[Federal Register Volume 77, Number 158 (Wednesday, August 15, 2012)]
[Notices]
[Pages 49022-49023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19990]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-698 (Enforcement Proceeding)]


Certain DC-DC Controllers and Products Containing Same; Notice of 
Commission Decision To Review in Part an Enforcement Initial 
Determination Finding a Violation of the August 13, 2010 Consent Order; 
Request for Written Submissions Regarding Certain Issues Under Review 
and Remedy, Bonding, and the Public Interest

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 an enforcement initial 
determination (``EID'') of the presiding administrative law judge 
(``ALJ'') finding a violation of the August 13, 2010 consent order by 
respondent uPI Semiconductor Corp. (``uPI'') of Hsinchu, Taiwan, and is 
requesting written submissions regarding certain issues under review 
and remedy, bonding, and the public interest.

FOR FURTHER INFORMATION CONTACT: Clint A. Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2310. Copies of all 
nonconfidential 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 the matter can 
be obtained by contacting the Commission's TDD terminal on 202-205-
1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this enforcement 
proceeding on September 6, 2011, based on an enforcement complaint 
filed by Richtek Technology Corp. of Hsinchu, Taiwan and Richtek USA, 
Inc. of San Jose, California (collectively ``Richtek''). 76 FR 55109-
10. The complaint alleged violations of the August 13, 2010 consent 
orders issued in the underlying investigation by the continued practice 
of prohibited activities such as directly importing, offering for sale, 
and selling for importation into the United States and by knowingly 
aiding, abetting, encouraging, participating in, or inducing 
importation and sale in the United States by third parties of DC-DC 
controllers or products containing the same that infringe one or more 
of U.S. Patent Nos. 7,315,190 (``the `190 patent''); 6,414,470 (``the 
`470 patent''); and 7,132,717 (``the `717 patent''); or that contain or 
use Richtek's asserted trade secrets. The Commission's notice of 
institution of enforcement proceedings named uPI and Sapphire 
Technology Limited (``Sapphire'') of Shatin, Hong Kong as respondents.
    On April 11, 2012, the Commission issued notice of its 
determination not to review the ALJ's ID terminating the enforcement 
proceeding as to Sapphire based on a settlement agreement.
    On June 8, 2012, the ALJ issued his EID finding a violation of the 
August 13, 2010 consent order by uPI. He found that, after issuance of 
the consent order, certain uPI DC-DC controllers and downstream 
products containing uPI accused controllers had been imported and/or 
sold in the United States without Richtek's consent or agreement. He 
made infringement findings as to certain claims of the `190, the `470, 
and the `717 patents. He found no misappropriation of Richtek's 
asserted trade secrets in violation of the consent order with respect 
to uPI's products developed after the consent order issued. Also, he 
recommended enforcement measures for uPI's violation that included: (1) 
Modifying the consent order to clarify that the order applies (and has 
always applied) to all uPI affiliates; and (2) imposing a civil penalty 
of $750,000 against uPI. On June 25, 2012, uPI and Richtek each filed a 
petition for review of the EID; and on July 3, 2012, Richtek, uPI, and 
the Commission investigative attorney each filed a response to the 
opposing party's petition.
    Upon review of the record and considering the parties' filings, the 
Commission has determined to review the EID in part. Specifically, the 
Commission has determined to review the following: the ALJ's finding of 
infringement of the `470 patent; the ALJ's finding of infringement of 
the `190 patent; and the ALJ's determination that uPI violated the 
August 13, 2010 consent order on 75 days.
    On review, with respect to violation of the August 13, 2010 consent 
order, the parties are requested to submit briefing limited to the 
following issues:
    (1) What is the test for determining whether uPI violated the 
following consent order prohibition: ``Knowingly aid, abet, encourage, 
participate in, or induce importation into the United States, the sale 
for importation into the United States, or the sale, offer for sale, or 
use in the United States after importation,'' without the consent or 
agreement of Richtek, any DC-DC controllers or products containing same 
which infringe the asserted patent claims or are made using Richtek's 
trade secrets? August 13, 2010 consent order, ] A.
    (2) Explain whether or not there is a factual basis in the 
evidentiary record that proves that a violation of the ``knowingly aid, 
abet, encourage, participate in, or induce'' prohibition of paragraph A 
of the August 13, 2010 consent order has occurred in view of the 
evidence of uPI's efforts to comply with the consent order.
    (3) Explain whether or not there is a factual basis in the 
evidentiary record that proves uPI has violated the following consent 
order prohibition: ``import into the United States, sell for 
importation into the United States, or sell or offer for sale in the 
United States after importation'' without the consent or agreement of 
Richtek of any DC-DC controllers or products containing same which 
infringe the asserted patent claims or contain Richtek's asserted trade 
secrets. August 13, 2010 consent order, ] A.
    (4) Please provide, based upon evidence in the record, the specific 
date(s) upon which an importation or sale in the United States occurred 
for

[[Page 49023]]

each line item of the table on page 121 of the EID.
    In addressing these issues, the parties are requested to make 
specific reference to the evidentiary record and to cite relevant legal 
authority. The Commission does not request additional briefing at this 
time on any other issues under review.
    In connection with the final disposition of this investigation, the 
Commission may revoke the consent order and issue an order excluding 
the subject articles from entry into the United States. See 19 CFR 
210.75(b)(4)(iii). 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 7-10 (December 1994).
    If the Commission contemplates revoking the consent order and 
issuing an exclusion order, 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 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 were to revoke the consent order and issue an 
exclusion order, the U.S. Trade Representative, as delegated by the 
President, has 60 days to approve or disapprove the Commission's 
action. See 19 U.S.C. 1337(j) and the 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 under review that 
specifically address the Commission's questions set forth in this 
notice. The submissions should be concise and thoroughly referenced to 
the record in this investigation. The parties to the enforcement 
proceeding, interested government agencies, and any other interested 
persons are encouraged to file written submissions on the issues of 
remedy, the public interest, and bonding, and such submissions should 
address the enforcement measures recommended by the ALJ relating to 
remedy. The complainant and the IA are also requested to submit 
proposed remedial orders for the Commission's consideration in the 
event it determines to revoke the consent order. Complainant is also 
requested to state the dates that the patents at issue expire and the 
HTSUS numbers under which the accused articles are imported. The 
written submissions and proposed remedial orders must be filed no later 
than close of business on August 23, 2012. Reply submissions must be 
filed no later than the close of business on August 30, 2012. No 
further submissions on these issues will be permitted unless otherwise 
ordered by the Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines stated above and submit 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to Commission rule 210.4(f), 19 CFR 210.4(f). Submissions 
should refer to the investigation number (``Inv. No. 337-TA-698'') in a 
prominent place on the cover page and/or the first page. (See Handbook 
for Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf).
    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 nonconfidential 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 of the Commission's Rules of Practice and 
Procedure, 19 CFR 210.42-46.

    By order of the Commission.

    Issued: August 9, 2012.
William R. Bishop,
Hearings and Meetings Coordinator.
[FR Doc. 2012-19990 Filed 8-14-12; 8:45 am]
BILLING CODE 7020-02-P