[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Notices]
[Pages 54172-54173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22033]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1098]


Certain Subsea Telecommunication Systems and Components Thereof; 
Commission Determination Finding No Violation of Section 337; 
Termination 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 find no violation of section 337 of the 
Tariff Act of 1930, as amended, in the above-referenced investigation. 
The investigation is terminated in its entirety.

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 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, 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 
(``the '068 patent''); 7,860,403 (``the '403 patent''); 8,971,171 
(``the '171 patent''); 8,351,798 (``the '798 patent''); and 8,406,637 
(``the '637 patent''). 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 also named as a 
party in this investigation.
    On March 19, 2018, the ALJ issued Order No. 9 to (1) correct the 
corporate name of Alcatel-Lucent Submarine Networks SAS to Alcatel 
Submarine Networks; and (2) partially terminate the investigation based 
on withdrawal of the complaint with respect to Respondents Nokia 
Solutions and Networks B.V.; Nokia Solutions and Networks Oy; and Nokia 
Solutions and Networks US LLC. 83 FR 17677-678 (Apr. 23, 2018). On July 
10, 2018, the ALJ issued Order No. 21 to change the corporate name of 
Neptune Subsea Acquisitions Ltd. to Xtera Topco Ltd. 83 FR 37516-517 
(Aug. 1, 2018). On August 27, 2018, the ALJ issued Order No. 30 to 
amend the complaint and notice of investigation to add Nokia of America 
Corporation of New Providence, New Jersey as a respondent in the 
investigation. 83 FR 47938 (Sep. 21, 2018).
    On November 19, 2018, the ALJ issued Order No. 46 granting in part 
Respondents' motion for summary determination of no violation with 
respect to the '068 patent based on Xtera's failure to establish the 
domestic industry requirement with respect to that patent. See Order 
No. 46 (Nov. 19,

[[Page 54173]]

2018), aff'd with modification, Comm'n Op. (Feb. 14, 2019). The ALJ 
also granted Xtera's motions to withdraw from the investigation all 
asserted claims of the '171 and '637 patents and certain asserted 
claims of the other asserted patents. See Order No. 22 (Aug. 8, 2018) 
(unreviewed); Order No. 47 (Nov. 20, 2018) (unreviewed); Order No. 52 
(Dec. 6, 2018) (unreviewed).
    An evidentiary hearing was held in this investigation from December 
10-14, 2018.
    On April 26, 2019, the ALJ issued his final initial determination 
(``ID'') finding 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 (``Frankel''). 
The ID further found that Xtera had not established that its 
investments and activities satisfied the domestic industry requirement 
with respect to the 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).
    On July 24, 2019, the Commission determined to review in part the 
final ID and to extend the target date in this investigation to 
September 30, 2019. 84 FR 36935-937 (Jul. 30, 2019). Specifically, the 
Commission determined to review the ID's findings with respect to the 
'403 patent in their entirety, including domestic industry. Id. at 
36936. The Commission also determined that Xtera had effectively 
withdrawn its allegations with respect to claim 13 of the '403 patent 
and the '798 patent. Id. The Commission asked the parties to brief 
certain issues under review. Id. The parties filed their respective 
initial submissions on August 7, 2019, and their respective reply 
submissions on August 14, 2019.
    Of the patent claims that formed the basis for institution of this 
investigation, only claims 8, 9 and 12 of the '403 patent remain in 
dispute.
    Having reviewed the parties' submissions and the record evidence, 
the Commission has determined to affirm with modifications the ID's 
finding of no violation of section 337 with respect to the '403 patent. 
Specifically, the Commission has determined to modify the ID's 
construction of the ``means for producing'' limitation in claim 8 of 
the '403 patent. In particular, the Commission adopts the ID's claimed 
function for the ``means for producing'' limitation and clarifies that 
the claimed function does not require the production of ``narrow'' 
optical pulses, i.e., pulses of a particular bit rate. The Commission 
finds the specification clearly links or associates pulsed laser light 
sources (e.g., active mode locked laser 20 in Figure 2), CW lasers 
modulated to create a periodic series of optical pulses (e.g., CW laser 
10 and first modulator 11 in Figure 1), and equivalents thereof to the 
claimed function. Applying that construction, the Commission affirms 
with modifications the ID's findings that (i) the accused products do 
not infringe claims 8, 9 and 12; (ii) the asserted claims are invalid 
as anticipated by Frankel; and (ii) Xtera has not established the 
existence of a domestic industry with respect to the '403 patent. The 
Commission's reasoning in support of its determinations is set forth in 
its concurrently issued opinion.
    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: October 3, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-22033 Filed 10-8-19; 8:45 am]
 BILLING CODE 7020-02-P