[Federal Register Volume 82, Number 192 (Thursday, October 5, 2017)]
[Notices]
[Pages 46519-46522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21426]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1010]


Certain Semiconductor Devices, Semiconductor Packages, and 
Products Containing Same: Commission Determination To Review in Part a 
Final Initial Determination Finding in Part a Violation of Section 337; 
Schedule for Filing Written Submissions on the Issues Under Review and 
on Remedy, the Public Interest, and Bonding; and Denial of a Motion To 
Modify the Administrative Protective Order

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 June 30, 2017, finding in part a 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 August 1, 2017, to amend the administrative protective order. 
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, Esq., 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 at https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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 24, 2016, based on a complaint filed on behalf of Tessera 
Technologies, Inc.; Tessera, Inc.; and Invensas Corporation, all of San 
Jose, California (collectively, ``Tessera''). 81 FR 41344 (Jun. 24, 
2016). The complaint alleged violations of section 337 of the Tariff 
Act of 1930, as amended, 19 U.S.C. 1337, by reason of infringement of 
certain claims of U.S. Patent No. 6,856,007 (``the '007 patent''); U.S. 
Patent No. 6,849,946 (``the '946 patent''); and U.S. Patent No. 
6,133,136 (``the '136 patent''). The complaint further alleged that a 
domestic industry exists. The Commission's notice of investigation 
named 24 respondents. Those respondents are Broadcom Limited of 
Singapore and Broadcom Corporation of Irvine, California (collectively, 
``Broadcom''), and 22 manufacturers and importers of products 
containing Broadcom's semiconductor devices: Avago Technologies Limited 
of Singapore, and Avago Technologies U.S. Inc. of San Jose, California 
(collectively, ``Avago''); Arista Networks, Inc. of Santa Clara, 
California; ARRIS International plc, ARRIS Group, Inc., ARRIS 
Solutions, Inc., ARRIS Enterprises, and Pace Ltd., all of Suwanee, 
Georgia, as well as Pace Americas LLC and Pace USA LLC, both of Boca 
Raton, Florida, and ARRIS Technology, Inc. of Horsham, Pennsylvania 
(collectively, ``ARRIS''); ASUSTek Computer, Inc. of Taipei, Taiwan, 
and ASUS Computer International of Fremont, California (collectively, 
``ASUS''); Comcast Cable Communications, LLC, Comcast Cable 
Communications Management, LLC, and Comcast Business Communications, 
LLC, each of Philadelphia, Pennsylvania (collectively, ``Comcast''); 
HTC Corporation of Taoyuan, Taiwan and HTC America Inc. of Bellevue, 
Washington (collectively, ``HTC''); NETGEAR, Inc. of San Jose, 
California; Technicolor S.A. of Issy-Les-Moulineaux, France, as well as 
Technicolor USA, Inc. and Technicolor Connected Home USA LLC, both of 
Indianapolis, Indiana (collectively, ``Technicolor''). The Office of 
Unfair Import Investigations is not participating in the investigation.
    On June 30, 2017, the presiding administrative law judge issued the 
final ID. The final ID finds a violation of section 337 as to claims 
16, 17, 20, and 22 of the '946 patent. ID at 262. The final ID finds 
that for claims 1, 2, 11, 12, 16, 24-26, and 34 of the '136 patent, the 
claims are infringed and not invalid, but that the existence of a 
domestic industry was not shown. Id. at 262-63. For the '007 patent, 
the final ID finds that infringement was shown only as to

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claim 18, but that for all of the asserted claims (claims 13, 16, and 
18), the claims are invalid, and a domestic industry was not shown. Id. 
at 263.
    On July 17, 2017, Tessera and the respondents each filed a petition 
for Commission review of the ID. On July 25, 2017, each responded to 
the other's petition. In addition, Tessera, Broadcom, Comcast, Arista, 
ARRIS, ASUS, HTC, Netgear, and Technicolor each filed statements on the 
public interest. A number of public interest submissions were submitted 
by the public. In particular, the Commission received submissions from: 
Rep. Susan Brooks (R-IN); Rep. Tony Cardenas (D-CA); Rep. Darrell Issa 
(R-CA); Rep. Doug Lamborn (R-CO); Rep. Edward Royce (R-CA); Rep. Mimi 
Walters (R-CA); Rep. Rod Woodall (R-GA); Under Armour, Inc.; Sprint 
Spectrum LLC; Cable Television Laboratories, Inc.; Public Knowledge and 
the Open Technology Institute at New America; the Multimedia over Coax 
Alliance; the WiFi Alliance; and the Innovation Alliance.
    On August 1, 2017, the respondents moved to modify the 
administrative protective order (``APO'') issued in this investigation 
(Order No. 1 as modified by Order Nos. 38 and 42). The Commission has 
determined to deny that motion, and to deny the respondents' motion to 
file a reply. As the Commission recently reiterated, a supplier of 
confidential business information ``may consent to the disclosure of 
their confidential business information to persons other than those 
qualified under the protective order to receive confidential business 
information.'' Certain Digital Video Receivers & Hardware & Software 
Components Thereof, Inv. No. 337-TA-1001, Comm'n Order at 2 (June 30, 
2017); accord Certain Doxorubicin & Preparations Containing Same, Inv. 
No. 337-TA-300, Comm'n Mem. Op., 1991 WL 788724, at * 6 (June 3, 1991). 
However, neither the supplier of information (here, International 
Business Machines Corporation), nor a party (here, the respondents) may 
seek to amend the APO to allow only carefully circumscribed usage of 
information in certain specified European patent proceedings. To modify 
the APO in this manner would require the Commission to police the use 
of information outside the scope of Commission proceedings, which would 
be unduly burdensome for the Commission and unfair to other tribunals 
whose proceedings may be governed by different laws and rules.
    Having reviewed the record of the investigation, including the 
ALJ's orders and the final ID, as well as the parties' petitions and 
responses thereto, the Commission has determined to review the final ID 
in part.
    As to the '007 patent, the Commission has determined as follows. 
The Commission has determined to review, and on review, to take no 
position on the economic prong of the domestic industry requirement, 
and infringement of claim 18. The Commission has determined not to 
review the remainder of the ID as to the '007 patent, including the 
ID's findings concerning anticipation by, or obviousness over, the 
prior art.
    As to the '946 patent and '136 patent, the Commission has 
determined not to review the ID's findings concerning the level of 
skill in the art. The Commission has determined to review all other 
issues for the '946 patent and the '136 patent.
    In connection with the Commission's review, the Commission will 
rely upon the issues and arguments presented in the parties' petitions 
and responses thereto. The Commission notes that ``[a]ny issue not 
raised in a petition for review will be deemed to have been abandoned 
by the petitioning party and may be disregarded by the Commission in 
reviewing the initial determination.'' 19 CFR 210.43(b)(2).
    The parties are asked to provide additional briefing on 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 and preserved in the proceedings before the ALJ, in 
conformity with the ALJ's Ground Rules (Order No. 2), with citations to 
the record.
    a. For the '946 patent, with regard to the construction of 
``trench(es)'':
    i. Please explain the meaning of the claim term ``trench(es)'' to 
persons skilled in the art in view of the intrinsic evidence of the 
`946 patent. In the context of the '946 patent, does the claim term 
``trench(es)'' describe a specific shape-related property, such as 
elongated? Please discuss the relevance, if any, of Lexington Luminance 
LLC v. Amazon.com Inc., 601 Fed. App'x 963, 970-71 (Fed. Cir. 2015), 
and any other cases believed to be relevant to understanding the 
meaning of ``trench(es)'' to a skilled artisan for the '946 patent.
    ii. Please explain the relevance, if any, of the definition of 
``trench'' in the Applied Materials Glossary as a ``groove etched in a 
wafer to be used as part of a device structure.'' Applied Materials 
Glossary, http://www.appliedmaterials.com/resources/glossary (last 
visited Sept. 26, 2017). Is this meaning consistent with the '946 
patent claims, specification, and prosecution history as understood by 
skilled artisans?
    iii. If the Commission were to construe ``trench'' as ``a long, 
narrow ditch,'' or as a ``groove etched in a wafer to be used as part 
of a device structure,'' please explain whether any accused products or 
domestic industry products (and if so, specifically identify which) 
literally infringe or practice the asserted claims, and why. Under 
those same constructions, please explain whether any accused products 
or domestic industry products (and if so, specifically identify which), 
infringe or practice the asserted claims under the doctrine of 
equivalents, and why.
    b. With regard to the ALJ's decision to allow Tessera to rely upon 
GDS files to demonstrate infringement of the '946 patent, please 
explain how, if at all, the respondents were prejudiced by that 
decision. Please identify the evidence or arguments proffered in 
proceedings before the ALJ or in their petition for Commission review 
by the respondents in support of that alleged prejudice.
    c. For the '946 patent, in connection with the IBM PowerPC 750, 
please explain:
    i. The relevance, if any, of the die markings on the chips examined 
in the ICE report (RX-668) and the SI Report (RX-0499C).
    ii. Whether the IBM PowerPC 750 anticipates the asserted dependent 
claims under the ID's construction of ``trench.''
    d. With regard to the exhaustion issue for the '946 patent:
    i. Please explain whether the accused features (including dummy 
trenches and dummy conductors) were part of a design supplied by 
Broadcom to [CBI REDACTED] or were added by [CBI REDACTED] itself, and 
the resulting implications for the Commission's analysis of [CBI 
REDACTED] in ] 14 of JX-501C. If the accused features (including dummy 
trenches and dummy conductors) were part of a design supplied by 
Broadcom to [CBI REDACTED], please also explain whether such features 
were inserted into the design with [CBI REDACTED] in ] 14 of JX-501C.
    ii. Please discuss the relevant law of exhaustion and first sale as 
it applies to the relationship between a fabless semiconductor company 
(Broadcom) and a fabricator [CBI REDACTED] who manufactures the fabless 
company's own chips. Please address the specific provisions of the 
pertinent agreement, and the relationship between those provisions and 
the law of exhaustion

[[Page 46521]]

and first sale. Please also discuss the relevance, if any, the Federal 
Circuit decision in Medicines Company v. Hospira, Inc., 827 F.3d 1363, 
1373-74 (Fed. Cir. 2016) (en banc) concerning commercial sales, and any 
related cases. Please address the specific provisions of the pertinent 
agreement or agreements alleged to give rise to exhaustion, and the 
relationship between those provisions and the law of exhaustion and 
first sale.
    e. With regard to infringement of the '136 patent, please explain 
whether Broadcom or its fabricators produced documentary evidence that 
demonstrates the cross-sectional structure of the accused interconnect 
structures in all of the accused products, including the locations of 
the layer of copper, barrier layer, layer of AlCu, and pad-limiting 
layer of claim 1 and the layer of copper, layer of isolation, barrier 
layer, layer of AlCu, and pad limiting layer of claim 11. To the extent 
that such evidence does not exist in this field of technology, please 
explain. To the extent that it does exist and was not produced, please 
explain. To the extent that it does exist and is part of the record of 
this investigation, please explain its pertinence, if any, to the ID's 
findings concerning infringement.
    f. For the '136 patent, please explain whether each of the asserted 
claims is obvious over Crostini claim 1, under the relevant law for 
double patenting, if the Commission finds that ``the claimed structure 
solder 38 is formed directly atop the AI contact'' statement 
constitutes clear prosecution disavowal.
    g. With regard to the exhaustion issue for the '136 patent:
    i. Please explain whether, on or before May 23, 2016 (the date the 
complaint was filed in the instant Commission investigation), the party 
alleged to be licensed to the '136 patent was an [CBI REDACTED] as 
defined in section 5 of CX-943C (TSRA1010-00004931).
    ii. Please discuss the relevant law of exhaustion and first sale as 
it applies to the relationship between a fabless semiconductor company 
(Broadcom) and a company [CBI REDACTED] who provides outsourced 
semiconductor assembly and testing for the fabless company's own chips. 
Please also discuss the relevance, if any, the Federal Circuit decision 
in Medicines Company v. Hospira, Inc., 827 F.3d 1363, 1373-74 (Fed. 
Cir. 2016) (en banc) concerning commercial sales, and any related 
cases. Please address the specific provisions of the pertinent 
agreement or agreements alleged to give rise to exhaustion, and the 
relationship between those provisions and the law of exhaustion and 
first sale.
    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 therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation. Public interest submissions should 
be mindful of the ALJ's statement that the ``parties have made no 
effort in their briefing to classify the 2,800 accused products in a 
way that would rationalize different treatment for different categories 
of products.'' ID at 258. The Commission wishes to develop the record, 
as to, inter alia, the following issues:
    (1) Which specific products of the respondents most directly 
implicate the Commission's public interest factors? See 19 U.S.C. 
1337(d)(1), (f)(1) (``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'').
    (2) How are the Commission's public interest factors implicated on 
a patent-claim-by-patent-claim basis for the asserted claims of the 
'946 patent and the '136 patent?
    (3) How, if at all, may public interest concerns be accommodated by 
the tailoring of any remedial orders, including delaying the 
implementation of any Commission remedial orders as to specific 
products for a specific period of time?
    Any person asserting that the public interest should be 
accommodated by tailoring any Commission remedial order as to a subset 
of the accused products (e.g., to delay implementation of a Commission 
remedial order as to specific accused products) shall append to its 
submission one or more declarations in support of those facts in 
compliance with 28 U.S.C. 1746. Each declaration shall be made on 
personal knowledge, and shall show affirmatively that the declarant is 
competent to testify to the matters stated therein. Sworn or certified 
copies of all papers or parts thereof referred to in a declaration 
shall be attached thereto or served therewith.
    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 parties' submissions on the issues under review should not 
exceed 60 pages per side. Reply submissions on the issues under review 
should not exceed 40 pages per side. The respondents may allocate the 
page limits for the issues under review amongst themselves as they see 
fit. The page limits above are exclusive to exhibits, but parties are 
not to circumvent the page limits by incorporating material by 
reference from the exhibits or from the record.
    The parties' opening and reply submissions on the issues of remedy, 
the public interest and bonding are to be

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filed separately from the submissions on the issues under review and 
are not governed by the page limitations recited above. The 
complainants' opening submission on the issues of remedy, the public 
interest and bonding is to include proposed remedial orders for the 
Commission's consideration; the date that the asserted patents expire; 
the HTSUS numbers under which the accused products are imported; and 
the names of known importers of the products at issue in this 
investigation.
    Written submissions by the parties and the public must be filed no 
later than close of business on Friday, October 13, 2017. Reply 
submissions by the parties and the public must be filed no later than 
the close of business on Monday, October 23, 2017. No further 
submissions 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-1010'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://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. All 
information, including confidential business information and documents 
for which confidential treatment is properly sought, submitted to the 
Commission for purposes of this Investigation may be disclosed to and 
used: (i) By the Commission, its employees and Offices, and contract 
personnel (a) for developing or maintaining the records of this or a 
related proceeding, or (b) in internal investigations, audits, reviews, 
and evaluations relating to the programs, personnel, and operations of 
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. 
government employees and contract personnel, solely for cybersecurity 
purposes. All nonconfidential 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: September 29, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-21426 Filed 10-4-17; 8:45 am]
 BILLING CODE 7020-02-P