[Federal Register Volume 83, Number 224 (Tuesday, November 20, 2018)]
[Notices]
[Pages 58592-58594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25291]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1059]


Certain Digital Cameras, Software, and Components Thereof; 
Commission Determination To Review-In-Part a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions; Extension of Target Date for Completion of the 
Investigation

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 presiding 
administrative law judge's (``ALJ'') final initial determination 
(``Final ID'') issued on August 17, 2018, finding a violation of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337'') in the above-captioned investigation. The Commission 
has also determined to extend the target date for completion of the 
above-captioned investigation to February 1, 2019.

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 (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 2, 2017, based on a complaint filed by Carl Zeiss AG of 
Oberkochen, Germany, and ASML Netherlands B.V. of Veldhoven, 
Netherlands. 82 FR 25627-28. The complaint alleges violations of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337), in the importation into the United States, the sale 
for importation, and the sale within the United States after 
importation of certain digital cameras, software, and components 
thereof that infringe U.S. Patent Nos. 6,301,440 (``the '440 patent''); 
6,463,163 (``the '163 patent''); 6,714,241 (``the '241 patent''); 
6,731,335 (``the '335 patent''); 6,834,128 (``the '128 patent''); 
7,297,916 (``the '916 patent''); and 7,933,454 (``the '454 patent''). 
Id. The complaint further alleges that a domestic industry exists in 
the United States. The Commission's Notice of Investigation named as 
respondents Nikon Corporation of Tokyo, Japan; Sendai Nikon Corporation 
of Natori, Japan; Nikon Inc. of Melville, New York; Nikon (Thailand) 
Co., Ltd. of Ayutthaya, Thailand; Nikon Imaging (China) Co., Ltd. of 
Wuxi, China; and PT Nikon Indonesia of Jakarta, Indonesia. Id. at 
25627. The Office of Unfair Import Investigations is not participating 
in this investigation. Id. The Commission later terminated respondent 
PT Nikon from the investigation. Order No. 36 (Dec. 27, 2017) 
(unreviewed Notice (Jan. 19, 2018)). The Commission also subsequently 
terminated from the investigation all claims of the '163 and '335 
patents and certain claims of the '440, '241, '128, '916, and '454 
patents. Order No. 23 (Oct. 3, 2017) (unreviewed Notice (Oct. 17, 
2017)); Order No. 32 (Nov. 22, 2017) (unreviewed Notice (Dec. 19, 
2017)); Order No. 45 (Feb. 5, 2018) (unreviewed Notice (Mar. 6, 2018)); 
Order No. 65 (Mar. 27, 2018) (unreviewed Notice (Apr. 25, 2018)); Order 
No. 67 (Apr. 13, 2018) (unreviewed Notice (May 4, 2018)).
    On August 17, 2018, the ALJ issued her Final ID, finding a 
violation of section 337 with respect to asserted claims 1 and 8 of the 
'916, asserted claims 6, 35, and 39 of the '440 patent, and asserted 
claim 22 of the '454 patent. The final ID finds no violation as to 
asserted claims 1, 12, and 16 of the '128 patent, asserted claim 10 of 
the '241 patent, and asserted claims 37, 46, and 50 of the '440 patent.
    In particular, the Final ID finds that asserted claims 1 and 8 of 
the '916 patent read on the accused products under the DOE. The Final 
ID also finds that asserted claims 1 and 8 are not invalid for 
obviousness under 35 U.S.C. 103. The Final ID further finds that Zeiss 
has satisfied the technical prong of the domestic industry (``DI'') 
requirement with respect to the '916 patent.
    The Final ID finds that asserted claims 6, 35, 37, 39, 46, and 50 
of the '440 patent read on the accused products. The Final ID also 
finds that asserted claim 37 is invalid as anticipated under 35 U.S.C. 
102, but that asserted claims 6, 35, 39, 46, and

[[Page 58593]]

50 are not invalid as anticipated under 35 U.S.C. 102 or for 
obviousness under 35 U.S.C. 103. The Final ID further finds that Zeiss 
has satisfied the technical prong of the DI requirement with respect to 
the '440 patent.
    The Final ID finds that asserted claim 22 of the '454 patent reads 
on the accused products. The Final ID also finds that asserted claim 22 
is not invalid as anticipated under 35 U.S.C. 102 or for obviousness 
under 35 U.S.C. 103. The Final ID further finds that Zeiss has 
satisfied the technical prong of the DI requirement with respect to the 
'454 patent.
    The Final ID finds that asserted claims 1, 12, and 16 of the '128 
patent do not read on the accused products. The Final ID also finds 
that asserted claims 1, 12, and 16 are invalid for obviousness under 35 
U.S.C. 103 or as indefinite under 35 U.S.C. 112. The Final ID further 
finds that Zeiss has not satisfied the technical prong of the DI 
requirement with respect to the '128 patent.
    The Final ID finds that asserted claim 10 of the '241 patent reads 
on one of the accused products--the D610 camera. The Final ID also 
finds that asserted claim 10 is not invalid for obviousness under 35 
U.S.C. 103. The Final ID finds that Zeiss has not satisfied the 
technical prong of the DI requirement with respect to the '241 patent.
    In addition, the Final ID finds that Zeiss proved direct 
infringement by Nikon of only the asserted apparatus and system claims 
and failed to prove third-party direct infringement or indirect 
infringement with respect to asserted method claims 46 and 50 of the 
'440 patent and asserted method claims 12 and 16 of the '128 patent.
    The Final ID finds that Zeiss has shown, with respect to the '916, 
440, and '454 patent, that it has a domestic industry in the process of 
being established pursuant to section 337(a)(2) and has satisfied the 
economic prong of the DI requirement pursuant to section 337(a)(3)(B) 
(significant employment of labor or capital) and/or (C) (substantial 
investment in exploitation of the asserted patents).
    The Final ID also contains the ALJ's recommended determination on 
remedy and bonding. The ALJ recommended that the appropriate remedy is 
a limited exclusion order, including a certification provision, and 
cease and desist orders against each of the Nikon respondents. The ALJ 
recommended the imposition of a bond of 0% (no bond) during the period 
of Presidential review.
    On September 4, 2018, the parties each filed petitions for review 
of numerous aspects of the Final ID. On September 12, 2018, the parties 
filed responses to the respective petitions for review.
    On September 19, 2018, Zeiss filed a post-RD statement on the 
public interest pursuant to Commission Rule 210.50(a)(4). Nikon did not 
submit a public interest statement. No public interest submissions were 
filed by the public in response to the post-RD Commission Notice issued 
on August 20, 2018. See Notice of Request for Statements on the Public 
Interest (Aug. 20, 2018); 83 FR 42938-39 (Aug. 24, 2018).
    Having examined the record of this investigation, including the 
Final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the Final ID in part.
    With respect to the '916 patent, the Commission has determined to 
review the Final ID's construction of the limitation ``wherein a 
thickness of the second set of layers is larger than a thickness of the 
first set of layers to reduce size of the sensor die.'' Accordingly, 
the Commission has determined to review the Final ID's findings 
regarding whether asserted claims 1 and 8 read on the accused products, 
as well as the Final ID's findings concerning validity and the 
technical prong of the DI requirement with respect to those claims.
    With respect to the '440 patent, the Commission has determined to 
review the Final ID's finding that the limitation ``photographic expert 
unit which adjusts image capture parameters'' recited in unasserted 
independent claim 1 is not a means-plus-function claim under 35 U.S.C. 
112 ] 6. Accordingly, the Commission has determined to review the Final 
ID's findings regarding whether asserted claims 6, 35, 37, and 39 read 
on the accused products, as well as the Final ID's findings concerning 
validity and the technical prong of the DI requirement with respect to 
those claims.
    With respect to the '454 patent, the Commission has determined to 
review the Final ID's findings regarding whether asserted claim 22 
reads on the accused products, as well as the Final ID's findings 
concerning validity and the technical prong of the DI requirement with 
respect to that claim.
    With respect to the '128 patent, the Commission has determined to 
review the Final ID's construction of the limitations ``coarse motion 
vector'' and ``refined mosaic'' recited in asserted claim 1. The 
Commission has also determined to review the Final ID's finding that 
claim 1, in particular the limitation ``means for generating a refined 
mosaic,'' is invalid as indefinite under 35 U.S.C. 112. The Commission 
has further determined to review the Final ID's findings regarding 
whether asserted claim 1 reads on the accused products as well as the 
Final ID's findings concerning obviousness and the technical prong of 
the DI requirement with respect to that claim.
    The Commission has determined to review the Final ID's finding that 
Zeiss has satisfied the economic prong of the DI requirement under 
section 337(a)(3)(B) and (C) with respect to the '440 patent.
    The Commission has determined not to review the remaining issues 
decided in the Final ID. In particular, the Commission has determined 
not to review the ID's findings that Zeiss failed to show use in the 
United States of the steps of the asserted claimed methods--i.e., 
claims 46 and 50 of the '440 patent and claims 12 and 16 of the '128 
patent. See Final ID at 282, 285. Zeiss has abandoned these method 
claims by failing to seek Commission review of these findings. Under 
Commission Rule 210.43(b) ``[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 . . . .'' 19 CFR 210.43(b). 
The Commission's determination not to review the ALJ's findings that 
Zeiss failed to show use of the steps of the asserted claimed methods 
in the United States results in a determination of no violation based 
on those claims. The Commission also reviews and strikes the sentence 
that traverses pages 276-277 in the Final ID, which is the last 
sentence just prior to heading XII.A.
    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 is particularly 
interested in responses to the following questions:
    1. If the Commission were to construe the limitation ``photographic 
expert unit which adjusts image capture parameters'' recited in claim 1 
of the '440 patent as a means-plus-function claim under 35 U.S.C. 112 ] 
6, please explain whether the patent specification discloses sufficient 
structure to preclude a finding of indefiniteness under 35 U.S.C. 112.
    2. Please address whether, under Zeiss's proposed construction, the 
limitation ``refined mosaic'' recited in claim 1 of the '128 patent is 
invalid under 35 U.S.C. 112 for indefiniteness.
    The parties have been invited to brief only these discrete issues, 
as enumerated above, with reference to the applicable law and 
evidentiary record. The parties are not to brief other issues

[[Page 58594]]

on review, which are adequately presented in the parties' existing 
filings.
    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 (December 
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. Complainant is also requested to submit proposed 
remedial orders for the Commission's consideration. Complainant is 
further requested to state the dates that the patents expire, the HTSUS 
numbers under which the accused products are imported, and any known 
importers of the accused products. The written submissions and proposed 
remedial orders must be filed no later than close of business on 
November 26, 2018. Initial submissions are limited to 30 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 December 3, 2018. Reply submissions are limited to 
15 pages, not including any attachments or exhibits related to 
discussion of remedy, the public interest, and bonding. 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-1059'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.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 \1\, solely for 
cybersecurity purposes. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary and on 
EDIS.
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    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
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    The Commission has also determined to extend the target date for 
completion of the above-captioned investigation to February 1, 2019.
    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: November 15, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-25291 Filed 11-19-18; 8:45 am]
 BILLING CODE 7020-02-P