[Federal Register Volume 83, Number 175 (Monday, September 10, 2018)]
[Notices]
[Pages 45679-45681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19499]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1053]
Certain Two-Way Radio Equipment and Systems, Related Software and
Components Thereof; Commission Determination To Review in Part an
Initial Determination Finding a Violation of Section 337 and Order Nos.
38 and 47; To Request Written Submissions on Remedy, Bonding, and the
Public Interest; and To Extend the 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 a final initial
determination (``ID'') of the presiding administrative law judge
(``ALJ'') finding a violation of section 337 and the ALJ's Order Nos.
38 and 47. The Commission is requesting written submissions on remedy,
bonding, and the public interest including submissions in response to
certain questions directed to the public interest. The Commission has
also extended the target date for completion of the investigation to
November 16, 2018.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2310. 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 May 3, 2017, based on a complaint filed on behalf of Motorola
Solutions, Inc. (``Motorola'') of Chicago, Illinois. 82 FR 20635-36.
The complaint alleged violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C.
[[Page 45680]]
1337, by reason of infringement of certain claims of the '284 patent
and the following U.S. Patent Nos.: 7,369,869 (``the '869 patent'');
7,729,701 (``the '701 patent''); 8,279,991 (``the '991 patent'');
9,099,972; 8,032,169; and 6,591,111. The Commission's notice of
investigation named Hytera Communications Corp. Ltd. of Shenzhen,
China; Hytera America, Inc. of Miramar, Florida; and Hytera
Communications America (West), Inc. of Irvine, California as
respondents (collectively, ``Hytera''). The Office of Unfair Import
Investigations is not participating in the investigation. Id.
On September 18, 2017, the Commission issued notice of its
determination not to review the ALJ's ID (Order No. 10) terminating the
investigation as to: (1) Claims 2, 5, 10, and 16 of the '284 patent;
(2) claims 2-3, 8, 12, 14-15, 20, 22-24, and 30 of the '169 patent; (3)
claims 5, 8, 11-14, 18, and 22 of the '869 patent; (4) claims 3, 5, 8-
10, 15, and 17-18 of the '701 patent; (5) claim 3 of the '972 patent;
and (6) claims 3-5, 8-10, and 14 of the '111 patent. On October 17,
2017, the Commission issued notice of its determination not to review
the ALJ's ID (Order No. 16) terminating the investigation as to claim
10 of the '869 patent. On November 14, 2017, the Commission issued
notice of its determination not to review the ALJ's ID (Order No. 19)
terminating the investigation as to: (1) Claims 1, 4, 12, and 18 of the
'284 patent''); (2) claims 4, 13, 16, and 25 of the '169 patent; (3)
claims 3-4, 9, 19-20, and 23-24 of the '869 patent; (4) claims 2, 4,
and 14 of the '701 patent; (5) claims 4 and 8 of the '972 patent; (6)
claims 6 and 12 of the '111 patent; and (7) claim 19 of the '991 patent
for the purposes of satisfying the technical prong of the domestic
industry requirement.
On December 4, 2017, the Commission issued notice of its
determination not to review the ALJ's ID (Order No. 21) terminating the
investigation as to claims 5 and 18 of the '169 patent. On January 3,
2018, the Commission issued notice of its determination not to review
the ALJ's ID (Order No. 23) terminating the investigation as to: (1)
The '111 and '169 patents; (2) claims 2 and 7 of the '869 patent; and
(3) claims 7-8 and 19 of the '284 patent. On the same date, the
Commission issued notice of its determination not to review the ALJ's
ID (Order No. 24) terminating the investigation as to claim 1 of the
'701 patent. On February 6, 2018, the Commission issued notice of its
determination not to review the ALJ's ID (Order No. 31) terminating the
investigation as to the following patent claims: (1) Claim 13 of the
'701 patent; (2) claim 6 of the '284 patent; and (3) claim 1 of the
'972 patent. On February 26, 2018, the Commission issued notice of its
determination not to review the ALJ's ID (Order No. 40) terminating the
investigation as to the '972 patent.
On January 26, 2018, the ALJ issued Order No. 38 which granted
Motorola's motion in limine to preclude Hytera's licensing defense. On
May 18, 2018, the ALJ issued Order No. 47 which granted-in-part
Motorola's motion to strike certain portions of Hytera's expert
testimony at the evidentiary hearing. On July 3, 2018, the ALJ issued
her final ID and recommended determination (RD) on remedy and bonding
in one document. The ID finds that Hytera's accused products infringe
claims 1, 6, 17, and 21 of the '869 patent; claims 1 and 11 of the '701
patent; and claims 7-8 of the '991 patent. The ID also finds that
Hytera's accused legacy products literally infringe claims 9 and 13-15
of the '284 patent and that Hytera's accused redesigned products
infringe these claims under the doctrine of equivalents. The ID also
finds that Hytera induced infringement of and contributorily infringed
all of the claims of the asserted patents. As part of the ID's finding
of indirect infringement, the ID applied an adverse inference against
Hytera for certain of its witnesses' invocation of their Fifth
Amendment right against self-incrimination. The ID also finds that
Motorola satisfies the domestic industry requirement with respect to
the '869, '701, and '991 patents, but that its domestic products do not
satisfy the technical prong of the domestic industry requirement with
respect to the '284 patent. Accordingly, the ID finds a violation of
section 337 with respect to the '869, '701, and '991 patents. The RD
recommended the issuance of limited exclusion orders directed against
Hytera's infringing products and cease and desist orders directed
against Hytera.
On July 17, 2018, Motorola and Hytera petitioned for review of the
final ID. Hytera's petition for review included a petition for review
of Order No. 47. On July 25, 2018, Motorola and Hytera each filed a
response in opposition to the other party's petition for review. On
August 6 and 7, 2018, respectively, Hytera and Motorola filed
statements on the public interest. On August 10, 2018, the Commission
received statements on the public interest from the general public.
Having examined the record of this investigation, including the ID,
related Orders including Order Nos. 38 and 47, the parties' petitions
for review, and the responses thereto, the Commission has determined to
review-in-part the final ID and Order Nos. 38 and 47. Specifically, the
Commission has determined to review (1) Order No. 38's finding that
Hytera's licensing defense is precluded; (2) Order No. 47's finding
that certain expert testimony from Hytera at the evidentiary hearing is
stricken; (3) the ID's finding that Hytera's accused redesigned
products infringe claims 9 and 13-15 of the '284 patent under the
doctrine of equivalents; (4) the ID's application of an adverse
inference against Hytera as part of the finding of indirect
infringement; and (5) the ID's finding that insufficient record
evidence exists to make a conclusive determination as to whether any
redesigned products infringe the '701 patent and ID's lack of an
express finding on this issue with respect to the '869 or '991 patent.
The Commission has determined not to review the remainder of the final
ID. The Commission has also extended the target date for completion of
the investigation to November 16, 2018.
On review, with respect to violation, the parties are requested to
submit briefing limited to the following issues:
(1) Are the redesigned products that allegedly infringe the '284
patent the same as the redesigned products alleged to infringe the
'701, '869, and '991 patents? If not, how do the products differ?
(2) Please discuss which specific redesigned products are
sufficiently fixed and final to be properly within the scope of the
investigation, and whether each such product has been imported into the
United States. See, e.g., Certain Multiple Mode Outdoor Grills and
Parts Thereof, Inv. No. 337-TA-895, Comm'n Op. at 50-55 (Feb. 3, 2015).
(3) Discuss the extent to which Hytera produced information
regarding each such redesign prior to the close of fact discovery.
(4) As to each asserted patent, discuss whether Motorola presented
evidence at the hearing to prove infringement of each redesigned
product.
In addressing these issues, the parties are requested to make
specific reference to the evidentiary record and to cite relevant
authority.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that results 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 respective
respondent being required to cease and desist from engaging in unfair
acts in the importation and sale of such articles.
[[Page 45681]]
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 In the Matter of Certain Devices
for Connecting Computers via Telephone Lines, Inv. No. 337-TA-360,
USITC Pub. No. 2843 (December 1994) (Commission Opinion).
When 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.
When 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 section 337(j), 19 U.S.C.
1337(j) and the 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: 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, and 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. Complainant is also requested to: (1) State the dates
that the patents at issue expire and the HTSUS numbers under which the
accused articles are imported; and (2) supply a list of known importers
of the accused products. Also specifically, with respect to the public
interest, the Commission requests briefing on the following issues:
(1) Please comment on the availability of similar products from
suppliers other than Hytera or Motorola (including market share of
these other sources) that can perform ``mission-critical'' two-way
radio communication.
(2) With respect to (1), please comment on whether such alternative
suppliers also provide the same features that Hytera's products provide
(e.g., unique pseudo trunking, noise cancellation, ``man down''
feature, ``lone worker'' feature) as well as whether Motorola's
products provide the same features as Hytera's products. Also please
address the interoperability of various suppliers' products in two-way
radio communication systems.
(3) Please comment on the extent to which a distributor of Motorola
two-way radio communication products must offer only Motorola products,
or whether such a distributor can also offer two-way radio
communication equipment and products from other suppliers.
(4) Please comment on whether any potential exclusion order and/or
cease and desist order should include a repair/service exception
regarding service to existing Hytera two-way radio communications
products that were sold prior to the effective date of any such order.
If you advocate for such an exception, please address the appropriate
parameters of such an exception, and provide proposed language.
The written submissions and proposed remedial orders must be filed
no later than September 18, 2018. Reply submissions must be filed no
later than September 25, 2018. No further submissions on these issues
will be permitted unless otherwise ordered by the Commission. In
addressing the issues on violation, the parties are limited to 25 pages
for the initial submission and 15 pages for the reply submission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit eight
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-1053'') 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 of 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 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,\1\ solely for cybersecurity purposes.
All non-confidential written submissions will be available for public
inspection at the Office of the Secretary.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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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 4, 2018.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2018-19499 Filed 9-7-18; 8:45 am]
BILLING CODE 7020-02-P