ALJ's 
findings

[[Page 79709]]

with respect to the '800 patent. The Commission also determined to 
review the ALJ's construction and finding that the accused portable 
electronic devices and related software do not meet the ``manually 
operable selector'' limitation of independent claim 1 of the '988 
patent and independent claim 8 of the '957 patent. Having reviewed this 
limitation, the Commission declines to a take position on it. The 
Commission has determined not to review any other issues in the ID. The 
investigation is therefore terminated with respect to the '500, '988 
and '957 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 a response to the following questions:
    1. In the Accused iPhones, is the applications processor power 
management unit (AP PMU) a part of the personal digital assistant 
(PDA), the mobile phone system, or both?
    2. In the Accused iPhones, when the VDD--FAULT--LOWER threshold is 
met, irrespective of whether the SOC1 threshold is met, does the PDA, 
the mobile phone system, or both, switch between modes? In the Accused 
iPhones, when the SOC1 threshold is met, irrespective of whether the 
VDD--FAULT--LOWER threshold is met, does the PDA, the mobile phone 
system, or both, switch between modes?
    3. Do the claims, specification, or prosecution history require 
that only one of the systems (i.e., either the mobile phone system or 
PDA) power off when each of the thresholds is met?
    4. Are there separate thresholds in HTC's domestic industry 
products that result in the mobile phone system turning off separately 
from the PDA? If the mobile phone and PDA systems turn off 
simultaneously, is there record evidence proving that the thresholds 
are separately set to the same limits?
    5. Is claim 1 of the '800 patent anticipated by the Qualcomm pdQ 
device? Please explain where each element is present in the pdQ device.
    6. Do the Accused iPhones meet the ``switching the mobile phone 
system from standby mode to sleep mode when the mobile phone system has 
been idle for a first period of time'' limitation of claim 1 of the 
'800 patent? \1\
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    \1\ Questions 6 and 7 pertain to issues argued by the parties 
but not addressed in the ID. The Commission's rules of practice and 
procedure provide that the initial determination of the ALJ shall 
include ``* * * conclusions and the reasons or bases therefor 
necessary for the disposition of all material issues of fact, law, 
or discretion presented in the record * * *.'' 19 CFR 210.42(d). The 
Commission generally anticipates that the ALJs will adjudicate all 
issues presented in the record.
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    7. Do the HTC domestic industry products meet the ``switching the 
mobile phone system from standby mode to sleep mode when the mobile 
phone system has been idle for a first period of time'' limitation of 
claim 1 of the '800 patent?
    8. Do the Accused iPhones meet the ``switching the PDA system from 
normal mode to sleep mode when the PDA system has been idle for a 
second period of time'' limitation of claim 1 of the '800 patent?
    9. Although the Commission has determined to review the '800 patent 
in its entirety, can the parties respond to Apple's argument that, 
because HTC did not petition for review of the limitations of claim 1 
of the `800 patent on which the ALJ made no findings concerning 
infringement, ``HTC has therefore waived any argument on review that 
these claim limitations are present in the accused iPhones?'' 
Respondent Apple Inc.'s Response to HTC's Petition for Review of 
Initial Determination at 3. In your response, please reference any 
relevant Section 337 or Federal Circuit precedent.
    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 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. Complainant and OUII are also requested to submit 
proposed remedial orders for the Commission's consideration.
    Complainant is also requested to state the date that the '800 
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 Friday, December 30, 2011. 
Reply submissions must be filed no later than the close of business on 
Friday, January 6, 2012. No further submissions on these issues will be 
permitted unless otherwise ordered by the Commission. The page limit 
for the parties' initial submissions on the questions posed by the 
Commission is 50 pages. The parties reply submissions, if any, are 
limited to 25 pages.
    Persons filing written submissions must file on or before the 
deadlines stated above and by noon the following business day submit 8 
true copies thereof 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

[[Page 79710]]

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 non-confidential written submissions 
will be available for public inspection on EDIS.
    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: December 16, 2011.
James R. Holbein,
Secretary to the Commission.

[FR Doc. 2011-32732 Filed 12-21-11; 8:45 am]
BILLING CODE 7020-02-P