[Federal Register Volume 88, Number 12 (Thursday, January 19, 2023)]
[Notices]
[Pages 3435-3437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00907]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1281]


Certain Video Security Equipment and Systems, Related Software, 
Components Thereof, and Products Containing Same; Notice of a 
Commission Determination To Review in Part a Final Initial 
Determination Finding a Violation of Section 337; Request for Written 
Submissions on Issues Under Review and on Remedy, the Public Interest, 
and Bonding; Extension of 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 has determined to review in part a final initial 
determination (``FID'') issued by the presiding administrative law 
judge (``ALJ''), finding a violation of section 337 of the Tariff Act 
of 1930, as amended, in the above-captioned investigation. The 
Commission requests briefing from the parties on certain issues under 
review, as indicated in this notice. The Commission also requests 
written submissions from the parties, interested government agencies, 
and interested persons on the issues of remedy, the public interest, 
and bonding. The Commission has further determined to extend the target 
date in the above-captioned investigation to March 23, 2023.

FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3228. 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 September 14, 2021, the Commission 
instituted this investigation under section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on a 
complaint filed by Motorola Solutions, Inc. of Chicago, Illinois 
(``Motorola Solutions''); Avigilon Corporation of British Columbia, 
Canada; Avigilon Fortress Corporation of British Columbia, Canada; 
Avigilon Patent Holding 1 Corporation of British Columbia, Canada 
(``Avigilon Patent Holding''); and Avigilon Technologies Corporation of 
British Columbia, Canada (collectively, ``Complainants''). See 86 FR 
51182-83 (Sept. 14, 2021). The complaint alleges a violation of section 
337 based upon the importation into the United States, sale for 
importation, or sale after importation into the United States of 
certain video security equipment and systems, related software, 
components thereof, and products containing same by reason of 
infringement of certain claims of U.S. Patent Nos. 7,868,912 (``the 
'912 patent''); 10,726,312 (``the '312 patent''); and 8,508,607 (``the 
'607 patent'') (collectively, ``the Asserted Patents''). Id. The 
complaint further alleges that a domestic industry exists. Id. The 
notice of investigation (``NOI'') names Verkada Inc. of San Mateo, 
California as the only respondent. Id.
    The complaint and NOI were previously amended to reflect the 
transfer of all right, title, and interest in: (1) the '312 patent from 
Avigilon Corporation to Motorola Solutions; (2) the '912 patent from 
Avigilon Fortress Corporation to Motorola Solutions; and (3) the '607 
patent from Avigilon Patent Holding to Motorola Solutions. Order No. 7 
(Dec. 28, 2021), unreviewed by 87 FR 4658-59 (Jan. 28, 2022). The 
complaint and NOI were further amended to add a new licensee, Avigilon 
USA Corporation of Dallas, Texas, as an additional complainant. Id.
    The Commission previously terminated the investigation as to claims 
4 and 10-12 of the '312 patent based on Complainants' partial 
withdrawal of the complaint. Order No. 58 (June 14, 2022), unreviewed 
by Comm'n Notice (June 30, 2022). The Commission also previously 
terminated the investigation as to claims 6, 15, 25, and 26 of the '607 
patent based on Complainants' partial withdrawal of the complaint. 
Order No. 59 (July 13, 2022), unreviewed by Comm'n Notice (Aug. 4, 
2022).
    On October 24, 2022, the presiding ALJ issued the FID, finding that 
a

[[Page 3436]]

violation of section 337 has occurred in the importation into the 
United States, the sale for importation, or the sale within the United 
States after importation, of certain video security equipment and 
systems, related software, components thereof, and products containing 
same that infringe claims 6-11 of the '912 patent. The FID further 
finds no violation of section 337 with respect to the remaining 
asserted claims of the '912 patent, or as to the '312 patent or the 
'607 patent. The FID includes the ALJ's recommended determination on 
remedy, the public interest, and bonding should the Commission find a 
violation of section 337.
    On November 7, 2022, Complainants filed a contingent petition 
requesting review of the FID's findings of non-infringement as to 
asserted claims 1-4, 12-22, 26-28, 30 of the '912 patent, the asserted 
claims of the '312 patent, and the asserted claims of the '607 patent, 
as well as Verkada's proposed redesigns. That same day, respondent 
Verkada filed a combined petition and contingent petition requesting 
review of the FID's findings that the accused products include an 
imported ``article'' that infringes asserted claims 6-11 of the '912 
patent, certain accused products infringe asserted claims 6-11 of the 
'912 patent, and asserted claims 6-11 of the '912 patent are not 
anticipated or rendered obvious by the prior art. Verkada also seeks 
contingent review of the FID's findings that the accused products 
include an imported ``article'' that infringes claims 24-25, 27-28, 32-
33, and 35-36 of the '912 patent; additional non-infringement bases for 
the asserted claims of the '912 patent; claims 1-4 and 12-36 of the 
'912 patent are not anticipated or rendered obvious by the asserted 
prior art; claims 1, 5, 6, 9, 13, and 16 of the '312 patent are not 
anticipated or rendered obvious by the asserted prior art; additional 
non-infringement bases for the asserted claims of the '607 patent; and 
claims 1-4, 7, 10-13, 16, 19-21, and 29 of the '607 patent are not 
rendered obvious by the asserted prior art. On November 15, 2022, 
Complainants and Verkada filed their respective responses to the 
petitions for review.
    On November 23, 2022, Complainants and Verkada each filed a 
submission on the public interest pursuant to Commission Rule 
210.50(a)(4) (19 CFR 210.50(a)(4)). No submissions were received in 
response to the Commission notice seeking public interest submissions. 
87 FR 65827-28 (Nov. 1, 2022).
    Having reviewed the record of the investigation, including the FID, 
the parties' submissions to the ALJ, the petitions for review, and the 
responses thereto, the Commission has determined to review the FID in 
part. Specifically, the Commission has determined to review: (1) the 
FID's findings regarding ``subject matter jurisdiction''; (2) the FID's 
findings that certain accused products infringe claims 6-11 of the '912 
patent and finding a violation of section 337 as to those claims; and 
(3) the FID's finding that asserted claims 6-11 of the '912 patent are 
not invalid as anticipated or obvious. The Commission has determined 
not to review any other findings presented in the FID.
    The Commission has also determined to extend the target date for 
completing this investigation to March 23, 2023.
    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.
    1. Please address whether, under the framework set forth by 
Commissioner Kearns in his Additional Views in Certain High-Density 
Fiber Optic Equipment and Components Thereof, Inv. No. 337-TA-1194, 
Comm'n Op. at 98-104 (Aug. 3, 2021), Verkada's imported cameras should 
be considered ``articles that infringe'' for purposes of finding a 
violation of section 337 by Verkada's direct infringement of claims 6-
11 of the `912 patent.
    2. Regarding claims 6-11 of the '912 patent, given the uncontested 
claim constructions and differences between claim 1 and claims 6-11, 
please address whether the existing evidentiary record supports the 
FID's finding that ``Event Detection and Analysis from Video Streams'' 
by Medioni et al., published in the IEEE Transactions on Pattern 
Analysis and Machine Intelligence, Vol. 23, No. 8 in August 2001 (RX-
302) does not disclose either (1) a processor that receives detected/
determined attributes over a communications channel, or (2) attributes 
which are independent of events. Please also address whether the 
differences between claim 1 and claims 6-11 affect the anticipation 
analysis, and if so, please explain how.
    3. Please provide a status update regarding which of the 
adjudicated design(s) and/or redesign(s) are currently implemented in 
the accused products that are being sold or offered for sale by 
Verkada. In addition, please address whether, if the Commission finds a 
violation as to only the accused products that the FID finds infringing 
with respect to claims 6-11 of the `912 patent, a consent order could 
resolve the parties' remaining issues with respect to that patent.
    The parties are invited to brief only these discrete issues for the 
specific claims identified. 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) a cease and desist order that could 
result in the respondent 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 
a cease and desist order 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.

[[Page 3437]]

    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 and bonding.
    In their initial submission, Complainants are also requested to 
identify the remedy sought and Complainants are requested to submit 
proposed remedial orders for the Commission's consideration. 
Complainants are further requested to state the dates that the Asserted 
Patents expire, 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 27, 
2023. Reply submissions must be filed no later than the close of 
business on February 3, 2023. No further submissions on these issues 
will be permitted unless otherwise ordered by the Commission. 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-1281) 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. Any non-
party wishing to submit comments containing confidential information 
must serve those comments on the parties to the investigation pursuant 
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the 
Commission and served on any parties to the investigation within two 
business days of 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 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 vote for this determination took place on January 
12, 2023.
    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: January 12, 2023.
Katherine M. Hiner,
Acting Secretary to the Commission.
[FR Doc. 2023-00907 Filed 1-18-23; 8:45 am]
BILLING CODE 7020-02-P