[Federal Register Volume 77, Number 227 (Monday, November 26, 2012)]
[Notices]
[Pages 70464-70466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28509]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-794]


Certain Electronic Devices, Including Wireless Communication 
Devices, Portable Music and Data Processing Devices, and Tablet 
Computers; Notice of Commission Determination To Review the Final 
Initial Determination; Schedule for Filing Written Submissions on the 
Issues Under Review and on Remedy, Public Interest, and Bonding

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 the final initial determination 
issued by the presiding administrative law judge in the above-captioned 
investigation on September 14, 2012. The Commission requests certain 
briefing from the parties on the issues under review, as indicated in 
this notice. The Commission also requests briefing from the parties and 
the public on the issues of remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Clark S. Cheney, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-205-2661. 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 August 1, 2011, based on a complaint filed by Samsung Electronics 
Co., Ltd. of Korea and Samsung Telecommunications America, LLC of 
Richardson, Texas (collectively, ``Samsung''). 76 FR 45860 (Aug. 1, 
2011). The complaint alleges violations of section 337 of the Tariff 
Act of 1930, as amended (19 U.S.C. 1337), in the importation into the 
United States, the sale for importation, and the sale within the United 
States after importation of certain electronic devices, including 
wireless communication devices, portable music and data processing 
devices, and tablet computers, by reason of infringement of various 
patents, including U.S. Patent Nos. 7,706,348 (``the '348 patent''), 
7,486,644 (``the '644 patent''), 7,450,114 (``the '114 patent''), and 
6,771,980 (``the '980 patent''). The notice of investigation names 
Apple Inc. of Cupertino, California, as the only respondent.
    On September 14, 2012, the presiding administrative law judge 
(``ALJ'') issued his final initial determination (``ID'') in this 
investigation finding no violation of section 337. The ALJ determined 
that the '348, '644, and '980 patents are valid but not infringed and 
that the '114 patent is both invalid and not infringed. The ALJ further 
determined that the economic prong of the domestic industry requirement 
is satisfied for all four patents at issue, but that the technical 
prong is not satisfied for any of the asserted patents.
    On October 1, 2012, complainant Samsung and the Commission 
investigative attorney filed petitions for review of the ID, while 
Apple filed a contingent petition for review.
    Having examined the record of this investigation, including the ID, 
the petitions for review, and the responses thereto, the Commission has 
determined to review the ALJ's determination of no violation in its 
entirety.
    In connection with the final disposition of this investigation, the 
Commission may issue an order that results in the exclusion of the 
subject articles from entry into the United

[[Page 70465]]

States. See 19 U.S.C. 1337(d). 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, lnv. 
No. 337TA360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December 1994).
    When 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.
    When 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 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.
    Parties to the investigation, interested government agencies, the 
Office of Unfair Import Investigations (``OUII''), 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.
    The Commission further encourages briefing from the parties to the 
investigation, interested government agencies, OUII, and any other 
interested parties on the following topics:
    1. Does the mere existence of a FRAND undertaking with respect to a 
particular patent preclude issuance of an exclusion order based on 
infringement of that patent? Please discuss theories in law, equity, 
and the public interest, and identify which (if any) of the 337(d)(1) 
public interest factors preclude issuance of such an order.
    2. Where a patent owner has offered to license a patent to an 
accused infringer, what framework should be used for determining 
whether the offer complies with a FRAND undertaking? How would a 
rejection of the offer by an accused infringer influence the analysis, 
if at all?
    3. Would there be substantial cost or delay to design around the 
technology covered by the '348 and '644 patents asserted in this 
investigation? Could such a design-around still comply with the 
relevant ETSI standard?
    4. What portion of the accused devices is allegedly covered by the 
asserted claims of each of the '348 and '644 patents? Do the patents 
cover relatively minor features of the accused devices?
    In addition to the foregoing, the parties to the investigation are 
requested to brief their positions on the following subset of the 
issues under review, with reference to the applicable law and the 
evidentiary record:
    5. What evidence in the record explains the legal significance of 
Samsung's FRAND undertakings under French law?
    6. [ ]
    7. [ ]
    8. With respect to the asserted claims of the '348 patent, what 
record evidence shows that a person of ordinary skill in the art would 
understand the phrase ``10 bit TFCI information'' to allow or preclude 
the use of padding bits? What is the difference between the ``10 bit 
TFCI information'' in the portion of Table 1a shown in columns 13 and 
14 of '348 patent and the TFCI information with padding zeroes 
allegedly used in the alleged domestic industry devices? Is the 
patent's discussion of padding zeroes at col. 3, lines 27-34 of any 
relevance? What consequence would construing ``10 bit TFCI 
information'' to allow padding bits have on the issues of infringement, 
validity, and the technical prong of the domestic industry requirement?
    9. With respect to the asserted claims of the '348 patent, what 
claim language, if any, limits the claim to the use of a look-up table 
and precludes the claim from covering the embodiment of the invention 
shown in Figures 8 and 14 of the '348 patent?
    10. With respect to asserted claims 82-84 of the '348 patent, 
identify any support in the patent specification or the record 
generally for construing the term ``puncturing'' in asserted claims 82-
84 to encompass ``excluding'' bits (see, e.g., '348 patent at 32:10-
17). What consequence would such a construction have on the issues of 
infringement, validity, and the technical prong of the domestic 
industry requirement?
    11. With respect to the asserted claims of the '644 patent, what is 
the proper construction of ``extracting''? What variable, if any, in 
the source code relied upon by Samsung to prove infringement and 
domestic industry represents a ``60-bit rate-matched block'' that has 
been extracted from a received signal?
    12. With respect to the '980 patent, has Samsung waived all 
infringement and domestic industry allegations except for those based 
on claim 10? Identify by source code file name or other specific record 
designation the precise ``dialing program'' that Samsung relies upon to 
prove infringement and domestic industry with respect to claim 10. Also 
identify, using record evidence, the conditions that trigger execution 
of the ``dialing program'' in the relevant devices.
    13. With respect to the '980 patent, if the Commission were to 
construe ``dialing icon'' to require a ``pictorial element,'' what 
record evidence demonstrates that Samsung's alleged domestic industry 
products meet that limitation?
    The parties have been invited to brief only the discrete issues 
enumerated above, with reference to the applicable law and evidentiary 
record. The parties are not to brief other issues on review, which are 
adequately presented in the parties' existing filings.
    Written Submissions: Written submissions and proposed remedial 
orders in response to this notice must be filed no later than close of 
business on December 3, 2012. Complainant and OUII are also requested 
to submit proposed remedial orders for the Commission's consideration. 
Complainant is also requested to state the dates that the patents 
expire and the HTSUS numbers under which the accused products are 
imported. Initial submissions by the parties are limited to 80 pages, 
not including any attachments or exhibits related to discussion of the 
public interest. Initial submissions by other members of the public are 
limited to 50 pages, not including any attachments or exhibits related 
to discussion of the public interest. Reply submissions must be filed 
no later than the close of business December 10,

[[Page 70466]]

2012. All reply submissions are limited to 50 pages, not including any 
attachments or exhibits related to discussion of the public interest. 
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 section 210.4(f) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-794'') 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). Persons with questions 
regarding filing should contact the Secretary (202-205-2000).
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. A 
redacted non-confidential version of the document must also be filed 
simultaneously with the any confidential filing. 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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

     Issued: November 19, 2012.

    By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-28509 Filed 11-23-12; 8:45 am]
BILLING CODE 7020-02-P