[Federal Register Volume 78, Number 37 (Monday, February 25, 2013)]
[Notices]
[Pages 12785-12786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04183]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-745]


Certain Wireless Communication Devices, Portable Music and Data 
Processing Devices, Computers and Components Thereof; Commission 
Decision To Review in Part a Remand Initial Determination Finding No 
Violation of Section 337; Request for 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 in part the presiding 
administrative law judge's (``ALJ'') remand initial determination 
(``Remand ID'') issued on December 18, 2012, finding no violation of 
section 337 of the Tariff Act of 1930, 19 U.S.C. 1337 in the above-
captioned investigation.

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 8, 2010, based on a complaint filed by Motorola Mobility, 
Inc. of Libertyville, Illinois. 75 FR 68619-20 (Nov. 8, 2010). The 
complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337 (``section 337''), in the importation into 
the United States, the sale for importation, and the sale within the 
United States after importation of certain wireless communication 
devices, portable music and data processing devices, computers and 
components thereof by reason of infringement of certain claims of U.S. 
Patent Nos. 6,272,333 (``the '333 patent''); 6,246,862 (``the '862 
patent''); 6,246,697 (``the '697 patent''); 5,359,317 (``the '317 
patent''); 5,636,223 (``the '223 patent''); and 7,751,826 (``the '826 
patent''). The complaint further alleges the existence of a domestic 
industry. The Commission's notice of investigation named Apple Inc. of 
Cupertino, California as respondent. The Office of Unfair Import 
Investigation (``OUII'') was named as a participating party, however, 
on July 29, 2011, OUII withdrew from further participation in the 
investigation. See Commission Investigative Staff's Notice of 
Nonparticipation (July 29, 2011). The Commission later partially 
terminated the investigation as to the '317 patent and the '826 patent. 
Notice (June 28, 2011); Notice (Jan 27, 2012).
    On April 24, 2012, the ALJ issued his final ID, finding a violation 
of section 337 as to the '697 patent and finding no violation as to the 
'223, '333, and '697 patents. On May 9, 2012, the ALJ issued his 
recommended determination on remedy and bonding. On June 25, 2012, the 
Commission determined to review the final ID in part. 77 FR 38826-29 
(June 29, 2012). On August 24, 2012, the Commission found no violation 
with respect to the '333 patent, the '697 patent, and the '223 patent. 
77 FR 52759-761 (Aug. 30, 2012). The Commission remanded the 
investigation to the ALJ with respect to the '862 patent upon reversing 
his finding that the asserted claim of the patent is invalid as 
indefinite. Id.; see Order (Aug. 24, 2012). Specifically, the 
Commission instructed the ALJ to make findings regarding infringement, 
validity, and domestic industry concerning the asserted claim of the 
'862 patent. The Commission's Order instructed the ALJ to set a new 
target as necessary to accommodate the remand proceedings. On October 
1, 2012, the ALJ issued Order No. 36, setting the target date for 
completion of the remand proceedings as April 22, 2013. Order No. 36 
(Oct. 1, 2012). On October 18, 2012, the Commission determined not to 
review the ID setting the new target date. Notice (Oct. 18, 2012).
    On December 18, 2012, the ALJ issued his Remand ID, finding no 
violation of section 337 with respect to the '862 patent. In 
particular, the ALJ found that the relevant accused products infringe 
claim 1 of the '862 patent literally and under the doctrine of 
equivalents. The ALJ also found, however, that claim 1 is invalid as 
anticipated by U.S. Patent No. 6,052,464 to Harris (``Harris '464''). 
The ALJ further found that claim 1 is not invalid for obviousness in 
light of Harris

[[Page 12786]]

'464 in combination with the knowledge of one of ordinary skill in the 
art or in combination with U.S. Patent No. 5,894,298 to Hoeksma 
(``Hoeksma '298''). The ALJ also found that Motorola has satisfied the 
economic and technical prongs of the domestic industry requirement with 
respect to the '862 patent.
    On January 7, 2013, Motorola filed a petition for review of certain 
aspects of the Remand ID's findings concerning claim construction and 
validity. Also on January 7, 2013, Apple filed a petition for review of 
certain aspects of the final ID's findings concerning infringement. On 
January 15, 2013, Motorola filed a response to Apple's petition. Also 
on January 15, 2013, Apple filed a response to Motorola's petition.
    Having examined the record of this investigation, including the 
ALJ's Remand ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the Remand ID in part. 
Specifically, the Commission has determined to review the Remand ID's 
construction of the claim limitation ``touch sensitive input device'' 
in claim 1 of the '862 patent. The Commission has further determined to 
review the Remand ID's finding that the accused products literally 
infringe claim 1 of the '862 patent. The Commission has also determined 
to review the Remand ID's finding that Harris '464 anticipates claim 1 
of the '862 patent. The Commission has further determined to review the 
Remand ID's finding of non-obviousness pursuant to section 210.44 of 
the Commission's Rules of Practice and Procedure (19 CFR 210.44).
    The Commission has determined not to review the remaining issues 
decided in the Remand ID.
    In connection with its review, the parties are requested to brief 
their positions on the issue of whether claim 1 of the '862 patent is 
obvious in view of Harris '464 in combination with the knowledge of one 
of ordinary skill in the art or in combination with Hoeksma '298. The 
Commission is particularly interested in responses to the following 
question:

    Does the evidence in the record support a finding that claim 1 
of the '862 patent is obvious in view of Harris '464 in combination 
with the knowledge of one of ordinary skill in the art or in 
combination with Hoeksma '298 where the evidence demonstrates that 
the existence of portable communication devices using ``touch 
sensitive input devices,'' including touch screens, were known in 
the art prior to the filing of the application leading to the '862 
patent and is disclosed in Hoeksma '298? In discussing this issue, 
please refer to the teachings of the references, the knowledge of 
one of ordinary skill in the art at the time of filing of the '862 
patent application, and the evidence in the record regarding the 
motivation to combine Harris '464 with the knowledge of one of 
ordinary skill in the art or with Hoeksma '298. Also, please address 
whether there are any secondary considerations that would prevent a 
finding of obviousness.

    The parties have been invited to brief only the discrete issues 
described 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.
    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 a cease and desist order that could result in the respondent 
being required to cease and desist from engaging in unfair acts in the 
importation and sale of such articles. 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 a cease and desist 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.
    If 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 will consider the issues related to remedy, the 
public interest, and bonding based upon filings previously submitted by 
the parties to the investigation, interested government agencies, the 
Office of Unfair Import Investigations, and other interested parties. 
See Public Interest submissions filed on July 9, 2012. We also note 
that the Complainant has previously provided the dates that the patent-
at-issue expires and the HTSUS numbers under which the accused products 
are imported. See Complainant Motorola Mobility LLC's Opening Brief on 
Commission Review (Public Ver.) at 70 (July 19, 2012). Complainant has 
also previously submitted proposed remedial orders for the Commission's 
consideration. See id. at Exhs. 7 & 8.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues identified in this notice. 
The written submissions must be filed no later than close of business 
on March 8, 2013. Reply submissions must be filed no later than the 
close of business on March 15, 2013. 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-745'') 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 sections 210.42-46 and 210.50 of the Commission's Rules of Practice 
and Procedure (19 CFR 210.42-46 and 210.50).

    Issued: February 19, 2013.

    By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-04183 Filed 2-22-13; 8:45 am]
BILLING CODE 7020-02-P