[Federal Register Volume 79, Number 34 (Thursday, February 20, 2014)]
[Notices]
[Pages 9764-9766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03550]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-860]


Commission Determination To Review in Part a Final Initial 
Determination and Set a Schedule for Filing Written Submissions on the 
Issues Under Review and on Remedy, the 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 (``the Commission'') has determined to review in part the 
final initial determination (``ID'') issued by the presiding 
administrative law judge (``ALJ'') on December 13, 2013.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3115. 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: This investigation was instituted on October 
30, 2012, based upon a complaint filed by Avago Technologies Fiber IP 
(Singapore) Pte. Ltd. of Singapore; Avago Technologies General IP 
(Singapore) Pte. Ltd. of Singapore; and Avago Technologies U.S. Inc. of 
San Jose, California (collectively, ``Complainants''), alleging a 
violation of section 337 of the Tariff Act of 1930, as amended, (19 
U.S.C. 1337) in the importation, sale for importation, or sale within 
the United States after importation of certain optoelectronic devices 
for fiber optic communications, components thereof, and products 
containing the same by reason of infringement of certain claims of U.S. 
Patent Nos. 6,947,456 (``the `456 patent'') and 5,596,595 (``the `595 
patent''). 77 FR 65713 (October 30, 2012). The Commission named 
IPtronics A/S of Roskilde, Denmark; IPtronics Inc. of Menlo Park, 
California; FCI USA, LLC, of Etters, Pennsylvania; FCI Deutschland GmbH 
of Berlin, Germany; FCI SA of Guyancourt, France; Mellanox 
Technologies, Inc. of Sunnyvale, California; and Mellanox Technologies 
Ltd. of Yokneam, Israel (collectively, ``Respondents'') as respondents. 
The Commission also named the Office of Unfair Import Investigations as 
a party in this investigation.
    The final ID on violation was issued on December 13, 2013. The ALJ 
issued his recommended determination on remedy, the public interest and 
bonding on the same day. The ALJ found that a violation of section 337 
has occurred in the importation into the United States, the sale for 
importation, or the sale within the United States after importation of 
certain optoelectronic devices for fiber optic communications, 
components thereof, and products containing the same by reason of 
infringement of certain claims of the `595 patent. All the parties to 
this investigation filed timely petitions for review of various 
portions of the final ID, as well as timely responses to the petitions. 
The ALJ recommended that the Commission issue a limited exclusion order 
directed to Respondents' accused products that infringe the `595 
patent. The ALJ also recommended that the Commission issue a cease and 
desist order against the Mellanox and FCI respondents.
    On January 15, 2014, Complainants filed a post-RD statement on the 
public interest pursuant to Commission Rule 201.50(a)(4). On the same 
day, respondents Mellanox Technologies, Inc. and Mellanox Technologies, 
Ltd. also filed a submission pursuant to the rule. No responses from 
the public were received in response to the post-RD Commission Notice 
issued on December 16, 2013. See Notice of Request for Statements on 
the Public Interest (Dec. 16, 2013).
    Having examined the record in this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the ID in part. In particular, 
the Commission has determined as follows:
    (I) With respect to the `595 patent:
    (a) To review the ALJ's claim construction of the limitation 
``current-spreading layer'' and infringement and domestic industry 
(technical prong) determinations relating to that limitation;
    (b) to review the ALJ's determinations with respect to whether 
Complainants met the economic prong of the domestic industry 
requirement under subsections 337(a)(3)(A), 337(a)(3)(B), or 
337(a)(3)(C).
    (II) With respect to the `456 patent:
    (a) To review the ALJ's claim construction, infringement, and 
domestic industry (technical prong) determinations;
    (b) to review the ALJ's determinations with respect to whether 
Complainants met the economic prong of the domestic industry 
requirement under subsections 337(a)(3)(A), 337(a)(3)(B), or 
337(a)(3)(C).
    The parties are requested to brief their positions on only the 
following issues, with reference to the applicable law and the 
evidentiary record:
    (1) With respect to the ID's determination regarding the economic 
prong of the domestic industry requirement with respect to both 
asserted patents in this investigation, discuss whether Complainants 
are permitted to rely upon their research and development investments 
to satisfy the requirements under section 337(a)(3)(A) and (B) or 
whether such investments are only applicable to establishing a domestic 
industry under section 337(a)(3)(C). Explain all relevant statutory 
provisions, case law, and Commission precedent pertaining to this 
issue. See ID at 201.
    (2) With respect to the `595 patent, discuss Complainants' 
investments in research and development attributed to their products 
relied upon for satisfying the economic prong of the domestic industry 
requirements as compared to their complete QSFP product line.

[[Page 9765]]

Provide citations to the record and a response to the argument raised 
by Respondents as to ``inherently discordant'' in the evidence relied 
upon by Complainants and the ALJ (see Respondents' Petition at 74).
    (3) Please provide evidentiary support in the record regarding 
whether the U.S. investments alleged by Complainants are significant or 
substantial in the context of the Complainants' business, the relevant 
industry, and market realities.
    (4) With respect to the `456 patent:
    (a) Discuss whether there is an ``intent requirement'' in the 
context of claim construction of the claim limitation ``parameter for 
affecting.'' Also, please address any discussion of an ``intent 
requirement'' in the ID's infringement analysis with respect to that 
claim limitation. ID at 104-108.
    (b) The ALJ stated that:

    Moreover, the ALJ finds that Respondents also presented evidence 
that [[****]] Thus, the ALJ finds that this suggests the purpose of 
that value is [[****]]
    ID at 106-107.
    Complainants argue, inter alia, that there is no intrinsic or 
extrinsic evidence to support the ALJ's construction of this 
parameter such that it must affect only the negative peak portion, 
and no other portion of the waveform, that these are open-ended 
``comprising'' claims, and it is undisputed that the inclusion of 
additional features is insufficient to avoid infringement. See 
Complainants' Petition at 35 (citations omitted).

    (i) Please comment on the merits of Complainants' argument.
    (ii) Does the ALJ's analysis and finding, quoted above, preclude 
his determinations that neither the accused products nor the alleged 
domestic industry products meet the claim limitation ``parameter for 
affecting''?
    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 
Respondents being required to cease and desist from engaging in unfair 
acts in the importation and sale of such articles. 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 are likely to do so. For 
background, see Certain Devices for Connecting Computers via Telephone 
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (Dec. 1994) (Commission 
Opinion).
    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 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. The Commission also specifically 
requests briefing from the parties concerning the following:
    Please provide evidentiary support in the record regarding whether 
and to what extent Respondents' customers that ``operate in extremely 
important and sensitive areas'' would be adversely impacted by the 
requested remedial orders. Please explain your position as to the 
appropriate scope of the remedies that should issue in the event a 
violation is found in view of the public interest considerations of the 
public health and welfare, competitive conditions in the United States 
economy, the production of like or directly competitive articles in the 
United States, and United States consumers with specific reference to 
the evidentiary record.
    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.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review. The submissions 
should be concise and thoroughly referenced to the record in this 
investigation. Parties to the investigation, interested government 
agencies, 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 
on remedy, the public interest and bonding issued on December 13, 2013, 
by the ALJ. Complainants and the IA are also requested to submit 
proposed remedial orders for the Commission's consideration. 
Complainants are further requested to provide the expiration date of 
the `595 and `456 patents and state the HTSUS numbers under which the 
accused articles are imported. The written submissions and proposed 
remedial orders must be filed no later than the close of business on 
February 28, 2014. Reply submissions must be filed no later than the 
close of business on March 7, 2014. No further submissions on these 
issues will be permitted unless otherwise ordered by the Commission. 
Party submissions should not exceed 50 pages for the main submissions 
and 25 pages for the reply submissions.
    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-860'') 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 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).

    By order of the Commission.


[[Page 9766]]


    Issued: February 12, 2014.
Lisa R. Barton,
Acting Secretary to the Commission.

[FR Doc. 2014-03550 Filed 2-19-14; 8:45 am]
BILLING CODE 7020-02-P