[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Notices]
[Pages 47822-47823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22381]
[[Page 47822]]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-621]
In the Matter of Certain Probe Card Assemblies, Components
Thereof and Certain Tested DRAM and NAND Flash Memory Devices and
Products Containing Same; Notice of Commission Determination To Review
a Final Initial Determination in Part and Set a Schedule for Filing
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 has determined to review in part the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on June 29, 2009, in the above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 205-3116. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street, SW., Washington, DC
20436, telephone (202) 205-2000. General information concerning the
Commission may also be obtained by accessing its Internet server at
http://www.usitc.gov. The public record for this investigation may be
viewed on the Commission's electronic docket (EDIS) at http://edis.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: This investigation was instituted on
December 19, 2007, based on a complaint filed by FormFactor, Inc.
(``FormFactor'') of Livermore, California. The complaint alleged
violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in
the importation into the United States, the sale for importation, and
the sale within the United States after importation of certain probe
card assemblies, components thereof, and certain tested DRAM and NAND
flash memory devices and products containing same by reason of
infringement of certain claims of U.S. Patent Nos. 5,994,152; 6,509,751
(``the `751 patent''); 6,615,485; 6,624,648 (``the `648''patent);
7,168,162 (``the `162 patent''); and 7,225,538. The complaint named
Micronics Japan Co., Ltd.; MJC Electronics Corp.; Phicom Corporation;
and Phiam Corporation as respondents (collectively, ``Respondents'').
Subsequently, the `162 patent was terminated from the investigation.
On December 5, 2008, respondents Phicom Corp. and Phiam Corp.,
(collectively, ``Phicom'') jointly filed a motion for partial summary
determination that claims 20 and 34 of the `648 patent are invalid as
indefinite under 35 U.S.C. 112. On February 11, 2009, the ALJ issued an
ID by Order No. 46. The subject ID states that ``Phicom's motion * * *
for summary determination that the `648 patent is invalid is * * *
granted.'' The ID determines that claims 20 and 34, and any asserted
claims depending therefrom, are invalid. Complainant FormFactor filed a
petition for review of Order No. 46, which Respondents and the
Commission investigative attorney oppose. On March 11, 2009, the
Commission determined to review Order No. 46.
The evidentiary hearing in this investigation was held from
February 24, 2009 through March 6, 2009. On June 29, 2009, the ALJ
issued an Initial Determination on Violation of Section 337 and
Recommended Determination on Remedy and Bond, finding no violation of
section 337. All parties to this investigation, including the
Commission investigative attorney, filed timely petitions for review of
various portions of the final ID, as well as timely responses to the
petitions.
Having examined the record in this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the ID in part. In particular,
the Commission has determined to review: (1) The ID's finding that
Japanese Patent Application Publication H10-31034 to Amamiya et al.
(``Amamiya'' or RX-166) does not anticipate the asserted claims of the
`751 patent under 35 U.S.C. 102; (2) the ID's conclusion of law
regarding non-infringement of the `751 patent by Phicom's accused
products; (3) the ID's conclusion that no analysis of the validity of
the asserted claims that depend from claim 21 of the `152 patent is
needed. The Commission has determined not to review the remainder of
the final ID.
On review, the Commission requests the parties to brief their
positions on the issues under review with reference to the applicable
law and the evidentiary record. The Commission is particularly
interested in responses to the following questions:
(1) With respect to the `751 patent:
(a) What, if any, limitations are missing from the Amamiya
reference such that it does not render the asserted claims of the `751
patent invalid as anticipated?
(b) Is there support for the Commission investigative attorney's
and Phicom's argument that Amamiya anticipates the asserted claims of
the `751 patent, inter alia, by inherency? In answering this question,
address paragraphs 0012 and 0013 on p. 6/8 of Amamiya.
(c) Is the ID's conclusion that there has been no violation of
section 337 with respect to the `751 patent supported by its own
findings?
(2) With respect to the `152 patent:
(a) Is the ID's statement that ``no analysis of the invalidity
arguments related to anticipation and obviousness of the dependent
claims will be made,'' ID at 191, consistent with the proper analysis
under patent law? If not, what, if any, impact would such an error have
on the ID's validity and infringement analyses as to the `152 patent?
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders 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 are likely to do so. For
background, see In the Matter of Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843
(Dec. 1994) (Commission Opinion).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) The
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S.
[[Page 47823]]
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
or disapprove the Commission's action. 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. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed.
Written Submissions: The parties to the investigation are requested
to file written submissions on the issues under review. The submissions
should be concise and thoroughly referenced to the record in this
investigation. 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. Complainant and the Commission
investigative attorney are also requested to submit proposed remedial
orders for the Commission's consideration. Complainant is further
requested to provide the expiration date of the `751 patent and state
the HTSUS number under which the accused articles are imported. The
written submissions and proposed remedial orders must be filed no later
than the close of business on September 25, 2009. Reply submissions
must be filed no later than the close of business on October 2, 2009.
No further submissions on these issues will be permitted unless
otherwise ordered by the Commission.
Persons filing written submissions must file the original document
and 12 true copies thereof on or before the deadlines stated above with
the Office of the Secretary. Any person desiring to submit a document
(or portion thereof) to the Commission in confidence must request
confidential treatment unless the information has already been granted
such treatment during the proceedings. All such requests should be
directed to the Secretary of the Commission and must include a full
statement of the reasons why the Commission should grant such
treatment. See section 201.6 of the Commission's Rules of Practice and
Procedure, 19 CFR 201.6. Documents for which confidential treatment by
the Commission is sought will be treated accordingly. All
nonconfidential written submissions will be available for public
inspection at the Office of the Secretary.
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 sections 210.42-.46 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42-.46).
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
Issued: September 14, 2009.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. E9-22381 Filed 9-16-09; 8:45 am]
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