[Federal Register Volume 84, Number 146 (Tuesday, July 30, 2019)]
[Notices]
[Pages 36935-36937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16151]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1098]


Certain Subsea Telecommunication Systems and Components Thereof; 
Notice of a Commission Determination To Review In Part a Final Initial 
Determination Finding No Violation of Section 337 and To Extend the 
Target Date; Schedule for Filing Written Submissions

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 Administrative Law 
Judge's (``ALJ'') final initial determination (``ID''), issued on April 
26, 2019, finding no violation of section 337 in the above-referenced 
investigation and to extend the target date for completion of the 
above-referenced investigation to September 30, 2019. The Commission 
requests briefing from the parties on certain issues under review, as 
indicated in this notice.

FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2392. Copies of non-
confidential

[[Page 36936]]

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 January 26, 2018, based on a complaint, as supplemented, filed on 
behalf of Neptune Subsea Acquisitions Ltd. of the United Kingdom; 
Neptune Subsea IP Ltd. of the United Kingdom; and Xtera, Inc. of Allen, 
Texas (collectively, ``Xtera''). 83 FR 3770 (Jan. 26, 2018). The 
complaint, as supplemented, alleges violations of Section 337 of the 
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), based 
upon the importation into the United States, the sale for importation, 
and the sale within the United States after importation of certain 
subsea telecommunication systems and components thereof by reason of 
infringement of one or more claims of U.S. Patent Nos. 8,380,068; 
7,860,403 (``the '403 patent''); 8,971,171; 8,351,798 (``the '798 
patent''); and 8,406,637. The complaint further alleges that an 
industry in the United States exists as required by section 337. The 
notice of investigation, as originally issued, named as respondents 
Nokia Corporation of Espoo, Finland; Nokia Solutions and Networks B.V. 
of Hoofddorp, The Netherlands; Nokia Solutions and Networks Oy of 
Espoo, Finland; Alcatel-Lucent Submarine Networks SAS of Boulogne-
Billancourt, France; Nokia Solutions and Networks US LLC of Phoenix, 
Arizona; NEC Corporation of Tokyo, Japan; NEC Networks & System 
Integration Corporation of Tokyo, Japan; and NEC Corporation of America 
of Irving, Texas. The Office of Unfair Import Investigations was named 
as a party in this investigation.
    The corporate name of Neptune Subsea Acquisitions Ltd. was changed 
to Xtera Topco Ltd. ID at 3. Respondents Nokia Solutions and Networks 
B.V.; Nokia Solutions and Networks Oy; and Nokia Solutions and Networks 
US LLC were terminated from the investigation based on withdrawal of 
the complaint. Id. The corporate name of Alcatel-Lucent Submarine 
Networks SAS was corrected to Alcatel Submarine Networks. Id. 
Respondent Nokia of America Corporation of New Providence, New Jersey 
was later added to the investigation. Id.
    Of the patents that formed the basis for institution of this 
investigation, only the '798 patent and the '403 patent remain in 
dispute. ID at 3-4, 6.
    On April 26, 2019, the ALJ issued his final ID and his recommended 
determination. The ID found no violation of section 337 with respect to 
asserted claims 13, 15, and 19 of the '798 patent and claims 8, 9, and 
12 of the '403 patent by Respondents Nokia Corporation; Alcatel 
Submarine Networks; and Nokia of America Corporation (collectively 
``Nokia''); and NEC Corporation; NEC Networks & System Integration 
Corporation; and NEC Corporation of America (collectively ``NEC''). 
Specifically, with respect to the '798 patent, the ID found that Xtera 
produced no evidence at the evidentiary hearing to show a violation of 
section 337 based on infringement of claims 13, 15, and 19. 
Accordingly, the ID found that Xtera has not established a violation of 
section 337 based on infringement of the '798 patent. With respect to 
the '403 patent, the ID found that Respondents do not infringe and 
Xtera's domestic industry products do not practice claims 8, 9, and 12 
of the '403 patent. The ID also found that claims 8, 9, and 12 of the 
'403 patent are invalid as anticipated by U.S. Patent No. 6,430,336. 
The ID further found that complainants had not established that 
complainants' investments and activities satisfied the domestic 
industry requirement with respect to articles protected by the '403 
patent.
    On May 13, 2019, Xtera filed a petition for review of the final ID. 
On the same day, Respondents filed a contingent petition for review of 
the final ID. Thereafter, the parties filed responses to the petitions 
for review and public interest comments pursuant to Commission Rule 
210.50(a)(4).
    Having examined the record of this investigation, including the ID, 
the petitions for review, and the responses thereto, the Commission has 
determined to review the ID's findings with respect to the '403 patent 
in their entirety, including domestic industry. The Commission does not 
review the remainder of the ID.
    The Commission has determined to extend the target date in this 
investigation to September 30, 2019.
    Xtera originally asserted infringement of claims 8, 9, 12, and 13 
of the '403 patent. See ID at 6. Xtera, however, presented no evidence 
or argument regarding claim 13 at the hearing or in post-hearing 
briefing. The ID makes no findings with respect to claim 13 and Xtera's 
petition for review does not address that claim. Further, Xtera's 
petition for review does not address the '798 patent. The Commission 
hereby determines that Xtera has thus effectively withdrawn its 
allegations with respect to claim 13 of the '403 patent and the '798 
patent.
    The parties are requested to brief their positions on only the 
following issues under review with reference to the applicable law and 
the evidentiary record.
    1. The ID adopts the parties' agreed-upon function for Element 8A 
to be ``producing a periodic series of optical pulses defining a series 
of time slots, wherein one pulse appears in each time slot.'' Does the 
ID's interpretation of the claimed function for Element 8A require the 
production of a periodic series of ``narrow'' optical pulses? Did the 
parties provide argument before the ALJ as to whether or not the 
claimed function requires the production of a periodic series of 
``narrow'' optical pulses?
    2. In view of your response to the first question, please discuss 
whether the specification or prosecution history clearly links or 
associates the combination of the light source and the first modulator 
in the prior art transmitter shown in Figure 1 of the '403 patent to 
the claimed function for Element 8A.
    3. If your positions on the above issues are adopted by the 
Commission, please explain the effect, if any, on the ID's 
infringement, invalidity, and technical prong findings. The parties are 
not to brief other issues on review, which are adequately presented in 
the parties' existing filings. At this time, the Commission does not 
request written submissions on remedy, public interest, or bonding.
    Written Submissions: Each party's written submission responding to 
the above questions and any response to the initial submissions should 
be no more than 50 pages. The written submissions must be filed no 
later than close of business on Wednesday, August 7, 2019. Reply 
submissions of no more than 35 pages must be filed no later than the 
close of business on Wednesday, August 14, 2019. 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

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stated above and submit 8 true paper copies to the Office of the 
Secretary by noon the next day pursuant to Commission Rule 210.4(f), 19 
CFR 210.4(f). Submissions should refer to the investigation number 
(``Inv. No. 1098'') 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, solely for cybersecurity 
purposes. All contract personnel will sign appropriate nondisclosure 
agreements. 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: July 24, 2019.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2019-16151 Filed 7-29-19; 8:45 am]
 BILLING CODE 7020-02-P