[Federal Register Volume 78, Number 175 (Tuesday, September 10, 2013)]
[Notices]
[Pages 55294-55296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21935]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-800]


Certain Wireless Devices With 3G Capabilities and Components 
Thereof Commission Determination To Review the Final Initial 
Determination Finding No Violation of Section 337 in Its Entirety

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 its entirety, the final initial 
determination issued by the presiding administrative law judge 
(``ALJ'') finding no violation of section 337 of the Tariff Act of 
1930, 19 U.S.C. 1337, (``section 337'') in the above identified 
investigation.

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

[[Page 55295]]

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 August 31, 2011, based on a complaint filed by InterDigital 
Communications, LLC of King of Prussia, Pennsylvania; InterDigital 
Technology Corporation of Wilmington, Delaware; and IPR Licensing, Inc. 
of Wilmington, Delaware (collectively, ``InterDigital''). 76 FR. 54252 
(Aug. 31, 2011). The complaint alleged 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 wireless devices with 3G 
capabilities and components thereof by reason of infringement of 
certain claims of United States Patent Nos. 7,349,540 (terminated from 
the investigation); 7,502,406; 7,536,013; 7,616,970; 7,706,332; 
7,706,830; and 7,970,127. The notice of investigation named the 
following entities as respondents: Huawei Technologies Co., Ltd. of 
Shenzhen, China; FutureWei Technologies, Inc. d/b/a Huawei, 
Technologies (USA) of Plano, Texas; Nokia Corporation of Espoo, 
Finland; Nokia Inc. of White Plains, New York; ZTE Corporation of 
Shenzhen, China; and ZTE (USA) Inc. of Richardson, Texas (collectively, 
``Respondents''). The complaint and notice of investigation were 
subsequently amended to allege infringement of certain claims of United 
States Patent No. 8,009,636 (the '636 patent) and to add the following 
entities as respondents: LG Electronics, Inc. of Seoul Korea; LG 
Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey; and LG 
Electronics Mobilecomm U.S.A., Inc. of San Diego, California 
(collectively, ``LG''). 76 FR 81527 (Dec. 28, 2011). The complaint and 
notice of investigation were further amended to include Huawei Device 
USA of Plano, Texas as a respondent. 77 FR 26788 (May 7, 2012).
    InterDigital Communications, LLC subsequently moved for leave to 
amend the Complaint and Notice of Investigation to reflect the fact 
that it converted from a Pennsylvania limited liability company to a 
Delaware corporation, and changed its name to InterDigital 
Communications, Inc. The ALJ issued an ID granting the motion and the 
Commission determined not to review. See Order No. 91 (Jan. 17, 2013); 
Notice of Commission Determination Not to Review an Initial 
Determination Granting Complainants' Motion for Leave to Amend the 
Complaint and Notice of Investigation (Feb. 4, 2013).
    On June 4, 2012, the ALJ granted a motion by LG under 19 CFR 
210.21(a)(2) to terminate the investigation as to LG based on an 
arbitration agreement. See Order No. 30 (June 4, 2012). The Commission 
determined not to review. See Notice of Commission Determination Not to 
Review an Initial Determination Terminating Certain Respondents From 
the Investigation (July 6, 2012). InterDigital appealed LG's 
termination from this investigation, and the Federal Circuit reversed 
the Commission's determination. InterDigital Commc'ns, LLC v Int'l 
Trade Comm'n, No. 2012-1628 (Fed. Cir. June 7, 2013).
    On June 28, 2013, the ALJ issued his final ID, finding no violation 
of section 337 by Respondents. Specifically, the ALJ found that the 
Commission has subject matter jurisdiction, in rem jurisdiction over 
the accused products, and in personam jurisdiction over the 
respondents. The ALJ also found that the importation requirement of 
section 337 (19 U.S.C. 1337(a)(1)(B)) has been satisfied. The ALJ, 
however, found that the accused products do not infringe asserted 
claims 1-3 and 5 of the '830 patent; asserted claims 1, 2, 4, and 6-8 
of the '636 patent; asserted claims 6, 13, 20, 26, and 29 of the '406 
patent; asserted claims 2-4, 7-11, 14, 22-24, and 27 of the '332 
patent; asserted claims 1-7 of the '127 patent; asserted claims 16-19 
of the '013 patent; or asserted claims 10-18 of the '970 patent. The 
ALJ found that the accused products meet each limitation of claims 1-9 
of the '970 patent but found that all the asserted claims, claims 1-18, 
of the '970 patent are invalid in view of the prior art. The ALJ also 
found that asserted claims 1-7 of the '127 patent and asserted claims 
16-19 of the '013 patent are invalid in view of the prior art. The ALJ, 
however, found that Respondents failed to establish by clear and 
convincing evidence that the asserted claims of the '830, '636, '406 or 
'332 patents were invalid in light of the cited prior art references. 
The ALJ also found that the Respondents failed to prove that they hold 
licenses under the asserted patents and failed to prevail on their 
equitable/FRAND defenses. The ALJ further found that InterDigital 
established the existence of a domestic industry.
    On July 15, 2013, InterDigital filed a petition for review of the 
ID. That same day, the Commission Investigative Attorney and 
Respondents filed separate petitions for review. Respondents also filed 
a contingent petition for review. On July 23, 2013, the parties filed 
responses to the petitions and contingent petition for review.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the final ID in its entirety.
    In connection with its review, the Commission is particularly 
interested in responses to the following question:

    Please discuss, in light of the statutory language, legislative 
history, the Commission's prior decisions, and relevant court 
decisions, including InterDigital Commc'ns, LLC v. Int'l Trade 
Comm'n, 690 F.3d 1318 (Fed. Cir. 2012), and 707 F.3d 1295 (Fed. Cir. 
2013), whether establishing a domestic industry based on licensing 
under 19 U.S.C. 1337 (a)(3)(C) requires proof of ``articles 
protected by the patent'' (i.e., a technical prong). If so, please 
identify and describe the evidence in the record that establishes 
articles protected by the asserted patents.

    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 one or more cease and desist orders that could result in the 
respondent(s) being required to cease and desist from engaging in 
unfair acts in the importation and sale of such articles. The 
Commission, however, is not interested in receiving written submissions 
that address the form of remedy and bonding, if any, or the public 
interest at this time.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issue identified in this notice. The 
written submissions must be filed no later than close of business on 
September 27, 2013. Initial submissions are limited to 15 pages. Reply 
submissions must be filed no later than the close of business on 
October 4, 2013. Reply submissions are limited to 10 pages. No further 
submissions on this issue will be permitted unless otherwise ordered by 
the Commission.

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    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-800'') 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).

    By order of the Commission.

    Issued: September 4, 2013.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-21935 Filed 9-9-13; 8:45 am]
BILLING CODE 7020-02-P