[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Notices]
[Pages 73316-73318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27945]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1224]


Certain Digital Video-Capable Devices and Components Thereof; 
Commission Determination To Review a Final Initial Determination 
Finding No Violation of Section 337; Request for Written Submissions on 
the Issues Under Review and on Remedy, the Public Interest, and 
Bonding; Extension of the Target Date

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``Commission'') has determined to review a final initial 
determination (``ID'') of the presiding administrative law judge 
(``ALJ''). The Commission requests written submissions from the parties 
on the issues under review and submissions from the parties, interested 
government agencies, and other interested persons on the issues of 
remedy, the public interest, and bonding, under the schedule set forth 
below. The Commission also extends the target date for completion of 
the investigation until March 23, 2022.

FOR FURTHER INFORMATION CONTACT: Amanda P. Fisherow, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street 
SW, Washington, DC 20436, telephone (202) 205-2737. 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: The Commission instituted the present 
investigation on October 22, 2020, based on a complaint and supplement 
thereto filed by Koninklijke Philips N.V. of Eindhoven, Netherlands and 
Philips North America LLC of Cambridge, Massachusetts (collectively, 
``Philips''). 85 FR 67373-74 (Oct. 22, 2020). The complaint, as 
supplemented, alleged violations of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337, based upon the importation, sale for 
importation, and sale in the United States after importation of certain 
digital video-capable devices and components thereof by reason of 
infringement of certain claims of U.S. Patent Nos. 9,436,809 (``the 
'809 patent''); 9,590,977 (``the '977 patent''); 10,091,186 (``the '186 
patent''); and 10,298,564 (``the '564 patent''). Id. at 67373. The 
complaint further alleged that an industry in the United States exists 
or is in the process of being established, as required by section 337. 
Id. The notice of investigation named the following respondents: Dell 
Technologies Inc. of Round Rock, Texas and Dell Inc. of Round Rock, 
Texas (together ``Dell''); Hisense Co. Ltd. of Qingdao, China, Hisense 
Visual Technology Co., Ltd. of Qingdao, China, Hisense Electronics 
Manufacturing Company of America Corporation of Suwanee, Georgia, 
Hisense USA Corporation of Suwanee, Georgia, Hisense Import & Export 
Co. Ltd. of Qingdao, China, Hisense International Co., Ltd. of Qingdao, 
China, Hisense International (HK) Co., Ltd. of Sheung Wan, Hong Kong 
(SAR), and Hisense International (Hong Kong) America Investment Co., 
Ltd. of Sheung Wan, Hong Kong (SAR) (together, ``Hisense''); HP, Inc. 
of Palo Alto, California (``HP''); Lenovo Group Ltd. of Quarry Bay, 
Hong Kong (SAR) and Lenovo (United States), Inc. of Morrisville, North 
Carolina (together, ``Lenovo''); LG Electronics, Inc. of Seoul, 
Republic of Korea and LG Electronics USA, Inc. of Englewood Cliffs, New 
Jersey; TCL Industries Holdings Co., Ltd., of Guangdong, China, TCL 
Electronics Holdings Ltd. of Hong Kong Science Park, Hong Kong (SAR), 
TCL King Electrical Appliances (Huizhou) Co. Ltd. of Huizhou, China, 
TTE Technology, Inc. of Corona, California, TCL Moka International Ltd. 
of Sha Tin, Hong Kong, TCL Moka Manufacturing S.A. de C.V. of Tijuana, 
Mexico, TCL Smart Device (Vietnam) Company Ltd. of Binh Duong, Vietnam; 
MediaTek Inc. of Hsinchu, Taiwan and MediaTek USA Inc. of San Jose, 
California; Realtek Semiconductor Corp. of Hsinchu, Tiawan 
(``Realtek''); and Intel Corporation of Santa Clara, California 
(``Intel''). Id. at 67374. The Office of Unfair Import Investigations 
(``OUII'') is participating in the investigation. Id.
    During the course of the investigation, Philips moved to terminate 
the investigation as to various claims, patents, and respondents. See 
Order No. 19, unreviewed by Comm'n Notice (Apr. 15, 2021), Order No. 
21, unreviewed by Comm'n Notice (May 12, 2021), Order No. 26, 
unreviewed by Comm'n Notice (Jun 21, 2021), Order 32, unreviewed by 
Comm'n Notice (July 26, 2021), Order No. 40, unreviewed by Comm'n 
Notice (Aug. 2, 2021), and Order No. 46, unreviewed by Comm'n Notice 
(Aug. 10, 2021). The Respondents remaining in the investigation are 
Dell, Hisense, HP, Lenovo, TCL, Realtek, and Intel (together, ``the 
Respondents''). The remaining asserted patent claims are: claims 1, 9, 
11, 12, and 14 of the '186 patent; and claims 1, 18, 19, 21, and 25 of 
the '564 patent.
    On October 21, 2021, the ALJ issued the subject ID. On November 2, 
2021, Philips and OUII each filed petitions for review. Also, on 
November 2, 2021, Respondents Intel, Dell, and Lenovo filed a 
contingent petition for review and Respondents HP, Realtek, Dell, 
Lenovo, Hisense, and TCL (``Receiver Respondents'') filed a separate 
contingent petition for review. On November 10, 2021, Philips, OUII, 
and the Respondents each filed replies.
    Having reviewed the record of the investigation, including the 
final ID, the parties' submissions to the ALJ, and the petitions for 
review and replies, the Commission has determined to review the ID in 
part. Specifically, the Commission has determined to review the ID's 
findings on claim construction, infringement, validity, and domestic 
industry for both of the '186 and '564 patents.
    In connection with its review, the Commission requests responses to 
the following questions. The parties are requested to brief their 
positions with reference to the applicable law and the existing 
evidentiary record.


[[Page 73317]]


    (1) Please discuss whether the evidence establishes that the 
claimed ``certificate'' of the accused products and domestic 
industry products indicates that the second device is compliant with 
at least one compliance rule. In your discussion, please address the 
specific compliance rule(s) at issue and specifically how the 
certificate indicates that the second device is compliant with the 
compliance rule(s). Please address the evidence in the contexts of 
both the '186 and '564 patents.
    (2) Does any of the information contained within the alleged 
``certificate'' of the accused products or domestic industry 
products [[ ]]? See, e.g., ID at 73-75.
    (3) Should ``when,'' as recited in the asserted claims, be 
interpreted to mean ``when and only when''? See Complainants' 
Petition for Review at 23. Did Complainants waive their argument 
that the accused products infringe if ``when'' is construed to mean 
``when and only when''? Please address the intrinsic record in your 
response and any relevant Federal Circuit case law.
    (4) Discuss the capabilities of the accused receiver products 
(and the domestic industry products, if relevant) and whether they 
have instructions arranged to receive protected content only when 
the claimed conditions are satisfied (i.e., [[ ]]).
    (5) Please address whether the ``predetermined time'' 
limitations of the asserted claims are met if ``predetermined time'' 
is construed as ``a time interval selected to ensure that the first 
and second communication devices are sufficiently near one another 
to permit access to the protected content.'' See, e.g., Receiver 
Respondents Petition for Review at 18. Please address this question 
both for infringement and the technical prong of domestic industry.
    (6) Please discuss whether the Commission should apply the 
America Invents Act (``AIA'') or pre-AIA statute in evaluating 
Respondents' validity challenges and in determining the proper 
priority date.
    (7) If the Commission determines that the ID, in addressing 
domestic industry, properly considered labor investments only for 
2020 (see ID at 143-149):
    a. What is the proper allocation percentage that should be 
applied? Please support your argument with citations to record 
evidence.
    b. Can data on one year of investments support the significance 
of an industry that is already established? Please support your 
argument with reference to the statute and any relevant Commission 
and judicial precedent.

    The parties are invited to brief only the discrete issues requested 
above. The parties are not to brief other issues on review, which are 
adequately presented in the parties' existing filings.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of, inter alia, (1) an exclusion order that 
could result in the exclusion of the subject articles from entry into 
the United States; and/or (2) cease and desist orders that could result 
in the respondents 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, Comm'n Op. 
at 7-10 (Dec. 1994).
    The statute requires the Commission to consider the effects of that 
remedy upon the public interest. The public interest factors the 
Commission will consider include the effect that an exclusion order and 
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, 
disapprove, or take no action on the Commission's determination. 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, the public interest, and bonding.
    In its initial submission, Complainant is also requested to 
identify the remedy sought and Complainant and OUII are requested to 
submit proposed remedial orders for the Commission's consideration. 
Complainant is further requested to provide the HTSUS subheadings under 
which the accused products are imported, and to supply the 
identification information for all known importers of the products at 
issue in this investigation. The initial written submissions and 
proposed remedial orders must be filed no later than close of business 
on January 7, 2022. Reply submissions must be filed no later than the 
close of business on January 14, 2022. Opening submissions are limited 
to 60 pages. Reply submissions are limited to 35 pages. No further 
submissions on any of 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. The 
Commission's paper filing requirements in 19 CFR 210.4(f) are currently 
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1224) in a prominent place on the 
cover page and/or the first page. (See Handbook for Electronic Filing 
Procedures, https://www.usitc.gov/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 by marking each document 
with a header indicating that the document contains confidential 
information. This marking will be deemed to satisfy the request 
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) 
& 210.5(e)(2)). Documents for which confidential treatment by the 
Commission is properly sought will be treated accordingly. A redacted 
non-confidential version of the document must also be filed 
simultaneously with any confidential filing. 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

[[Page 73318]]

personnel, solely for cybersecurity purposes. All contract personnel 
will sign appropriate nondisclosure agreements. All nonconfidential 
written submissions will be available for public inspection on EDIS.
    The Commission extends the target date for completion of the 
investigation to March 23, 2022.
    The Commission vote for this determination took place on December 
20, 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 
part 210).

    By order of the Commission.

    Issued: December 20, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-27945 Filed 12-23-21; 8:45 am]
BILLING CODE 7020-02-P