[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Notices]
[Pages 38762-38763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15552]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1170]


Certain Mobile Devices With Multifunction Emulators; Notice of 
Commission Determination Finding No Violation of Section 337; 
Termination of Investigation

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to affirm, with modifications, the 
Administrative Law Judge's (``ALJ'') final initial determination 
(``ID'') issued on March 16, 2021, finding no violation of section 337 
in the above-referenced investigation. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3042. 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 
on (202) 205-1810.

SUPPLEMENTARY INFORMATION: On August 16, the Commission instituted this 
investigation based on a complaint filed by Dynamics Inc. 
(``Dynamics'') of Cheswick, Pennsylvania. 84 FR 42009-10 (Aug. 16, 
2019). The complaint, as supplemented, alleges violations of section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the 
importation into the United States, the sale for importation, or the 
sale within the United States after importation of certain mobile 
devices with multifunction emulators by reason of infringement of one 
or more of claims 1 and 5-8 of U.S. Patent No. 8,827,153 (``the '153 
patent''); claims 1-20 of U.S. Patent No. 10,032,100 (``the '100 
patent''); claims 1-7, 9-13, 19, 21, and 22 of U.S. Patent No. 
10,223,631 (``the '631 patent''); and claims 1-16 of U.S. Patent No. 
10,255,545 (``the '545 patent''). Id. at 42010. The Commission's notice 
of investigation named as respondents Samsung Electronics Co., Ltd of 
Gyeonggi, Republic of Korea and Samsung Electronics America, Inc. of 
Ridgefield Park, New Jersey (collectively, ``Samsung''). Id. The Office 
of Unfair Import Investigations is not participating in this 
investigation.
    On September 3, 2019, the ALJ set a sixteen-month target date of 
December 16, 2020 for completion of the investigation. Order No. 3 
(Sept. 3, 2019). The Order set an evidentiary hearing for May 11-15, 
2020.
    On November 26, 2019, the ALJ held a Markman hearing, and on 
January 31, 2020, issued Order No. 7, construing

[[Page 38763]]

certain claim terms of the asserted patents.
    On May 20, 2020, the ALJ issued an initial determination granting 
Dynamics' unopposed motion for partial termination of the investigation 
as to claims 5, 6, and 8 of the '153 patent, claims 2, 3, 5, 7, 9-11, 
13-17, 19, and 20 of the '100 patent, claims 2, 3, 5, 7, 9-13, 19, and 
21 of the '631 patent, and claims 2, 4, and 6-16 of the '545 patent. 
Order No. 15 (May 20, 2020), unreviewed by Notice (June 15, 2020).
    Due to the COVID-19 pandemic, the ALJ amended the procedural 
schedule several times. On March 12, 2020, the Commission postponed all 
in-person hearings under section 337 scheduled within the next sixty 
days. See 85 FR 15498 (Mar. 18, 2020). Thus, the ALJ issued Order No. 
10, rescheduling the evidentiary hearing for June 22-26, 2020.
    On April 6, 2020, the ALJ issued Order No. 12, resetting the target 
date to February 23, 2021 due to the COVID-19 pandemic. Order No. 12 
(Apr. 6, 2020), unreviewed by Notice (Apr. 24, 2020).
    On May 14, 2020, the Commission extended the postponement of all 
section 337 hearings. See 85 FR 30734-5 (May 20, 2020). On June 22, 
2020, the Commission further extended the postponement of all in-person 
section 337 hearings. 85 FR 38388-9 (June 26, 2020).
    On August 11, 2020, the ALJ scheduled a virtual hearing for 
November 16-20, 2020 and reset the target date for July 16, 2021. Order 
No. 24 (Aug. 11, 2020), unreviewed by Notice (Sept. 8, 2020).
    On March 16, 2021, the ALJ issued the final ID, finding no 
violation of section 337. The ID found that the importation requirement 
under 19 U.S.C. 1337(a)(1)(B) is satisfied. ID at 28. Specifically, the 
ID found that ``[t]he parties stipulated to facts establishing the 
importation requirement is met for both respondents'' and that 
``Samsung does not dispute the Commission's jurisdiction over this 
investigation or that the requisite importation or sale in connection 
with importation has taken place for each Accused Product.'' Id. 
Accordingly, the ID found that the Commission has jurisdiction over 
this investigation and that the importation requirement has been 
satisfied. Id.
    With respect to the domestic industry requirement, the ID found 
that Dynamics had satisfied the domestic industry requirement for the 
'100 patent, but not the '153, '631, and '545 patents. ID at 183-84. 
For the '153 patent, the ID found that Dynamics failed to show it 
practiced any claim of the patent, but had shown it made significant 
investments under section 337(a)(3)(A) and (B), 19 U.S.C. 
1337(a)(3)(A)-(B). Id. at 60-64, 158-79. Likewise, as to the '631 
patent, the ID found that Dynamics failed to show it practiced any 
claim of the patent, but had made significant investments for purposes 
of subsections (a)(3)(A) and (B). Id. at 127-31, 158-79. For the '545 
patent, the ID found that Dynamics had shown it was ``in the process'' 
of practicing claim 1, but had not shown it was ``in the process'' of 
establishing a U.S. industry. Id. at 148-52, 180-83; see also 19 U.S.C. 
1337(a)(2).
    With respect to infringement and validity, the ID found that 
Samsung infringes claims 1 and 7 of the '153 patent and that Samsung 
failed to establish that those claims are invalid. ID at 45-58, 64-69. 
The ID also found that Samsung infringes claims 1, 4, 6, 12, and 18 of 
the '100 patent (except for claim 6 as to certain modified products), 
but that the asserted claims, except for claim 4 are invalid as 
anticipated or obvious by prior art. Id. at 83-88, 96-115. The ID 
further found that Samsung directly infringes claims 1, 4, 6, and 22 of 
the '631 patent, but that those claims are invalid as anticipated or 
obvious by prior art. Id. at 121-127, 131-140. The ID also found that 
Samsung directly infringes claims 1, 3, and 5 of the '545 patent, but 
that those claims are invalid for anticipation. Finally, the ID found 
that Samsung failed to carry its burden with respect to various 
additional affirmative defenses under 35 U.S.C. 102(f), 116 
(inventorship), or 112 (written description and enablement).
    The ALJ recommended that the Commission should issue a limited 
exclusion order and cease and desist orders if it finds a violation but 
that no bond should be imposed on covered products that may be imported 
during the period of Presidential review. ID/RD at 186-91, 193.
    On March 29, 2021, Dynamics filed a petition for review of the ID, 
and Samsung filed a contingent petition for review. On April 8, 2021, 
Dynamics and Samsung submitted responses to each other's petitions.
    On May 17, 2021, the Commission determined to review the ID in 
part. 86 FR 27651-53 (May 21, 2021). Specifically, the Commission 
determined to review the ID with respect to the following: (1) For the 
'153 patent, claim construction of the term ``analog waveform'' as well 
as the related infringement and technical prong analyses and the ID's 
finding that the combination of Shoemaker and Gutman fails to render 
the asserted claims obvious; (2) for the '100 patent, whether Doughty 
in combination with VivoTech renders obvious claim 4 and whether such 
issue was waived, whether claims 4 and 6 are infringed, and whether the 
domestic industry requirement is satisfied; and (3) for the '545 
patent, the ID's domestic industry findings. Id. at 27652. In 
connection with its review, the Commission requested that the parties 
brief their positions on certain issues.
    Having examined the record of this investigation, including the ID, 
the parties' submissions and the responses thereto, the Commission has 
determined to affirm, with modifications, the ID's finding of no 
violation of section 337 in this investigation. With respect to the 
issues under review, for the '153 patent, the Commission has determined 
to (1) adopt Samsung's proposed construction of the claim limitation 
``analog waveform'' to mean ``a wave shape whose amplitude changes in a 
continuous fashion,'' but clarify that the construction encompasses so-
called real-world square waves; (2) affirm the ID's finding that the 
accused Samsung Products infringe the asserted claims; (3) affirm the 
ID's finding that Dynamics failed to adduce sufficient evidence to 
establish that its DI products practice any claims of the patent; and 
(4) reverse the ID's finding that the combination of Shoemaker and 
Gutman fails to render the asserted claims obvious. For the '100 
patent, the Commission has determined to (1) reverse the finding that 
Samsung failed to show that Doughty in combination with VivoTech 
renders claim 4 obvious; (2) clarify that claims 4 and 6 are infringed; 
and (3) find the domestic industry requirement not met because the 
domestic industry claim has been found invalid. For the '545 patent, 
the Commission has determined to take no position on the ID's domestic 
industry findings related to a domestic industry in the process of 
being established.
    Accordingly, the Commission has determined to terminate the 
investigation with a finding of no violation of section 337.
    The Commission's vote on this determination took place on July 16, 
2021.
    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 
210).

    By order of the Commission.

    Issued: July 16, 2021.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2021-15552 Filed 7-21-21; 8:45 am]
BILLING CODE 7020-02-P