[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Notices]
[Pages 26091-26094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10520]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-910]


Certain Television Sets, Television Receivers, Television Tuners, 
and Components Thereof; Commission Determination to Review in Part a 
Final Initial Determination; Schedule for Filing Written Submissions

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 final initial 
determination (``final ID'') issued by the presiding administrative law 
judge (``ALJ'') on February 27, 2015, finding no violation of section 
337 of the Tariff Act of 1930, in the above-captioned investigation. 
The Commission has also determined to deny the motion filed on March 
16, 2015, by certain respondents to reopen the record of the 
investigation. The Commission requests certain briefing from the 
parties on the issues under review, as indicated in this notice. The 
Commission also requests briefing from the parties and interested 
persons on the issues of remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-708-2532. 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 March 5, 2014, based on a complaint filed by Cresta Technology 
Corporation, of Santa Clara, California (``Cresta''). 79 FR 12526 
(March 5, 2014). The complaint alleged violations of section 337 of the 
Tariff Act of 1930, as amended 19 U.S.C. 1337, by reason of the 
infringement of certain claims from three United States patents. The 
notice of institution named ten respondents: Silicon Laboratories, Inc. 
of Austin, Texas (``Silicon Labs''); MaxLinear, Inc. of Carlsbad, 
California (``MaxLinear''); Samsung Electronics Co, Ltd. of Suwon, 
Republic of Korea and Samsung Electronics America, Inc. of Ridgefield 
Park, New Jersey (collectively, ``Samsung''); VIZIO, Inc. of Irvine, 
California (``Vizio''); LG Electronics, Inc. of Seoul, Republic of 
Korea and LG Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey 
(collectively, ``LG''); and Sharp Corporation of Osaka, Japan and Sharp 
Electronics Corporation of Mahwah, New Jersey (collectively, 
``Sharp''). The Office of Unfair Import Investigations was also named 
as a party.
    On May 16, 2014, the ALJ issued an initial determination granting 
Cresta's motion to amend the complaint and notice of investigation to 
add six additional respondents: SIO International Inc. of Brea, 
California and

[[Page 26092]]

Hon Hai Precision Industry Co., Ltd. of New Taipei City, Taiwan 
(collectively, ``SIO/Hon Hai''); Top Victory Investments, Ltd. of Hong 
Kong and TPV International (USA), Inc. of Austin, Texas (collectively, 
TPV''); and Wistron Corporation of New Taipei City, Taiwan and Wistron 
Infocomm Technology (America) Corporation of Flower Mound, Texas 
(collectively, ``Wistron''). Order No. 12 (May 16, 2014), not reviewed, 
Notice (June 9, 2014).
    On November 3, 2014, the ALJ granted-in-part Samsung and Vizio's 
motion for summary determination of noninfringement as to certain 
televisions containing tuners made by a third party, NXP Semiconductors 
N.V. Order No. 46 at 27-30 (Nov. 3, 2014), not reviewed, Notice (Dec. 
3, 2014). On November 21, 2014, the ALJ issued granted Samsung's and 
Vizio's motion for summary determination that Cresta had not shown that 
certain Samsung televisions with NXP tuners had been imported. Order 
No. 58 at 4-5 (Nov. 21, 2014), not reviewed, Notice (Dec. 8, 2014).
    On November 12. 2014, the ALJ granted Cresta's motion to partially 
terminate the investigation as to one asserted patent and certain 
asserted claims of the two other asserted patents. Order No. 50 (Nov. 
12, 2014), not reviewed, Notice (Dec. 3, 2014). The two asserted 
patents still at issue in the investigation are U.S. Patent No. 
7,075,585 (``the '585 patent'') and U.S. Patent No. 7,265,792 (``the 
'792 patent''). Claims 1-3, 10, and 12-13 of the '585 patent, and 
claims 1-4, 7-8, and 25-27 of the '792 patent, remain at issue in the 
investigation.
    The presiding ALJ conducted a hearing from December 1-5, 2014. On 
February 27, 2015, the ALJ issued the final ID. The final ID finds that 
Cresta failed to satisfy the economic prong of the domestic industry 
requirement, 19 U.S.C. 1337(a)(2), (a)(3), for both asserted patents. 
To satisfy the economic prong of the domestic industry requirement, 
Cresta relied upon claims 1-3, 5-6, 10, 13-14, 16-19, and 21 of the 
'585 patent; and claims 1-4, 7, 10-12, 18-19, and 26-27 of the '792 
patent. The ID finds that certain Cresta products--on their own, or 
combined with certain televisions into which Cresta's tuners are 
incorporated--practice all of the domestic-industry claims of the '585 
patent, except for claim 14; as well as all of the domestic-industry 
claims of the '792 patent except for claim 27.
    The ID finds some Silicon Labs tuners (as well as certain 
televisions containing them) to infringe claims 1-3 of the '585 patent, 
and no other asserted patent claims. The ID further finds some 
MaxLinear tuners (as well as certain televisions containing them) to 
infringe claims 1-3, 10, 12, and 13 of the '585 patent and claims 1-3, 
7-8, and 25-26 of the '792 patent.
    The ID finds claims 1 and 2 of the '585 patent to be invalid 
pursuant to 35 U.S.C. 102 (anticipation), and claim 3 of the '585 
patent to be invalid pursuant to 35 U.S.C. 103 (obviousness). The ID 
finds all of the asserted claims of the '792 patent to be invalid 
pursuant to 35 U.S.C. 102 or 103.
    The ALJ recommended that if a violation of section 337 is found, 
that a limited exclusion order and cease and desist orders issue. The 
ALJ recommended, however, that the implementation of such orders be 
delayed by twelve months in view of public interest considerations. The 
ALJ also recommended that there be zero bond during the period of 
Presidential review.
    On March 16, 2015, petitions for Commission review were filed by 
the following parties: the Commission investigative attorney (``IA''); 
Cresta; the Silicon Labs respondents; and the MaxLinear respondents. On 
March 24, 2015, OUII and Cresta each filed a reply to the other 
parties' petitions. That same day, the respondents filed a reply to 
Cresta's petition.
    The Commission's determinations to review are as follows:

1. Infringement

    The Commission has determined not to review the ID's claim 
constructions. ID at 16-49. The Commission has determined to review the 
ID's infringement analysis concerning the ``signal processor'' for 
``processing . . . in accordance with'' the ``format of'' the ``input 
RF signal'' limitation of all asserted patent claims. '585 patent col. 
6 line 65--col. 7 line 2 (claim 1); '792 patent col. 10 lines 60-65 
(claim 1); ID at 57-60, 72-75, 84-85 & 94. The Commission has also 
determined to review the ID's infringement analysis concerning the 
``applies one of a plurality of finite impulse response filters . . . 
corresponding to a format of'' the ``input RF signal'' limitation of 
asserted claims 10, 12 and 13 of the '585 patent and all asserted 
claims of the '792 patent. '585 patent col. 7 lines 36-40; '792 patent 
col. 10 line 65--col. 11 line 2 (claim 1); ID at 67-68, 79-80, 85 & 93.
    The Commission has also determined to review the ID's 
determinations concerning contributory infringement of the asserted 
patent claims.
    Notwithstanding the foregoing review, the Commission has determined 
not to review the ID's exclusion of certain testimony by Alan 
Hendrickson. Cresta Pet. at 37. The Commission has also determined not 
to review the ID's findings as to Cresta's lack of evidence regarding 
allegedly representative products. See ID at 65-66, 78-79.

2. Invalidity

    The Commission has determined not to review the ID's finding that 
that claims 1-4 and 25-26 of the '792 patent are anticipated by the 
'585 patent; and not to review the ID's finding that claims 1 and 2 of 
the '585 patent are anticipated by Boie.
    The Commission has determined to review the ID's determinations 
that that the asserted claims are not obvious in view of the 
combination of Boie and VDP. The Commission has also determined to 
review whether claim 3 of the '585 patent is obvious in view of Boie 
and Kerth; whether claim 25 of the '792 patent is obvious in view of 
VDP alone; and whether claim 26 of the '792 patent is obvious in view 
of Boie and Micronas.
    The Commission has determined to review the ID's findings 
concerning an on-sale bar that invalidates claims 1-4, 7-8, and 26-27 
of the '792 patent. ID at 142-47.
    The Commission has determined to review the ID's finding that claim 
1 of the '585 patent is not indefinite under 35 U.S.C. 112 in view of 
the plural and singular use of the term ``signals.'' On review, the 
Commission finds that claim 1 of the '585 patent is not indefinite. The 
respondents have failed to demonstrate clear and convincing evidence of 
invalidity. The use the plural and singular for ``signal'' does not 
create ambiguity in the claim, and neither side's experts had 
difficulty ascertaining the scope of the claim.
    The Commission has also determined to review the issue of whether 
the claims of the '792 patent are invalid under the written description 
requirement of 35 U.S.C. 112. On review, the Commission finds that the 
claims are not invalid under the written description requirement for 
the same reasons provided in the ID as to the '585 patent.

3. Domestic Industry

    The Commission has determined to review whether Cresta proved the 
existence of articles protected by the patents that incorporate the 
XC5000A series tuner. See ID at 195-96. The Commission has determined 
not to review the ID's remaining findings concerning the technical 
prong of the domestic industry requirement,

[[Page 26093]]

including the ID's findings as to tuners other than the XC5000A series.
    The Commission has also determined to review the ID's findings on 
the economic prong of the domestic industry requirement.

4. Other Matters

    The ID recommends certain action concerning a breach of the 
administrative protective order in this investigation. ID at 3 n.1; see 
19 CFR 210.34(c)(2). That recommendation is not part of the Commission 
review of violation of section 337, see 19 CFR 210.42. Accordingly, any 
action by the Commission will be conducted separately from review of 
the ID, in accordance with Commission practice concerning possible 
breaches of administrative protective orders. See generally Notice, 80 
FR 1664 (Jan. 13, 2015).
    On March 16, 2015, Silicon Labs moved the Commission to reopen the 
record to admit as evidence a January 9, 2015, response by Cresta in an 
inter partes review of the '585 patent being conducted by the U.S. 
Patent & Trademark Office (``PTO''). The IA and MaxLinear responded in 
support of the motion; Cresta responded in opposition. Silicon Labs, a 
party to the PTO review proceeding, waited more than two months to 
present the document to the Commission. Silicon Labs could have timely 
moved the ALJ to reopen the record. Accordingly, the Commission has 
determined to deny the motion.
    All other issues upon which the parties petitioned for review that 
are not expressly recited above are not reviewed.
    The parties are asked to brief the following issues with reference 
to the applicable law and the existing evidentiary record. For each 
argument presented, the parties' submissions should set forth whether 
and/or how that argument was presented in the proceedings before the 
ALJ, with citations to the record. See Order No. 2 11.1 (Mar. 4, 2014) 
(Ground Rules).
    a. Cresta alleges that certain accused products practice the claim 
limitations under review because they can operate to receive signals 
according to U.S. standards (6 MHz) as well as foreign standards that 
operate at a bandwidth other than 6 MHz. Please explain whether Cresta 
demonstrated that the accused products are capable of processing 
signals conforming to such foreign standards without modification to 
the accused televisions or tuners (whether by software, firmware or 
hardware). See, e.g., Finjan, Inc. v. Secure Computing Corp., 626 F.3d 
1197, 1204-05 (Fed. Cir. 2010); Silicon Graphics, Inc. v. ATI 
Technologies., Inc., 607 F.3d 784, 794 (Fed. Cir. 2010).
    b. Please explain whether Cresta demonstrated that Silicon Labs' 
non-U and non-V tuners (i.e., those models without a ``U'' or a ``V'') 
process analog and digital signals differently so as to infringe claims 
1-3 of the '585 patent.
    c. In connection with the Commission's consideration of the 
infringement analysis of the two claim limitations on review (``signal 
processor'' and ``applies one of a plurality of finite impulse response 
filters''), please provide a chart that presents the following: the 
accused product, including its model number(s); and for each of the two 
claim limitations on review whether and why the accused product does or 
does not practice that claim limitation under the ID's claim 
constructions, including citations to the evidence of record.
    d. Cresta alleges the contributory infringement of certain asserted 
patent claims by respondents MaxLinear and Silicon Labs. Please explain 
whether the original and/or amended complaint filed by Cresta provided 
the requisite knowledge of the patents asserted in this investigation. 
Parties are to discuss Commission determinations (including those in 
Commission Inv. Nos. 337-TA-723, -744, and -770) as well as federal 
caselaw including, for example, Rembrandt Social Media, LP v. Facebook, 
Inc., 950 F. Supp. 2d 876, 881-82 (E.D. Va. 2013) and cases discussed 
therein. If one or both complaints provide legally adequate knowledge, 
please explain whether a finding of contributory infringement requires 
a showing of the respondents' continued sale of infringing products 
after being served with the complaint, see, e.g., Cresta Post-Trial Br. 
53, and whether Cresta made that showing. Please also discuss on what 
basis, if any, other than the original or amended complaint, the 
respondents were provided with knowledge of the asserted patents for 
purposes of contributory infringement.
    e. Please explain whether the accused tuners are capable of 
substantial noninfringing uses, including whether such accused tuners 
are embedded in systems on a chip, and whether that embedment prevents 
substantial noninfringing uses as to those embedded tuners. Please also 
explain whether and why, legally and factually, the following statement 
is pertinent to the Commission's analysis of contributory infringement 
in this investigation: ``Cresta is not accusing any cable or satellite 
TV set-top boxes in this Investigation, and my infringement findings 
are limited to the SoCs where Cresta has identified [an infringing] 
`plurality of demodulators'. . . .'' ID at 82.
    f. In connection with the Commission's analysis of invalidity of 
claims 10, 12, and 13 of the '585 patent, and the asserted claims of 
the '792 patent in view of Boie and VDP, please explain whether a 
programmable filter meets the limitation of ``appl[ying] one of a 
plurality of finite impulse response filters. . . .''
    g. Should the Commission find a violation of section 337, please 
explain, in view of the facts of this investigation as well as 
Commission precedent concerning remedies, whether public-interest 
considerations, 19 U.S.C. 1337(d)(1), (f)(1), warrant tailoring of any 
remedial orders, and if so, what that tailoring should be. The parties' 
discussion of the public interest considerations implicated by this 
investigation should account for the ID's unreviewed determination that 
Cresta failed to provide adequate evidence as to allegedly 
representative products. See ID at 65-66, 78-79.
    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, Comm'n Op. 
(December 1994).
    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

[[Page 26094]]

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. 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 are requested 
to file written submissions on the issues under review. 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 by the ALJ on remedy and bonding. 
The complainants and the IA are also requested to submit proposed 
remedial orders for the Commission's consideration. The complainants 
are also requested to state the date that the asserted 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 May 14, 2015, and should not exceed 60 
pages. Reply submissions must be filed no later than the close of 
business on May 23, 2015, and such replies should not exceed 40 pages. 
The respondents may allocate the page limits amongst themselves as they 
see fit. 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 CFR 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-910'') 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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.
    Issued: April 30, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-10520 Filed 5-5-15; 8:45 am]
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