[Federal Register Volume 76, Number 247 (Friday, December 23, 2011)]
[Notices]
[Pages 80402-80403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32869]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-710]


Certain Personal Data and Mobile Communications Devices and 
Related Software; Final Determination Finding Violation of Section 337; 
Issuance of a Limited Exclusion Order; 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 found a violation of section 337 in this investigation 
and has issued a limited exclusion order prohibiting importation of 
infringing personal data and mobile communications devices and related 
software. The Commission has determined that exclusion of articles 
subject to this order shall commence on April 19, 2012.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2532. 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 April 6, 2010, based on a complaint filed by Apple Inc., and its 
subsidiary NeXT Software, Inc., both of Cupertino, California 
(collectively, ``Apple''), alleging a violation of section 337 in the 
importation, sale for importation, and sale within the United States 
after importation of certain personal data and mobile communications 
devices and related software that infringe certain U.S. patents. 75 FR 
17434 (Apr. 6, 2010). The notice of investigation named as respondents 
High Tech Computer Corp. of Taoyuan City, Taiwan and its United States 
subsidiaries HTC America Inc. of Bellevue, Washington, and Exedia, Inc. 
of Houston, Texas (collectively, ``HTC'').
    Several patents that had been asserted by Apple in this 
investigation were earlier asserted by Apple in Investigation No. 337-
TA-704 against Nokia Corp. of Espoo, Finland and Nokia Inc. of White 
Plains, New York (collectively, ``Nokia''). On motion by the Commission 
investigative attorney (``IA'') in the 704 investigation and by the 
respondents in both investigations, the Chief ALJ transferred Apple's 
assertion of overlapping patents against Nokia from the 704 
investigation into the 710 investigation. See Inv. No. 337-TA-704, 
Order No. 5 (Apr. 26, 2010). However, Apple and Nokia entered a 
settlement agreement, and on July 21, 2011, the Commission determined 
not to review the presiding ALJ's termination of the investigation as 
to Nokia in the 710 investigation based on settlement.
    On July 15, 2011, the ALJ issued the final ID. By that time, the 
investigation had narrowed to certain claims of four patents: claims 1, 
3, 8, 15, and 19 of U.S. Patent No. 5,946,647 (``the '647 patent''); 
claims 1, 2, 24, and 29 of U.S. Patent No. 6,343,263 (``the '263 
patent''); claims 1, 5, and 6 of U.S. Patent No. 5,481,721 (``the '721 
patent''); and claims 1 and 7 of U.S. Patent No. 6,275,983 (``the '983 
patent''). The final ID found a violation of section 337 by HTC by 
virtue of the infringement of claims 1, 8, 15, and 19 of the '647 
patent, and claims 1, 2, 24, and 29 of the '263 patent. The final ID 
found that claim 3 of the '647 patent was not infringed. In addition, 
the final ID found that Apple had demonstrated neither infringement nor 
Apple's own practice (for purposes of establishing the existence of a 
domestic industry) of claims 1, 5, and 6 of the '721 patent and claims 
1 and 7 of the '983 patent. The final ID concluded that HTC had not 
demonstrated that any of the asserted patent claims were invalid. The 
ALJ recommended the issuance of a limited exclusion order but that zero 
bond be posted during the Presidential review period.
    HTC, Apple, and the IA each petitioned for review of the final ID. 
On September 15, 2011, the Commission determined to review several 
issues regarding each of the four patents asserted in this 
investigation. 76 FR 58,537 (Sept. 21, 2011). The parties filed 
briefing on the issues under review, remedy, the public interest, and 
bonding. In addition, the following non-parties submitted comments on 
the public interest: the Association for Competitive Technology; Google 
Inc.; and T-Mobile USA., Inc. (``T-Mobile'').
    Having examined the record of this investigation, including the 
ALJ's final ID and the aforementioned briefing and comments, the 
Commission has determined that there is a violation of section 337 by 
reason of the importation and sale of articles that infringe claims 1 
and 8 of the '647 patent. The Commission has determined to reverse the 
ALJ's finding of violation as to claims 15 and 19 of the '647 patent 
and as to the asserted claims of the '263 patent. The Commission 
affirms the ALJ's conclusion that there has been no violation as to the 
'721 and '983 patents.
    The Commission has further determined that the appropriate remedy 
is a limited exclusion order prohibiting the entry of personal data and 
mobile communications devices and related software that infringe claims 
1 or 8 of the '647 patent. The Commission has also determined that the 
public interest factors enumerated in section 337(d), 19 U.S.C. 
1337(d), do not preclude the issuance of the limited exclusion order. 
Notwithstanding the foregoing, the Commission has determined that based 
on consideration of competitive conditions in the United States 
economy, the exclusion of articles subject to the order shall commence 
on April 19, 2012 to provide a transition period for U.S. carriers. In 
addition, the Commission has determined, based on consideration of the 
effect of exclusion on United States consumers, that until December 19, 
2013, HTC may import refurbished handsets to be provided to consumers 
as replacements under warranty or an insurance contract (whether the 
warranty or contract is offered by HTC, a carrier, or by a third 
party). This exemption does not permit HTC to call new devices 
``refurbished'' and to import them as replacements. The Commission has 
determined not to issue a cease and desist order and that

[[Page 80403]]

zero bonding is required during the period of Presidential review, 19 
U.S.C. 1337(j). The investigation is terminated.
    The Commission's order and opinion were delivered to the President 
and the United States Trade Representative on the day of their 
issuance.
    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 19, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-32869 Filed 12-22-11; 8:45 am]
BILLING CODE 7020-02-P