[Federal Register Volume 89, Number 176 (Wednesday, September 11, 2024)]
[Notices]
[Pages 73719-73721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20514]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1366]


Certain Semiconductor Devices, and Methods of Manufacturing Same 
and Products Containing the Same; Notice of a Commission Determination 
To Review a Final Initial Determination Finding a Violation of Section 
337; Request for Written Submissions on the Issues Under Review and on 
Remedy, the Public Interest, and Bonding

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 chief administrative law judge 
(``CALJ''), finding a violation of section 337 as to one asserted 
patent and no violation as to the other asserted patent. 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.

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)

[[Page 73720]]

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: The Commission instituted this investigation 
on July 3, 2023, based on a complaint filed by Efficient Power 
Conversion Corporation of El Segundo, California (``EPC''). 88 FR 
42756-77 (Jul. 3, 2023). The complaint alleged violations of section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based on the 
importation into the United States, the sale for importation, or sale 
within the United States after importation of certain semiconductor 
devices, and methods of manufacturing same, and products containing the 
same by reason of the infringement of one or more claims of U.S. Patent 
Nos. 10,312,335 (``the '335 patent''); 8,350,294 (``the '294 patent''); 
8,404,508 (``the '508 patent''); and 9,748,347 (``the '347 patent''). 
Id. The complaint further alleged that a domestic industry exists. Id. 
The Commission's notice of investigation named as respondents 
Innoscience (Zhuhai) Technology, Company, Ltd., of Zhuhai, Guangdong, 
China; and Innoscience America, Inc. of Santa Clara, California 
(together ``Innoscience'' or ``Respondents''). The Office of Unfair 
Import Investigations was also named as a party in this investigation. 
Id.
    On October 13, 2023, Chief Administrative Law Judge (``CALJ'') held 
a Markman hearing.
    On December 13, 2023, the CALJ issued an initial determination 
(``ID'') granting a motion to terminate the investigation as to all 
asserted claims of the '347 patent. Order No. 9 (Dec. 13, 2023), 
unreviewed by Comm'n Notice (Jan. 11, 2024).
    On February 12, 2024, the CALJ issued an ID granting a motion to 
terminate the investigation as to all asserted claims of the '335 
patent. Order No. 12 (Feb. 12, 2024), unreviewed by Comm'n Notice (Mar. 
12, 2024).
    The CALJ held an evidentiary hearing from February 26, 2024 to 
March 1, 2024, and received post-hearing briefs thereafter.
    On July 5, 2024, the CALJ issued the final ID finding a violation 
of section 337 as to claims 2 and 3 of the '294 patent and no violation 
of section 337 as to claim 1 of the '294 patent. The CALJ also found no 
violation of section 337 as to the only asserted claim of the '508 
patent, claim 1. Specifically, the ID found that by appearing and 
participating in the investigation, the parties have consented to 
personal jurisdiction at the Commission. ID at 10-11. The ID found that 
EPC established the importation requirement under 19 U.S.C. 
1337(a)(1)(B), noting that Innoscience does not dispute importing the 
accused products. Id. at 11-12. The ID found that because the accused 
products have been imported into the United States, the Commission has 
in rem jurisdiction over them. Id. at 12. The ID found that EPC owns 
the patents and thus has standing to assert the patents in this 
investigation. Id. The ID found that EPC successfully proved that the 
accused products infringe the asserted claims of the '294 patent 
(claims 1-3) but that unlike claims 2 and 3, claim 1 has been shown to 
be invalid for obviousness. ID at 30-51, 85-100. The ID found that EPC 
failed to prove that the accused products infringe claim 1 of the '508 
patent and that Respondents failed to prove the claim invalid for 
obviousness. Id. at 52-68, 103-117. Finally, the ID found that EPC 
established the economic prong of the domestic industry requirement for 
both the '294 and '508 patents but failed to establish the technical 
prong of the domestic industry requirement for the '508 patent. ID at 
120-151. Thus, the ID found the existence of a domestic industry that 
practices the '294 patent as required by 19 U.S.C. 1337(a)(2) but not 
one that practices the '508 patent.
    The ID included the CALJ's recommended determination on remedy and 
bonding (``RD''). The RD recommended, should the Commission find a 
violation, issuance of a limited exclusion order and cease and desist 
orders against the Respondents. ID/RD at 154-157. The RD also 
recommended imposing a bond in the amount of five percent of entered 
value for infringing products imported during the period of 
Presidential review. Id. at 158-159.
    On July 19, 2024, EPC and Innoscience filed respective petitions 
for review of the ID. On July 29, 2024, the parties, including OUII, 
filed responses to the petitions.
    Having reviewed the record of the investigation, including the 
final ID, the parties' submissions to the CALJ, the petitions for 
review, and the responses thereto, the Commission has determined to 
review the ID in its entirety.
    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) If the Commission were to adopt the construction, proposed by 
OUII, of the limitation ``compensated GaN layer'' recited in claim 1 of 
the '294 patent to mean ``a GaN layer in which one type of impurity 
cancels the electric effects of another type of impurity,'' how does 
that construction affect the ID's infringement, invalidity, and 
technical prong of the domestic industry analyses?
    (2) Did the CALJ correctly find that Uemoto fails to disclose 
element [1b] ``a set of III-N transition layers above the substrate'' 
recited in claim 1 of the '294 patent, even though neither EPC nor OUII 
disputed Respondents' assertion that Uemoto disclosed this limitation? 
See ID at 73.
    (3) Please explain whether claim 1 of the '508 patent is limited to 
using a single mask to etch both the gate contact and doped GaN layer 
based on the '508 patent's description of the ``present invention.'' 
Please also explain whether performance of the claimed steps in the 
order [1f]-[1g]-[1i]-[ih] (as permitted under the ID's construction of 
the order of steps) requires the use of a single mask to perform both 
etching steps or otherwise allows the use of two separate masks. If the 
Commission were to construe claim 1 of the '508 patent to require the 
claimed steps be performed in the recited order ([1f]-[1g]-[1h]-[1i]), 
how does that affect the ID's infringement, invalidity, and technical 
prong of the domestic industry analyses?
    (4) Please clarify whether EPC's ``total operating expenditures'' 
identified on page 129 of the ID includes foreign manufacturing 
expenses for the domestic industry products.
    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

[[Page 73721]]

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. In addition, the Commission requests responses 
to the following question regarding the public interest:

    Please provide specific facts and data with respect to 
Respondents' assertion that ``an exclusion order would have 
significant impacts on U.S. consumers and economy at large'' and 
that ``[w]ithout a delay in the effective date of an exclusion 
order, an immediate and potentially multi-year shortage across a 
wide variety of industries could not be averted given alternative 
suppliers' existing production capacities and a lack of readily 
available GaN semiconductor devices.'' Resp. PI Stmt. at 2. Please 
include in your discussion, the shares of the U.S. market for EPC 
and Respondents, as well as other suppliers and whether these 
suppliers have the capability to supply U.S. demand in the event of 
an exclusion order and/or cease and desist orders.

    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 CALJ on 
remedy 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 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 September 19, 
2024. Reply submissions must be filed no later than the close of 
business on September 26, 2024. No further submissions on these issues 
will be permitted unless otherwise ordered by the Commission. Opening 
submissions are limited to 50 pages. Reply submissions are limited to 
30 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 (Mar. 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1366) 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 September 
5, 2024.
    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: September 5, 2024.
Sharon Bellamy,
Supervisory Hearings and Information Officer.
[FR Doc. 2024-20514 Filed 9-10-24; 8:45 am]
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