[Federal Register Volume 78, Number 105 (Friday, May 31, 2013)]
[Notices]
[Pages 32690-32691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12893]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-752]


Certain Gaming and Entertainment Consoles, Related Software, and 
Components Thereof; Notice of Commission Determination Not To Review a 
Final Initial Remand Determination Finding No Violation of Section 337; 
Affirmance of Original Initial Determination as to Remaining Patent as 
Modified by the Remand Initial Determination; Termination of the 
Investigation

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 not to review the final initial remand 
determination (``RID'') issued by the presiding administrative law 
judge (``ALJ'') on March 22, 2013. The Commission affirms the ALJ's 
final initial determination (``ID'') issued on April 23, 2012, as to 
the remaining patent as modified by the RID.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3042. 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 December 23, 2010, based on a complaint filed by Motorola Mobility, 
Inc. of Libertyville, Illinois and General Instrument Corporation of 
Horsham, Pennsylvania (collectively ``Motorola''). 75 FR 80843 (Dec. 
23, 2010). The complaint alleged violations of section 337 of the 
Tariff Act of 1930 (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 gaming and entertainment consoles, related 
software, and components thereof by reason of infringement of various 
claims of United States Patent Nos. 6,069,896 (``the '896 patent''); 
7,162,094 (``the '094 patent''); 6,980,596 (``the '596 patent''); 
5,357,571 (``the '571 patent''); and 5,319,712 (``the '712 patent''). 
The notice of investigation named Microsoft Corporation of Redmond, 
Washington (``Microsoft'') as the sole respondent. The notice of 
investigation also named the Office of Unfair Import Investigations 
(``OUII'') as a party in the investigation. See 75 FR 80843 (Dec. 23, 
2010). OUII, however, withdrew from participation in accordance with 
the Commission's Strategic Human Capital Plan. See 75 FR 80843 (2010); 
Letter from OUII to the Administrative Law Judge (Mar. 3, 2011).
    On April 23, 2012, the ALJ issued his final ID, finding a violation 
of section 337 by Microsoft. Specifically, the ALJ found that the 
Commission has subject matter jurisdiction, in rem jurisdiction over 
the accused products and in personam jurisdiction over the respondent. 
The ALJ also found that the importation requirement of section 337 (19 
U.S.C. 1337(a)(1)(B)) has been satisfied. Regarding infringement, the 
ALJ found that Microsoft's accused products directly infringe claims 1 
and 12 of the '896 patent; claims 7, 8, and 10 of the '094 patent; 
claim 2 of the '596 patent; and claims 12 and 13 of the '571 patent. 
Id. at 330. The ALJ, however, found that the accused products do not 
infringe asserted claims 6, 8, and 17, of the '712 patent. With respect 
to invalidity, the ALJ found that the asserted claims of the '896, 
'094, '571, '712 patents and claim 2 of the '596 patent were not 
invalid. However, he found asserted claim 1 of the '596 patent invalid 
for anticipation. He also found that Microsoft failed to prevail on any 
of its equitable defenses and that Microsoft failed to establish that 
Motorola's alleged obligation to provide a license on reasonable and 
nondiscriminatory terms (``RAND'') precluded a finding of violation of

[[Page 32691]]

section 337. The ALJ concluded that an industry exists within the 
United States that practices the '896, '094, '571, '596 and '712 
patents as required by 19 U.S.C. 1337(a)(2).
    On May 7, 2012, Microsoft filed a petition for review of the ID. 
That same day, Motorola filed a petition and contingent petition for 
review. On May 15, 2012, the parties filed responses to the various 
petitions and contingent petition for review.
    On June 22, 2012, Microsoft filed a motion for partial termination 
of the investigation. Specifically, Microsoft moved for termination of 
the '094 and '596 patents from the investigation based on facts alleged 
in the motion.
    On June 29, 2012, the Commission determined to review the final ID 
in its entirety and remanded the investigation to the ALJ to apply the 
Commission's opinion in Certain Electronic Devices with Image 
Processing Systems, Components Thereof, and Associated Software, Inv. 
No. 337-TA-724, Comm'n Op. (Dec. 21, 2011) and rule on Microsoft's 
motion for partial termination of the investigation filed June 22, 
2012. 77 FR 40082 (July 6, 2012).
    On November 6, 2012, the ALJ issued an ID (Order No. 48) granting 
Motorola's motion to terminate the investigation as to the '712 and 
'571 patents. On January 11, 2013, the ALJ issued an ID (Order No. 52) 
granting Motorola's motion to terminate the investigation as to the 
'596 and '094 patents. The Commission determined not to review those 
orders. Thus, only the '896 patent remains in this investigation.
    On March 22, 2013, the ALJ issued his RID, finding no violation of 
section 337 with respect to the asserted claims of the '896 patent.
    On April 8, 2013, Motorola filed a petition for review of the RID, 
challenging the ALJ's finding that Microsoft is not liable for 
indirectly infringing the asserted claims of the '896 patent. That same 
day, Microsoft filed a contingent petition for review. In its 
contingent petition for review, Microsoft incorporates its petition for 
review of the original ID with respect to the '896 patent. On April 16, 
2013, the parties filed responses to the petitions for review.
    Having examined the record of this investigation, including the 
ALJ's final ID and RID, the petitions for review, and the responses 
thereto, the Commission has determined not to review the RID. The 
Commission affirms the ID issued on April 23, 2012, with respect to the 
'896 patent as modified by the RID. In that connection, the Commission 
adopts the ALJ's findings in the original ID that (1) Motorola waived 
its indirect infringement argument and (2) Motorola failed to establish 
indirect infringement on the merits. ID at 67-68. The Commission also 
adopts the ALJ's amplified findings in the RID that Motorola failed to 
establish indirect infringement on the merits during the remand 
proceeding. Thus there is no violation of section 337 with respect to 
the '896 patent. The investigation is terminated.
    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: May 23, 2013.

    By order of the Commission.
William R. Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2013-12893 Filed 5-30-13; 8:45 am]
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