[Federal Register Volume 79, Number 214 (Wednesday, November 5, 2014)]
[Notices]
[Pages 65698-65701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26246]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-884]


Certain Consumer Electronics with Display and Processing 
Capabilities; Commission Decision to Review In Part a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions; Extension of Target Date

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'') final initial determination 
(``final ID'') issued on August 29, 2014, finding a violation of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337''), and to extend the target date 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 June 25, 2013, based on a complaint filed by Graphics Properties 
Holdings, Inc. of New Rochelle, New York (``GPH''). 78 FR 38072-73 
(June 25, 2013). 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 consumer electronics with 
display and processing capabilities by reason of infringement of 
certain claims of United States Patent Nos. 6,650,327 (``the '327 
patent''); 8,144,158 (``the '158 patent''); and 5,717,881 (``the '881 
patent''). The notice of investigation named as respondents Panasonic 
Corporation of Osaka, Japan and Panasonic Corporation of North America 
of Secaucus, New Jersey (collectively ``Panasonic''); Toshiba 
Corporation of Tokyo, Japan and Toshiba America Information Systems, 
Inc. of Irvine, California (collectively ``Toshiba''); Toshiba America, 
Inc. of New York, New York (``Toshiba America''); Vizio, Inc. of 
Irvine, California (``Vizio''); AmTran Logistics, Inc. of Irvine, 
California and AmTran Technology Co., Ltd. of New Taipei City, Taiwan 
(collectively ``AmTran''); and ZTE Corporation of Shenzhen, China, ZTE 
(USA) Inc. of Richardson, Texas, and ZTE Solutions of Richardson, Texas 
(collectively, ``ZTE''). The Office of Unfair Import Investigations 
(``OUII'') is a party to the investigation. The Commission later 
terminated the investigation with respect to Panasonic, Vizio, AmTran, 
and ZTE.
    On March 31, 2014, the Commission determined not to review an ID 
granting respondents' motion for summary determination that claim 1 of 
the '881 patent is invalid for indefiniteness, thus terminating the 
'881 patent from the investigation. Notice (Mar. 31, 2014); Order Nos. 
53 (Feb. 27, 2014), 60 (Mar. 11, 2014, correcting Order No. 53).
    On August 29, 2014, the ALJ issued his final ID, finding a 
violation of section 337 with respect to Toshiba. Specifically, the ALJ 
found that all of the accused products literally infringe claims 2, 3, 
7, 25, and 26 of the '327 patent and claims 1, 4, 7, and 10 of the '158 
patent (``the asserted claims''). The ALJ also found that none of the 
asserted claims of the '327 patent are invalid as anticipated under 35 
U.S.C. 102 or as obvious under 35 U.S.C. 103. The ALJ further found 
that none of the asserted claims of the '158 patent are invalid as 
anticipated under 35 U.S.C. 102, as obvious under 35 U.S.C. 103, or for 
lack of written description under 35 U.S.C. 112. The ALJ also found 
that the respondents did not establish that any of the asserted patents 
are unenforceable due to estoppel based on GPH's obligation to license 
the asserted patents under reasonable and nondiscriminatory (``RAND'') 
terms or that license exhaustion applies with respect to any of the 
asserted patents. The ALJ further found that a domestic industry exists 
with respect to the '327 and '158 patents.
    The ALJ found, however, that no violation of section 337 exists as 
to respondent Toshiba America with respect to the asserted claims of 
the '327 and '158 patents because GPH failed to satisfy the importation 
or sale requirement of section 337 establishing subject matter 
jurisdiction as to Toshiba America. No party petitioned for review of 
this finding.

[[Page 65699]]

    The final ID also includes the ALJ's recommended determination 
(``RD'') on remedy and bonding. The ALJ recommends that the Commission 
issue a limited exclusion order barring entry of Toshiba's consumer 
electronics with display and processing capabilities that infringe the 
asserted claims of the '327 and '158 patents in the event it finds a 
violation of section 337. The ALJ also recommends issuance of a cease 
and desist order against Toshiba, and recommends the imposition of a 
zero percent bond during the period of Presidential review because GPH 
failed to support its bond proposals.
    On September 15, 2014, Toshiba filed a petition for review of the 
final ID's finding of violation. In particular, Toshiba requested 
review of the final ID's findings concerning claim construction, 
invalidity, infringement, the economic prong of the domestic industry, 
Toshiba's license defense, and Toshiba's RAND defense. Also on 
September 15, 2014, GPH filed a contingent petition for review 
concerning the ALJ's lack of findings with respect to whether GPH 
additionally satisfied the economic prong of the domestic industry 
requirement based on the domestic activities of its licensees pursuant 
to 19 U.S.C. 1337(a)(3)(A) and (B).
    On September 23, 2014, GPH filed a response to Toshiba's petition 
for review, and Toshiba filed a response to GPH's contingent petition 
for review. Also on September 23, 2014, the Commission investigative 
attorney filed a joint response to the private parties' petitions.
    On September 30, 2014, Toshiba filed a post-RD statement on the 
public interest pursuant to Commission Rule 210.50(a)(4). On October 1, 
2014, GPH filed its post-RD public interest statement pursant to the 
Commission Rule 210.50(a)(4). No responses were filed by the public in 
response to the post-RD Commission Notice issued on September 3, 2014. 
See Notice of Request for Statements on the Public Interest (Sept. 3, 
2014).
    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 part.
    Specifically, the Commission has determined to review the ALJ's 
construction of the limitation ``frame buffer'' in claims 2, 3, and 7 
of the '327 patent and claims 1, 7, and 8 of the '158 patents, and the 
claim limitations ``scan converter'' and ``scan convert data'' recited 
in claim 1 of the '158 patent. In addition, the Commission has 
determined to review the final ID's finding that claim 1 of the '158 
patent is not invalid under 35 U.S.C. 112 for failure to satisfy the 
written description requirement.
    The Commission has also determined to review the final ID's finding 
that the reference Martin, P. et al., ``Turbo VRX: A High-Performance 
Graphics Workstation Architecture'' (``the Martin publication'') does 
not anticipate claim 2 of the '327 patent and claims 1, 4, 7, and 10 of 
the '158 patent. The Commission has further determined to review the 
final ID's finding that Toshiba failed to show by clear and convincing 
evidence that the asserted claims of the '327 and '158 patents are 
obvious in view of Martin, U.S. Patent No. 5,977,983 to Einkauf 
(``Einkauf''), and AT&T's Pixel Machine (``Pixel Machine''), alone or 
in combination with other asserted prior art.
    Because the Commission has determined to review the ALJ's 
constructions of the limitations ``frame buffer,'' ``scan converter,'' 
and ``scan convert data,'' the Commission has also determined to review 
the final ID's finding of infringement with respect to all of the 
accused graphics processing units, including those for which Toshiba 
did not petition for review.
    The Commission has determined to review the final ID's finding that 
GPH has satisfied the economic prong of the domestic industry 
requirement. Accordingly, the Commission has determined to review the 
final ID's finding that GPH's motion for summary determination that it 
satisfied the economic prong of the domestic industry requirement 
through its licensees' activities under 337(a)(3)(A) and (B) for 
expenditures in labor, capital, plant, and equipment with respect to 
its licensees' research and development activities is moot. 
Furthermore, because the Commission has determined to review the ALJ's 
constructions of the limitations ``frame buffer,'' ``scan converter,'' 
and ``scan convert data,'' the Commission has determined to review the 
final ID's finding that GPH satisfied the technical prong of the 
domestic industry requirement.
    The Commission has further determined to review the final ID's 
finding that the defense of license exhaustion does not apply to 
certain of Toshiba's accused products by virtue of a license agreement 
concerning Toshiba's display panel manufacturers. The Commission has 
also determined to review the final ID's finding that the '327 patent 
is not subject to RAND encumbrances.
    The Commission has determined not to review the remaining issues 
decided in the final ID.
    The parties are requested to brief their positions on the issues 
under review with reference to the applicable law and the evidentiary 
record. In connection with its review, the Commission is particularly 
interested in responses to the following questions:

    1. Does the correct construction of the ``frame buffer'' 
limitation require that the claimed ``frame buffer'' must store 
``floating point color values'' but need not store a ``full frame of 
fragment or pixel data after rasterization is complete but 
immediately prior to the values being scanned out to the display?'' 
Please discuss the correct construction of these terms in reference 
to the intrinsic evidence and Silicon Graphics, Inc. v. ATI 
Technologies, Inc., 607 F.3d 784, 792 (Fed. Cir. 2010).
    2. Please discuss whether the claimed ``scan converter'' is 
capable of operating on an entirely floating point basis while 
receiving and outputting data that is not in floating point format. 
Please address how this affects the proper construction of the claim 
limitations ``scan converter'' and ``scan convert data'' and whether 
claim 1 of the '158 patent is invalid under 35 U.S.C. 112 for 
failure to satisfy the written description requirement.
    3. Please discuss whether the Martin publication by itself is 
enabling prior art. In addition, please address whether GPH's 
reliance on the reference ``High Speed High Quality Antialiased 
Vector Generation'' by A. Barkans to discredit the Martin 
publication is legally permissible in the context of assessing 
whether the Martin publication is enabled.
    4. Please discuss whether, if the Martin publication is enabled, 
the Martin publication itself reads on every limitation of claim 2 
of the '327 patent and claims 1, 4, 7, and 10 of the '158 patent.
    5. Please discuss whether, if the Martin publication is enabled, 
Martin alone or in combination with other prior art renders obvious 
the asserted claims of the '327 and '158 patents with respect to the 
claim limitations ``frame buffer,'' ``s10e5 format,'' ``scan 
converter,'' and ``scan convert data.''
    6. Please discuss whether Einkauf, alone or in combination with 
other prior art, renders obvious the asserted claims of the '327 and 
'158 patents with respect to the claim limitations ``frame buffer,'' 
``s10e5 format,'' ``scan converter,'' and ``scan convert data.''
    7. Please discuss whether Pixel Machine, alone or in combination 
with other prior art, renders obvious the asserted claims of the 
'327 and '158 patents with respect to the claim limitations ``frame 
buffer,'' ``texture circuit,'' ``s10e5 format,'' ``scan converter,'' 
and ``scan convert data.'' In particular, please address if the 
question of whether Pixel Machine renders obvious the ``texture 
circuit'' limitation in claim 4 of the '158 patent remains at issue.
    8. In light of the Commission's determination to review the 
ALJ's construction of the claim limitations ``frame buffer,'' ``scan 
converter,'' and ``scan convert data,'' please discuss whether any 
of the

[[Page 65700]]

accused products infringe the asserted claims of the '327 and '158 
patents. Also, please address whether the source code upon which 
GPH's expert relied with respect to his opinion that the accused 
Toshiba products infringe the asserted claims of the '327 and '158 
patents accurately reflects the operation of those products.
    9. Please discuss, based on record evidence, the extent to which 
GPH's purported licensing-based domestic industry will be ongoing 
following the termination of this investigation.
    10. Please discuss whether GPH has satisfied the economic prong 
of the domestic industry requirement through its licensees' 
activities under 337(a)(3)(A) and (B) for expenditures in labor, 
capital, plant, and equipment with respect to its licensees' 
research and development activities.
    11. In light of the Commission's determination to review the 
ALJ's construction of the claim limitations ``frame buffer,'' ``scan 
converter,'' and ``scan convert data,'' please discuss whether GPH 
has satisfied the technical prong of the domestic industry 
requirement.
    12. Please explain the scope of licensed products recited in the 
license agreement concerning certain of Toshiba's display panel 
manufacturers in accordance with the laws of the state of New York. 
Please discuss whether Toshiba is a sublicensee pursuant to this 
license agreement.
    13. Please discuss whether GPH incurred a RAND obligation as to 
the '327 and/or '158 patent by reason of GPH's or SGI's conduct (1) 
before any of the standards committees with which GPH or SGI was 
involved, or (2) in negotiations with potential licensees. In 
particular, please address: (1) The legal significance of SGI's 
purported statement to the OpenGL Architecture Review Board and the 
Khronos Group Board of Promoters that, as to the '327 patent, it 
will discuss licensing on RAND terms; (2) whether the '327 patent is 
incorporated into an optional extension; (3) if the '327 patent is 
incorporated into an optional extension, is it considered part of 
the Ratified Specification; and (4) whether the asserted claims of 
the '327 and/or '158 patent are ``Necessary Claims'' or ``Necessary 
Patent Claims.''
    14. Please discuss the course of conduct between Toshiba and GPH 
regarding negotiations on RAND licensing terms.
    15. Please discuss whether GPH ever submitted an IP Disclosure 
Certificate in connection with its participation with the Open GL 
standard under the Khronos Group Membership Agreement.

    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. 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 likely to do so. 
For background, see Certain Devices for Connecting Computers via 
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December 
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.
    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 is therefore interested in 
receiving submissions concerning the amount of the bond that should be 
imposed if a remedy is ordered.
    Written Submissions: The parties to the investigation, including 
OUII, are requested to file written submissions on the issues 
identified in this notice. Parties to the investigation, including 
OUII, 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 by the ALJ on remedy and bonding. Complainant 
is also requested to submit proposed remedial orders for the 
Commission's consideration and to provide identification information 
for all importers of the subject articles. Complainant and OUII are 
also requested to state the dates that the patents expire and the HTSUS 
numbers under which the accused products are imported. The written 
submissions and proposed remedial orders must be filed no later than 
close of business on November 21, 2014. Initial submissions are limited 
to 125 pages, not including any attachments or exhibits related to 
discussion of the public interest. Reply submissions must be filed no 
later than the close of business on December 5, 2014. Reply submissions 
are limited to 75 pages, not including any attachments or exhibits 
related to discussion of the public interest. The parties may not 
incorporate by reference their filings before the ALJ. 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 C...210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-884'') 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 01.6. 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 target date for completion of the investigation is extended to 
January 16, 2015.
    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: October 30, 2014.


[[Page 65701]]


    By order of the Commission.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-26246 Filed 11-4-14; 8:45 am]
BILLING CODE 7020-02-P