[Federal Register Volume 77, Number 64 (Tuesday, April 3, 2012)]
[Notices]
[Pages 20048-20050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7628]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-741/749]


Certain Liquid Crystal Display Devices, Including Monitors, 
Televisions, Modules, and Components Thereof; Notice of Commission 
Determination To Review-In-Part a Final 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 certain portions of the final 
initial determination (``ID'') issued by the presiding administrative 
law judge (``ALJ'') on January 12, 2012 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 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 Inv. No. 337-TA-
741 on October 18, 2010, based on a complaint filed by Thomson 
Licensing SAS of France and Thomson Licensing LLC of Princeton, New 
Jersey (collectively ``Thomson''). 75 FR 63856 (Oct. 18, 2010). The 
complaint alleged violations of section 337 of the Tariff Act of 1930, 
as amended 19 U.S.C. 1337, by reason of infringement of various claims 
of United States Patent Nos. 6,121,941 (``the '941 patent''); 5,978,063 
(``the '063 patent''); 5,648,674 (``the '674 patent''); 5,621,556 
(``the '556 patent''); and 5,375,006 (``the '006 patent''). The 
Commission instituted Inv. No. 337-TA-749 on November 30, 2010, based 
on a complaint filed by Thomson. 75 FR 74080 (Nov. 30, 2010). The 
complaint alleged violations of section 337 of the Tariff Act of 1930 
by reason of infringement of various claims of the '063, '556, and '006 
patents. On January 5, 2011, the Commission consolidated the two 
investigations. The respondents are Chimei InnoLux Corporation of 
Miaoli County, Taiwan and InnoLux Corportation of Austin, Texas 
(collectively, ``CMI''); MStar Semiconductor Inc. of ChuPei, Taiwan 
(``MStar''); Qisda Corporation of Taoyuan, Taiwan and Qisda America 
Corporation of Irvine, California (collectively, ``Qisda''); BenQ 
Corporation of Taipei, Taiwan, BenQ America Corporation of Irvine, 
California, and BenQ Latin America Corporation of Miami, Florida 
(collectively ``BenQ''); Realtek Semicondustor Corp. of Hsinchu, Taiwan 
(``Realtek''); and AU Optronics Corp. of Hsinchu, Taiwan and AU 
Optronics Corp. America of Houston, Texas (collectively ``AUO'').
    On January 12, 2012, the ALJ issued the subject ID finding a 
violation of Section 337 with respect to the '674 patent. The ALJ found 
that the CMI accused products including the Type 2 Array Circuitry and 
any Qisda or BenQ accused products incorporating these CMI accused 
products infringe the

[[Page 20049]]

asserted claims of the '674 patent. The ALJ found that no other accused 
products infringe the '674 patent. The ALJ also found that no accused 
products infringe the asserted claims of the '063 patent, the '006 
patent, the '556 patent, or the '941 patent. The ALJ also found that 
claims 1, 2, 3, 4, 8, 11, 12, 14, and 18 of the '063 patent are invalid 
for obviousness under 35 U.S.C. 103, and that claims 4 and 14 of the 
'006 patent are invalid as anticipated under 35 U.S.C. 102. The ALJ 
further found that claim 17 of the '063 patent, claim 7 of the '006 
patent, and the asserted claims of the '556 patent, the '674 patent, 
and the '941 patent are not invalid. The ALJ concluded that a domestic 
industry exists in the United States that exploits the asserted patents 
as required by 19 U.S.C. 1337(a)(2). On January 25, 2011, Thomson, CMI, 
MStar, Realtek, and AUO each filed a petition for review of the ID. 
BenQ and Qisda filed a joint petition for review incorporating the 
other respondents' arguments by reference.
    Having examined the record of this investigation, including the 
ALJ's final ID and the submissions of the parties, the Commission has 
determined to review (1) claim construction of the limitation ``layer'' 
of the asserted claims of the '006 patent; (2) infringement of the 
asserted claims of the '006 patent; (3) anticipation of claims 4 and 7 
of the '006 patent by Scheuble; (4) the claim construction of the 
limitations ``mechanically rubbing''/``mechanically rubbed,'' ``a 
plurality of spacing elements,'' and ``an affixing layer'' of the 
asserted claims of the '063 patent; (5) infringement of the asserted 
claims of the '063 patent; (6) obviousness of the asserted claims of 
the '063 patent in view of Sugata and Tsuboyama; (7) whether Lowe and 
Miyazaki are prior art to the asserted claims of the '063 patent; (8) 
anticipation of the asserted claims of the '063 patent by Lowe; (9) 
anticipation of the asserted claims of the '063 patent by Miyazaki; 
(10) obviousness of the asserted claim of the '556 patent in view of 
Takizawa and Possin; (11) anticipation and obviousness of the asserted 
claims of the '674 patent in view of Fujitsu; (12) claim construction 
of the ``second rate'' ``determined by'' limitation of the asserted 
claims of the '941 patent and the ``input video signal'' limitation of 
claim 4 of the '941 patent; (13) infringement of the asserted claims of 
the '941 patent; (14) anticipation of the asserted claims of the '941 
patent by Baba; (15) exclusion of evidence of the ViewFrame II+2 LCD 
Panel; and (16) economic prong of the domestic industry requirement.
    The Commission has also determined to review and to take no 
position on the claim construction of the terms ``drain electrodes'' 
and ``source electrodes'' of the '556 patent.
    The parties should brief their positions on the issues on 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:

    Question 1: The ALJ construed the term ``a plurality of spacing 
elements'' of claims 1 and 11 of the '063 patent as ``two or more 
structures, not physically connected to one another, which 
structures serve to substantially uniformly separate two substrates, 
said structures formed on one of said two substrates and contacting 
the second substrate.'' ID at 43. Does the proper construction 
require that the ``spacing elements'' contact the ``second 
substrate?'' Does certain language from claim 1 (``the two 
substrates remaining substantially uniformly separated from each 
other by said spacing elements'') and from claim 11 (``said second 
substrate being kept at a substantially uniform distance from said 
first substrate by said spacing elements'') require that the spacing 
elements physically separate the two substrates? Please cite to 
evidence in the record showing the understanding of person of 
ordinary skill in the art at the time of the '063 patent invention.
    Question 2: The ALJ construed ``an affixing layer'' of claim 1 
of the '063 patent as ``a stratum of material that attaches the 
spacing elements to a substrate, and which is separate and distinct 
from said spacing elements.'' ID at 34. Is this construction 
supported by the intrinsic evidence? In particular, does the 
preferred embodiment of the '063 patent specification disclose 
forming spacers directly from the affixing layer?
    Question 3: The ALJ construed the term ``a plurality of spacing 
elements separate from one another'' as ``two or more structures, 
not physically connected to one another, which structures serve to 
substantially uniformly separate two substrates, said structures 
formed on one of said two substrates and contacting the second 
substrate.'' ID at 43. Do the main photospacers in the accused CMI 
modules meet the limitation under the ALJ's construction? Please 
cite to the evidence in the record.
    Question 4: With respect to the '063 patent, the ALJ stated in 
the ID that [[ ]] ID at 334. He also stated that [[ Id. Are these 
accurate statements? Please provide citations to the record as 
support. In addition, please identify [[ ]].
    Question 5: At the time of the invention of the '063 patent, 
would it have been obvious to combine the teachings of Sugata and 
Tsuboyama, such that the substrate on which the spacers are formed 
in Sugata would be rubbed after the spacers are formed? Is the 
combination of the teachings of Sugata and Tsuboyama a combination 
of known elements that yield predictable results? Are there any 
secondary considerations such as commercial success that would be 
probative of non-obviousness? Please cite evidence in the record as 
support.
    Question 6: Has Thomson produced sufficient independent 
corroborating evidence showing that the inventions of each of the 
asserted claims of the '063 patent have been reduced to practice 
before the filing dates of Lowe and Miyazaki? In particular, please 
discuss whether the evidence shows that display cells embodying the 
inventions have been tested and shown to work for their intended 
purposes.
    Question 7: Does the intrinsic evidence support the construction 
of the term ``plate'' recited in claim 3 of the '006 patent to 
require a solid and not liquid material? ID at 220. Can the term 
``plate'' include a liquid compensation layer sealed between two 
glass substrates? See CMI Petition at 31. Please cite to the 
evidence of the record as support. Under the proper construction of 
the term ``plate,'' does Scheuble anticipate claims 4 and 7 of the 
'006 patent?
    Question 8: With respect to infringement of the asserted claims 
of the '006 patent, what is an acceptable range of variance in the 
measurement of n2 and n3, given the probability of errors in any 
real-world measurement of the index of refraction? What are the 
values and measurement errors of n2 and n3 for the entire layer in 
the accused devices? How close does the real-world measurement of n2 
have to be compared to n3 for the layer to be considered 
``uniaxial'' as construed by the ALJ? How close would n2 have to be 
to n3 for the layer to be equivalent to a ``uniaxial'' layer under 
the ALJ's construction? Please limit your response to the evidence 
in the record.
    Question 9: Would a person of ordinary skill in the art be 
motivated to modify Takizawa to use only one mask to form the 
plurality of etch stoppers recited in claim 3 of the '556 patent? 
Does Takizawa teach away from using a single mask to form the 
plurality of etch stoppers? Please cite to the evidence in the 
record. Please discuss any Federal Circuit case law regarding 
obviousness of a patent claim that requires a single structure or 
process, in light of prior art that discloses one or more such 
structures or processes.
    Question 10: What is the proper construction of the limitation 
``a second rate'' ``determined by'' of the asserted claims of the 
'941 patent? Please provide all relevant intrinsic and extrinsic 
evidence of record, including expert testimony.
    Question 11: Do the respondents' accused products infringe 
claims 1 and 4 of the '941 patent under Thomson's construction of 
``determined by.'' Please cite any record evidence, including expert 
testimony, to support your response.
    Question 12: Discuss any Federal Circuit case law relevant to 
whether or not claim 4 of the '941 patent requires an input video 
signal for a finding of infringement. Please discuss any basis, 
other than the language of the claims, (e.g., prosecution history) 
that provides guidance on whether or not claim 4 requires an input 
video signal.
    Question 13: For claims 1 and 4 of the '941 patent, what is the 
proper construction of the term ``za'' in the ratio ft/za ``required 
for a

[[Page 20050]]

cathode ray tube.'' For an interlaced signal associated with a CRT 
display, does za refer to the number of lines updated in a given 
field period? Please cite to the intrinsic evidence of the '941 
patent as support.
    Question 14: Is Mr. Vogeley's testimony regarding the prior art 
status of the ViewFrame II+2 with respect to the '941 patent 
sufficiently corroborated under a ``rule of reason'' analysis? 
Assuming that the ViewFrame II+2 is prior art to the asserted claims 
of the '941 patent, does the ViewFrame II+2 anticipate each of the 
asserted claims? Please cite to the evidence in the record.
    Question 15: With respect to respondents' arguments that 
Thomson's investments in licensing its LCD patent portfolio cannot 
be completely allocated to the asserted patents, what portion of the 
investments should be allocated to the asserted patents? Please 
provide the legal and factual basis for such allocations.
    Question 16: Based on the factors outlined below, please discuss 
the legal and factual bases for your position as to whether 
Thomson's investment in licensing for the asserted patents is 
substantial. Please consider at least the following factors: (1) The 
industry and size and scope of complainant's operations; (2) the 
existence of other types of ``exploitation'' of the asserted patents 
such as research, development, or engineering; (3) the existence of 
license-related ancillary activities such as ensuring compliance 
with the license agreement and providing training or technical 
support to its licensees; (4) whether complainant's licensing 
activities are continuing; (5) whether complainant's licensing 
activities are those referenced favorably in the legislative history 
of section 337(1)(3)(C); (6) complainant's return on investment; and 
(7) the extent to which complainant's LCD portfolio licenses are 
worldwide licenses.
    Question 17: What should the Commission compare complainants' 
investments to in analyzing whether the complainants' investments 
are substantial? Please cite any relevant legal basis and evidence 
of record to support your position.
    Question 18: Should Thomson's expenses related to the 
acquisition of the Xerox patent portfolio be [[ ]]? Is the purchase 
of a patent considered an exploitation of that patent under section 
337(a)(3)(C)? Can investments in [[ ]] for purposes of establishing 
domestic industry under section 337(a)(3)(C)? With respect to any 
argument that the Commission should [[ ]]? Further, how should the 
[[ ]]? Please provide legal and factual support for your position.
    Question 19: Should the Commission consider litigation expenses 
for the particular Section 337 investigation at issue? Should the 
Commission consider litigation expenses for parallel district court 
actions? Should it matter if the district court actions are stayed 
or ongoing?
    Question 20: Should the Commission consider reexamination 
expenses when determining if a domestic industry exists and if so 
should they be treated in the same manner as litigation expenses in 
determining whether or not the expenses are investments in 
licensing?

    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 a 
respondent 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 Certain Devices for Connecting Computers via Telephone 
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 9 
(December 1994).
    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 United States 
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 and 
prescribed by the Secretary of the Treasury. 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 is also requested to submit proposed 
remedial orders for the Commission's consideration. Complainant is also 
requested to state the date that the patent expires and the HTSUS 
subheadings under which the accused products are imported. The written 
submissions and proposed remedial orders must be filed no later than 
close of business on Monday, April 9, 2012. Reply submissions must be 
filed no later than the close of business on Monday, April 16, 2012. 
The written submissions must be no longer than 75 pages and the reply 
submissions must be no longer than 35 pages. No further submissions on 
these issues will be permitted unless otherwise ordered by the 
Commission.
    Persons filing written submissions must do so in accordance with 
Commission rule 210.4(f), 19 CFR 210.4(f), which requires electronic 
filing. The original document and 8 true copies thereof must also be 
filed 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 non-confidential written submissions will be 
available for public inspection at the Office of the Secretary and 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: March 26, 2012.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2012-7628 Filed 4-2-12; 8:45 am]
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