[Federal Register Volume 80, Number 126 (Wednesday, July 1, 2015)]
[Notices]
[Pages 37656-37658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16116]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-613 Remand]


Certain 3G Mobile Handsets and Components Thereof; Commission 
Decision to Review in Part a Final Initial Determination on Remand; 
Request for Written Submissions

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

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 on 
remand (``RID'') issued on April 27, 2015, making findings concerning 
whether there is a violation of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337 (``section 337'').

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 Inv. No. 337-TA-
613 on September 11, 2007, based on a complaint filed by InterDigital 
Communications Corp. of King of Prussia, Pennsylvania and InterDigital 
Technology Corp. of Wilmington, Delaware (collectively, 
``InterDigital'') on August 7, 2007. 72 FR 51838 (Sept. 11, 2007). The 
complaint, as amended, alleged violations of section 337 of the Tariff 
Act of 1930 (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 3G mobile handsets and components thereof by 
reason of infringement of certain claims of U.S. Patent Nos. 7,117,004 
(``the `004 patent''); 7,190,966 (``the `966 patent''); 7,286,847 
(``the `847 patent''); and 6,693,579 (``the `579 patent). The Notice of 
Investigation named Nokia Corporation of Espoo, Finland (``Nokia'') and 
Nokia Inc. of Irving, Texas (``Nokia Inc.'') as respondents. The Office 
of Unfair Import Investigations (``OUII'') was named as a participating 
party. The Commission later amended the Notice of Investigation to 
substitute complainant InterDigital Communications, Inc. for 
InterDigital Communications Corp. Notice (Feb. 15, 2015); Order No. 53 
(Jan. 14, 2015). The Commission also later amended the Notice of 
Investigation to add Microsoft Mobile OY (``MMO'') as a party. 79 FR 
43068-69 (July 24, 2014).
    On February 13, 2009, InterDigital moved for summary determination 
that a domestic industry exists because its licensing activities in the 
United States satisfy the domestic industry requirement under 19 U.S.C. 
1337(a)(3)(C). On March 10, 2009, the presiding Administrative Law 
Judge (``ALJ'') issued an initial determination (``ID'') (Order No. 42) 
granting the motion. On April 9, 2009, the Commission determined not to 
review the ID. Notice (Apr. 9, 2009).
    On August 14, 2009, the ALJ issued his final ID, finding no 
violation of section 337. In particular, he found that the asserted 
claims of the patents-in-suit are not infringed and that they are not 
invalid. The ALJ further found no prosecution laches relating to the 
`004, `966, and `847 patents and that the `579 patent is not 
unenforceable.
    On October 16, 2009, the Commission determined to review the final 
ID in part. 74 FR 55068-69 (Oct. 26, 2009) (``Notice of Review''). In 
particular, although the Commission affirmed the ID's determination of 
no violation of section 337 and terminated the investigation, the 
Commission reviewed and modified the ID's claim construction of the 
term ``access signal'' found in the asserted claims of the '847 patent. 
The Commission also reviewed, but took no position on, the ID's 
construction of the term ``synchronize'' found in the asserted claims 
of the '847 patent. The Commission further reviewed, but took no 
position on, validity with respect to all of the asserted patents. The 
Commission did not review the ID's construction of the claim 
limitations ``code'' and ``increased power level'' in the asserted 
claims of the '966 and '847 patents.
    InterDigital timely appealed the Commission's final determination 
of no violation of section 337 as to claims 1, 3, 8, 9, and 11 of the 
'966 patent and claim 5 of the '847 patent to the Federal Circuit. 
Specifically, InterDigital appealed the final ID's unreviewed 
constructions of the claim limitations ``code'' and ``increased power 
level'' in the '966 and '847 patents. Respondent Nokia, the intervenor 
on appeal, raised as an alternate ground of affirmance the issue of 
whether the Commission correctly determined that InterDigital has a 
license-based domestic industry.
    On August 1, 2012, the Federal Circuit reversed the Commission's 
construction of the claim limitations ``code'' and ``increased power 
level'' in the '966 and '847 patents, reversed the Commission's 
determination of non-infringement as to the asserted claims of those 
patents, and remanded to the Commission for further proceedings.

[[Page 37657]]

InterDigital Commc'ns, LLC v. Int'l Trade Comm'n., 690 F.3d 1318 (Fed. 
Cir. 2012). In particular, the Court rejected the final ID's 
construction of the ``code'' limitation as being limited to ``a 
spreading code or a portion of a spreading code'' and, instead, 
construed ``code'' as ``a sequence of chips'' and as ``broad enough to 
cover both a spreading code and a non-spreading code.'' Id. at 1323-27. 
The Court affirmed the Commission's determination that InterDigital has 
a domestic industry. Id. at 1329-30. Nokia subsequently filed a 
combined petition for panel rehearing and rehearing en banc on the 
issue of domestic industry. On January 10, 2013, the Court denied the 
petition and issued an additional opinion addressing several issues 
raised in Nokia's petition for rehearing. InterDigital Commc'ns, LLC v. 
Int'l Trade Comm'n, 707 F.3d 1295 (Fed. Cir. 2013). The Court's mandate 
issued on January 17, 2013, returning jurisdiction to the Commission.
    On February 4, 2013, the Commission issued an Order directing the 
parties to submit comments regarding what further proceedings must be 
conducted to comply with the Federal Circuit's remand. Commission Order 
(Feb. 4, 2013). On February 12, 2014, the Commission issued an Order 
and Opinion deciding certain aspects of the investigation and remanding 
other aspects to the Chief ALJ. 79 FR 9277-79 (Feb. 18, 2014); see also 
Comm'n Op. Remanding Investigation (Feb. 12, 2014); Comm'n Order 
Remanding Investigation (Feb. 12, 2014). On February 24, 2014, Nokia 
petitioned for reconsideration of the Commission's remand Order and 
Opinion. On March 24, 2014, the Commission granted in part the petition 
for reconsideration and issued a revised remand notice, order, and 
opinion. 79 FR 17571-73 (Mar. 28, 2014).
    On April 27, 2015, the ALJ issued the RID. The ALJ found that the 
accused Nokia handsets meet the limitations ``generated using a same 
code'' and ``the message being transmitted only subsequent to the 
subscriber unit receiving the indication'' recited in the asserted 
claims of the '966 and '847 patents. The ALJ also found that the pilot 
signal (P-CPICH) in the 3GPP standard practiced by the accused Nokia 
handsets satisfies the limitation ``synchronize to the pilot signal'' 
recited in the asserted claim of the '847 patent. The ALJ further found 
that the currently imported Nokia handsets, which contain chips that 
were not previously adjudicated, infringe the asserted claims of the 
'966 and '847 patents. The ALJ also found that there is no evidence of 
patent hold-up by InterDigital, but that there is evidence of reverse 
hold-up by the respondents. The ALJ found that the public interest does 
not preclude issuance of an exclusion order. The ALJ did not issue a 
Recommended Determination on remedy or bonding.
    On May 11, 2015, MMO and Nokia Inc. (collectively, ``MMO'') filed a 
petition for review of certain aspects of the RID, including 
infringement, domestic industry, and the public interest. Also on May 
11, 2015, Nokia filed a petition for review of the RID with respect to 
infringement, domestic industry, and whether the Commission has 
jurisdiction over Nokia following the sale of its handset business to 
MMO. Further on May 11, 2015, the Commission investigative attorney 
(``IA'') filed a petition for review of the RID's finding of 
infringement.
    On May 19, 2015, InterDigital filed a response to MMO's and the 
IA's petitions for review. Also on May 19, 2015, MMO filed a response 
to the IA's petition for review. Further on May 19, 2015, the IA filed 
a response to MMO's and Nokia's petitions for review.
    On June 3, 2015, InterDigital filed a statement on the public 
interest pursuant to Commission Rule 210.50(a)(4). Also on June 3, 
2015, several non-parties filed responses to the Commission Notice 
issued on May 4, 2015, including: United States Senator Robert Casey, 
Jr. of Pennsylvania; Microsoft Corporation; Intel Corporation, Cisco 
Systems, Inc., Dell Inc., and Hewlett-Packard Company; Innovation 
Alliance; and Ericsson Inc. See 80 FR 26295-96 (May 7, 2015). On June 
24, 2015, United States Senator Patrick J. Toomey of Pennsylvania also 
filed a response to the Commission's May 4, 2015, notice.
    On June 15, 2015, Respondents filed a motion for leave to file a 
reply in support of their petition for review. Respondents Microsoft 
Mobile Oy and Nokia Inc.'s Motion for Leave to File Reply of 
Respondents Microsoft Mobile Oy and Nokia Inc. in Support of Petition 
for Review (June 15, 2015). On June 17, 2015, the IA filed a response, 
opposing Respondents' motion. Office of Unfair Import Investigation's 
Response to Respondents Microsoft Mobile Oy and Nokia, Inc.'s Motion 
for Leave to File Reply in Support of Petition to Review (June 17, 
2015). On June 19, 2015, InterDigital filed a response, opposing 
Respondents' motion. InterDigital's Response to Respondents MMO and 
Nokia, Inc.'s Motion for Leave to File a Reply in Support of Petition 
for Review (June 19, 2015). The motion is denied.
    Having examined the record of this investigation, including the 
RID, the petitions for review, and the responses thereto, the 
Commission has determined to review the RID in part.
    Specifically, the Commission has determined to review the RID's 
findings concerning the application of the Commission's prior 
construction in Certain Wireless Devices with 3G Capabilities and 
Components Thereof, Inv. No. 337-TA-800 (``the 800 investigation'') and 
Certain Wireless Devices with 3G and/or 4G Capabilities and Components 
Thereof, Inv. No. 337-TA-868 (``the 868 investigation'') of the claim 
limitation ``successively [transmits/transmitted] signals.'' The 
Commission has also determined to review the RID with respect to 
whether the accused products satisfy the claim limitation 
``successively [transmits/transmitted] signals'' as construed by the 
Commission in the 800 and 868 investigations. The Commission has 
further determined to review the RID's public interest findings.
    The Commission has determined not to review the remaining issues 
decided in the RID.
    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 requests 
responses to the following questions:
    1. Have Respondents waived any reliance on the application of the 
Commission's construction in the 800 and 868 investigations of the 
limitation ``successively [transmits/transmitted] signals?''
    2. Do the Commission's determinations in the 800 and/or 868 
investigation constitute an intervening change of controlling legal 
authority such that the Commission should apply the construction of 
``successively [transmits/transmitted] signals'' as found in those 
investigations in determining infringement in this investigation?
    3. What evidence exists in the record of this investigation with 
respect to whether the accused products satisfy the ``successively 
[transmits/transmitted] signals'' limitation as construed by the 
Commission in the 800 and 868 investigations?
    4. Please state and explain your position on whether, for purposes 
of the Commission's consideration of the statutory public interest 
factors, InterDigital has in effect asserted that the patents in 
question are FRAND-encumbered, standard-essential patents.
    5. Please state and explain your position on whether InterDigital 
has offered Respondents licensing terms that reflect the value of its 
own patents.

[[Page 37658]]

    6. What portion of the accused devices is allegedly covered by the 
asserted claims? Do the patents in question relate to relatively minor 
features of the accused devices?
    7. Please state and explain your position on the legal significance 
of InterDigital's alleged willingness to accept an arbitral 
determination of FRAND terms with respect to the patents in question.
    8. Please state and explain your position on the legal significance 
of InterDigital's alleged unwillingness to obtain a judicial 
determination of FRAND terms with respect to the patents in question.
    9. Please state and explain your position on whether Respondents 
have shown themselves willing to take licenses to the patents in 
question on FRAND terms.
    10. Do Respondents' alleged delaying tactics in negotiating with 
InterDigital provide sufficient evidence of reverse hold-up, regardless 
of Respondents' offers to license only InterDigital's U.S. patent 
portfolio?
    11. Do Respondents' licensing counteroffers satisfy the 
requirements of the ETSI IPR Policy?
    12. Please state and explain your position on whether the RID 
equates patent infringement and reverse hold-up.
    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 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.
    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 are requested 
to file written submissions on the issues identified in this notice. 
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 issued in the original investigation on August 14, 
2009. Complainant and OUII are 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 July 10, 2015. 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 July 20, 2015. 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 prior filings before the ALJ or the 
Commission. 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-613 REMAND'') 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.

    Issued: June 25, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-16116 Filed 6-30-15; 8:45 am]
BILLING CODE 7020-02-P