[Federal Register Volume 77, Number 56 (Thursday, March 22, 2012)]
[Notices]
[Pages 16860-16862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6914]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-750]


Certain Mobile Devices, and Related Software Thereof; Notice of 
Commission Decision To Review in Part and on Review To Affirm a Final 
Determination Finding No Violation of Section 337; Termination of 
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part the presiding 
administrative law judge's (``ALJ'') final initial determination 
(``ID'') issued on January

[[Page 16861]]

13, 2012, finding no violation of section 337 of the Tariff Act of 
1930, 19 U.S.C. Sec.  1337 in the above-captioned investigation, and on 
review, to affirm the ID's finding of no violation. The investigation 
is hereby terminated.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2301. 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 November 30, 2010, based on a complaint filed by Apple Inc., f/k/a 
Apple Computer, Inc., of Cupertino, California. 75 FR 74081-82. The 
complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. Sec.  1337, in the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain mobile devices and related software by 
reason of infringement of certain claims of U.S. Patent Nos. 7,812,828 
(``the `828 Patent''); 7,663,607 (``the `607 Patent''); and 5,379,430 
(``the `430 Patent''). The Commission's notice of investigation named 
Motorola, Inc. n/k/a Motorola Solutions of Schaumburg, Illinois 
(``Motorola Solutions'') and Motorola Mobility, Inc. (``Motorola'') of 
Libertyville, Illinois as respondents. The Office of Unfair Import 
Investigation was named as a participating party. The Commission 
subsequently terminated Motorola Solutions as a respondent based on 
withdrawal of allegations pursuant to Commission Rule 210.21(a)(1) (19 
CFR 210.21(a)(1)). Notice (Aug. 31, 2011).
    On January 13, 2012, the ALJ issued his final ID, finding no 
violation of Section 337. Specifically, the ALJ determined that accused 
products do not infringe the asserted claims of the `828 Patent either 
literally or under the doctrine of equivalents (``DOE''). The ALJ also 
found that the asserted claims of the `828 Patent are not invalid. The 
ALJ further found that the accused products literally infringe the 
asserted claims of the `430 and `607 patents, but do not infringe under 
DOE. The ALJ also found that the asserted claims of the `430 Patent are 
invalid under 35 U.S.C. Sec.  102 for anticipation, and that the 
asserted claims of the `607 Patent are invalid under 35 U.S.C. Sec.  
102 for anticipation and under 35 U.S.C. Sec.  103 for obviousness. The 
ALJ further found that Apple has standing to assert the `430 Patent, 
and that Motorola is not licensed to practice the `430 Patent. The ID 
also includes the ALJ's recommended determination on remedy and bonding 
in the event that the Commission reversed his finding of no violation 
of Section 337.
    On January 30, 2012, Apple filed a petition for review of certain 
aspects of the ID's findings concerning claim construction 
infringement, and validity. Also on January 30, 2012, Motorola filed a 
contingent petition for review of certain aspects of the ID's findings 
concerning claim construction infringement, validity, domestic 
industry, standing, and licensing. On February 7, 2012, Motorola filed 
a response to Apple's petition for review. Also on February 7, 2012, 
Apple filed a response to Motorola's contingent petition for review. 
Further on February 7, 2012, the Commission investigative attorney 
filed a joint response to both Apple's and Motorola's petitions.
    On February 22, 2012, non-party Google Inc. filed a public interest 
statement in response to the post-RD Commission Notice issued on 
January 25, 2012. See Corrected Notice of Request for Statements on the 
Public Interest (Jan. 25, 2012). On February 23, Apple filed a post-RD 
statement on the public interest pursuant to section 201.50(a)(4) of 
the Commission's Rules of Practice and Procedure (19 CFR 201.50(a)(4)), 
along with a motion for leave to file the statement out of time.
    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 determines to review the ID for the 
limited purpose of clarifying that the ALJ also found claims 24-26, and 
29 of the `828 Patent not infringed, and on review, to affirm this 
finding. We note that the ID does not explicitly address the issue of 
infringement of claims 24-26 and 29 of the `828 Patent, but finds no 
violation of Section 337 by reason of infringement of claims 1, 2, 10, 
11, 24-26, and 29 of the `828 Patent. See ID at 205. We find, however, 
that the ALJ's analysis of the claim limitations ``mathematically 
fitting an ellipse'' and ``mathematically fit an ellipse'' with respect 
to claims 1 and 10, respectively, of the `828 Patent reflects the 
arguments and evidence adduced by Apple with respect to infringement of 
claims 24-26 and 29. Apple presented no argument or evidence concerning 
infringement of the limitation ``means for fitting an ellipse to at 
least one of the pixel groups'' in claim 24 and, by dependency, claims 
25-26 and 29 of the `828 Patent separate from its infringement 
arguments concerning claims 1 and 10. Accordingly, Apple has failed to 
meet its burden to demonstrate infringement of claims 25-26 and 29 of 
the `828 Patent.
    The Commission also determines to review the ID's finding that the 
asserted claims of the `607 Patent are obvious under 35 U.S.C. Sec.  
103 in view of the reference ``SmartSkin: An Infrastructure for 
Freehand Manipulation on Interactive Surfaces'' by Jun Rekimoto either 
alone or in combination with Japan Unexamined Patent Application 
Publication No. 2002-342033A to Jun Rekimoto, and on review, modify the 
ID but affirm the finding that Motorola has demonstrated by clear and 
convincing evidence that the asserted claims of the `607 Patent are 
invalid under 35 U.S.C. Sec.  103. The Commission's reasoning will be 
set forth in an opinion to be issued shortly.
    The Commission also determines to review the ID's finding that the 
accused products infringe claims 1, 3 and 5 of the `430 Patent, and on 
review, affirm the ID's finding of direct infringement, but find that 
the analysis of infringement is incomplete in the ID because the ID's 
analysis does not address the Commission's decision in Certain 
Electronic Devices with Image Processing Systems, Components Thereof, 
And Associated Software, 337-TA-724, Comm. Op. at 10-20 (Dec. 21, 
2011).
    The Commission has determined not to review the remaining issues 
decided in the ID. Apple's motion for leave to file its public interest 
comments out of time is denied as moot.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. Sec.  
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.

[[Page 16862]]

    Issued: March 16, 2012.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2012-6914 Filed 3-21-12; 8:45 am]
BILLING CODE 7020-02-P