[Federal Register Volume 85, Number 109 (Friday, June 5, 2020)]
[Notices]
[Pages 34649-34650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12152]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1138]


Certain LTE- and 3G-Compliant Cellular Communications Devices; 
Commission Determination To Review in Part a Final Initial 
Determination Finding No Violation of Section 337 and, on Review, To 
Affirm the Final Initial Determination's Finding of No Violation; 
Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that, on February 18, 2020, the 
presiding administrative law judge (``ALJ'') issued a final initial 
determination (``ID'') finding no violation of section 337 in the 
above-captioned investigation. The Commission has determined to review 
the ID in part and, on review, has determined to affirm the final ID's 
finding of no violation. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3179. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
[email protected]. General information concerning the Commission may 
also be obtained by accessing its internet server at https://www.usitc.gov. Hearing-impaired persons are advised that information on 
this matter can be obtained by contacting the Commission's TDD 
terminal, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on October 19, 2018, based on a complaint filed by INVT SPE LLC 
(``INVT'') of San Francisco, California. 83 FR 53105 (Oct. 19, 2018). 
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, or the sale within 
the United States after importation of certain LTE- and 3G-compliant 
cellular communications devices by reason of infringement of certain 
claims of U.S. Patent Nos. 7,339,949 (``the '949 patent''); 7,848,439 
(``the '439 patent''); 6,760,590 (``the '590 patent''); 7,206,587 
(``the '587 patent''); and 7,764,711 (``the '711 patent''). Id. The 
complaint further alleges that a domestic industry exists. Id. The 
notice of investigation named as respondents Apple Inc. (``Apple'') of 
Cupertino, California; HTC Corporation of Taoyuan City, Taiwan; HTC 
America, Inc. of Seattle, Washington; ZTE Corporation of Guangdong, 
China; and ZTE (USA) Inc. of Richardson, Texas (collectively, the 
``Respondents''). Id. at 53106. The Office of Unfair Import 
Investigations (``OUII'') is also named as a party. Id.
    The Commission later terminated the investigation as to: (1) The 
'711 patent, Order No. 20 (Mar. 11, 2019), unreviewed by Comm'n Notice 
(Mar. 25, 2019); and (2) the '949 patent and claim 3 of the '439 
patent, Order No. 46 (July 31, 2019), unreviewed by Comm'n Notice (Aug. 
20, 2019). Remaining in the investigation are claims 3 and 4 of the 
055A;590 patent, claim 4 of the 055A;587 patent, and claims 1 and 2 of 
the 055A;439 patent.
    On February 18, 2020, the ALJ issued the final ID finding no 
violation of

[[Page 34650]]

Section 337. See ID. On March 2, 2020, INVT and OUII each filed 
petitions for review of certain findings in the ID and Respondents 
filed a contingent petition for review. On March 17, 2020, the parties 
filed responses to each other's petitions.
    On April 3, 2020, the ALJ issued a Recommended Determination on the 
Public Interest, Remedy, and Bond (``RD'') recommending that, should 
the Commission reverse her findings in the ID and find a violation of 
Section 337, then the Commission should issue a limited exclusion 
order, with a delayed implementation, and cease and desist orders 
against each Respondent. RD at 3. The RD also recommends imposing no 
bond during the period of Presidential review. Id.
    On April 8, 2020, Apple filed a motion for sanctions against INVT 
(``Apple Motion''). On April 20, 2020, INVT filed an opposition to the 
motion. On April 29, 2020, Apple filed a motion for leave to file a 
reply in support of its motion.
    On May 4, 2020, the Commission received a submission on the public 
interest from INVT. On May 5, 2020, the Commission received submissions 
on the public interest from the following non-parties: (1) ACT/The App 
Association; (2) Cisco Systems, Inc., Dell Technologies, Inc., Hewlett 
Packard Enterprise Company, HP Inc., and the High Tech Inventors 
Alliance; and (3) Computer & Communications Industry Association. On 
May 6, 2020, the Commission also received a submission on the public 
interest from non-party Fair Standards Alliance.
    Having reviewed the record in this investigation, including the 
ALJ's orders and ID, as well as the parties' petitions and responses 
thereto, the Commission has determined to review the ID in part, as 
follows:
    The Commission has determined to review and, on review, take no 
position on the ID's findings regarding the following issues: (1) 
Whether INVT has standing before the Commission to assert the '590, 
'587, and '439 patents; (2) whether INVT satisfied the economic prong 
of the domestic industry requirement; and (3) whether Respondents' 
affirmative defenses of (i) patent exhaustion, (ii) equitable estoppel 
and waiver, and (iii) unclean hands bar the requested relief.
    The Commission has determined not to review the remaining findings 
in the final ID.
    Accordingly, the Commission has determined to affirm the final ID's 
finding of no violation of section 337. The investigation is 
terminated.
    The Commission has also determined to deny Apple's motion for 
sanctions because the information at issue was not disclosed to 
unauthorized persons nor was it placed on the public record. See Apple 
Motion, Exh. 13.
    The Commission vote for these determinations took place on June 1, 
2020.
    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: June 1, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-12152 Filed 6-4-20; 8:45 am]
BILLING CODE 7020-02-P