[Federal Register Volume 80, Number 171 (Thursday, September 3, 2015)]
[Notices]
[Pages 53327-53328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21896]



[[Page 53327]]

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

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-613 REMAND]


Certain 3G Mobile Handsets and Components Thereof: Commission 
Determination Finding No Violation of Section 337; Termination of 
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found no violation of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. Sec.  1337 (``section 337'') in the above-
referenced investigation. The investigation is terminated.

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. Sec.  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. 
Sec.  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. 
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, correcting the identification of the claims of the asserted 
patents at issue on remand. 79 FR 17571-73 (Mar. 28, 2014).

[[Page 53328]]

    On April 27, 2015, the ALJ issued his final initial determination 
on remand (``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 25, 2015, the Commission determined to review the RID in 
part. 80 FR 37656-658 (July 1, 2015). Specifically, the Commission 
determined to review the RID's findings concerning the application of 
the Commission's prior construction of the claim limitation 
``successively [transmits/transmitted] signals'' 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''). The Commission 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 further determined to review the RID's public interest 
findings. 80 FR at 37657-658.
    On July 10, 2015, InterDigital, Respondents, and the IA submitted 
initial briefs in response to the Commission's notice of review 
concerning issues of violation, remedy, bonding, and the public 
interest. On July 20, 2015, the parties submitted response briefs.
    In response to the Commission's request for briefing on remedy, 
bonding, and the public interest, the following submitted briefing on 
July 10, 2015: Edith Ramirez, Federal Trade Commission Chairwoman; 
Ericsson Inc.; and Intel Corporation, Dell Inc., and Hewlett-Packard 
Company. On July 20, 2015, the following submitted responsive briefing: 
Maureen K. Ohlhausen and Joshua D. Wright, Commissioners of the Federal 
Trade Commission; and J. Gregory Sidak, Chairman of Criterion 
Economics.
    On July 20, 2015, Respondents filed a motion to strike the 
declaration of Dr. Jackson that InterDigital submitted as an attachment 
to its response to the Commission's notice. On July 23, 2015, the IA 
filed a response in support of the motion to strike. On July 30, 2015, 
InterDigital filed a response opposing the motion to strike.
    Having examined the record of this investigation, including the 
RID, the petitions for review, the responses thereto, and the parties' 
submissions on review, the Commission has determined to find no 
violation of section 337 with respect to the '966 and '847 patents.
    Specifically, the Commission finds that issue preclusion applies 
with respect to the proper construction of the claim limitation 
``successively [transmits/transmitted] signals'' based on the 
Commission's determination in Certain Wireless Devices with 3G and/or 
4G Capabilities and Components Thereof, Inv. No. 337-TA-868, which 
relies substantively on the Commission's determination in Certain 
Wireless Devices with 3G Capabilities and Components Thereof, Inv. No. 
337-TA-800, as affirmed by the United States Court of Appeals for the 
Federal Circuit (InterDigital Commc'ns, Inc. v. Int'l Trade Comm'n, 
2015 WL 669305 (Fed. Cir. Feb. 18. 2015)). The Commission further finds 
its prior constructions of the claim limitation ``successively 
[transmits/transmitted] signals'' in the 868 and 800 investigations are 
persuasive authority which the Commission should apply uniformly to the 
asserted patents.
    The Commission also finds that issue preclusion requires a finding 
of non-infringement with respect to the asserted claims of the '966 and 
'847 patents, and that the evidence in the record independently 
supports a finding of non-infringement with respect to the claim 
limitation ``successively [transmits/transmitted] signals as previously 
construed by the Commission in the 868 investigation.
    The Commission denies as moot Respondents motion to strike the 
declaration of Dr. Jackson.
    The investigation is terminated.
    The Commission will issue an opinion reflecting its decision within 
seven days of this notice.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. Sec.  
1337), and in Part 210 of the Commission's Rules of Practice and 
Procedure (19 CFR part 210).

    By order of the Commission.

    Issued: August 28, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-21896 Filed 9-2-15; 8:45 am]
 BILLING CODE 7020-02-P