[Federal Register Volume 78, Number 111 (Monday, June 10, 2013)]
[Notices]
[Pages 34669-34671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13641]


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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 the Commission's Final Determination Finding a 
Violation of Section 337; Issuance of a Limited Exclusion Order and a 
Cease and Desist Order; Termination of the Investigation

AGENCY: U.S. International Trade Commission.

[[Page 34670]]


ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found a violation of section 337 in this investigation 
and has issued a limited exclusion order prohibiting respondent Apple 
Inc. of Cupertino, California (``Apple''), from importing wireless 
communication devices, portable music and data processing devices, and 
tablet computers that infringe claims 75-76 and 82-84 of U.S. Patent 
No. 7,706,348 (``the '348 patent''). The Commission has also issued a 
cease and desist order against Apple prohibiting the sale and 
distribution within the United States of articles that infringe claims 
75-76 and 82-84 of the '348 patent. The Commission has found no 
violation based on U.S. Patent Nos. 7,486,644 (``the '644 patent''), 
7,450,114 (``the '114 patent''), and 6,771,980 (``the '980 patent''). 
The Commission's determination is final, and the investigation is 
terminated.

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 
U.S. patents. The notice of investigation names Apple as the only 
respondent. The patents remaining in the investigation are the '348, 
'644, '114, and '980 patents. The complaint also alleged infringement 
of U.S. Patent No. 6,879,843, but the investigation with respect to 
that patent was previously terminated based on withdrawn allegations.
    On September 14, 2012, the presiding administrative law judge 
(``ALJ'') issued his final initial determination (``ID'') finding no 
violation of section 337 based on the four patents remaining at issue. 
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 was satisfied with respect to the 
remaining asserted patents, but that the technical prong was not 
satisfied for any of those patents.
    On October 1, 2012, complainant Samsung and the Commission 
investigative attorney (``IA'') filed petitions for review of the ID, 
while Apple filed a contingent petition for review.
    On November 19, 2012, the Commission determined to review the ID in 
its entirety. 77 FR 70464 (Nov. 26, 2012). The Commission issued a 
public notice requesting written submissions from the parties and the 
public on various topics, many of which concerned the Commission's 
authority to issue a remedy for the importation of articles that 
infringe patents that the patent owner has stated it will license on 
fair, reasonable, and non-discriminatory (``FRAND'') terms. Other 
topics concerned patent issues specific to this investigation. The 
Commission received written submissions from Samsung, Apple, and the IA 
addressing all of the Commission's questions. In response to the FRAND-
related topics posed to the public, the Commission received responses 
from the following: Association for Competitive Technology; Business 
Software Alliance; Ericsson Inc.; GTW Associates; Hewlett Packard 
Company; Innovation Alliance; Intel Corporation; Motorola Mobility LLC; 
Qualcomm Incorporated; Research In Motion Corporation; and Sprint 
Spectrum, L.P.
    On March 13, 2013, the Commission issued another public notice 
requesting written submissions from the parties and the public on 
various additional topics, including some FRAND-related topics. 78 FR 
16865 (March 19, 2013). The Commission received written submissions 
from Samsung, Apple, and the IA addressing all of the Commission's 
questions. In response to the FRAND-related topics posed to the public, 
the Commission received responses from the following: Association for 
Competitive Technology; Business Software Alliance; Cisco Systems, 
Inc.; Hewlett Packard Company; Innovation Alliance; Micron Technology, 
Inc.; and Retail Industry Leaders Association.
    Having examined the record of this investigation, including the 
ALJ's final ID and submissions from the parties and from the public, 
the Commission has determined that Samsung has proven a violation of 
section 337 based on articles that infringe claims 75-76 and 82-84 of 
the '348 patent. The Commission has determined to modify the ALJ's 
construction of certain terms in the asserted claims of the '348 
patent, including ``controller,'' ``10 bit TFCI information,'' and 
``puncturing.'' Under the modified constructions, the Commission has 
determined that Samsung has proven that the accused iPhone 4 (AT&T 
models); iPhone 3GS (AT&T models); iPhone 3 (AT&T models); iPad 3G 
(AT&T models); and iPad 2 3G (AT&T models) infringe the asserted claims 
of the '348 patent. The Commission has further determined that the 
properly construed claims have not been proven by Apple to be invalid 
and that Samsung has proven that a domestic industry exists in the 
United States with respect to the '348 patent. The Commission has 
determined that Apple failed to prove an affirmative defense based on 
Samsung's FRAND declarations.
    The Commission has determined that Samsung has not proven a 
violation based on alleged infringement of the '644, '980, and '114 
patents. With some modifications to the ALJ's analysis, the Commission 
has determined that the asserted claims of the '644 and '980 patents 
are valid but not infringed and that the asserted claims of the '114 
patent are not infringed and are invalid. The Commission has further 
determined that Samsung did not prove a domestic industry exists in the 
United States relating to articles protected by the '644, '980, and 
'114 patents.
    The Commission has determined that the appropriate remedy is a 
limited exclusion order and a cease and desist order prohibiting Apple 
from importing into the United States or selling or distributing within 
the United States wireless communication devices, portable music and 
data processing devices, and tablet computers that infringe claims 75-
76 and 82-84 of the '348 patent. The Commission has

[[Page 34671]]

determined that the public interest factors enumerated in section 
337(d)(1) and (f)(1) do not preclude issuance of the limited exclusion 
order and cease and desist order. The Commission has determined that 
Samsung's FRAND declarations do not preclude that remedy.
    Finally, the Commission has determined that a bond in the amount of 
zero percent of the entered value is required to permit temporary 
importation during the period of Presidential review (19 U.S.C. 
1337(j)) of wireless communication devices, portable music and data 
processing devices, and tablet computers that are subject to the order. 
The Commission's order and opinion were delivered to the President and 
to the United States Trade Representative on the day of their issuance.
    Commissioner Pinkert dissents on public interest grounds from the 
determination to issue an exclusion order and cease and desist order.
    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: June 4, 2013.
    By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-13641 Filed 6-7-13; 8:45 am]
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