[Federal Register Volume 75, Number 228 (Monday, November 29, 2010)]
[Notices]
[Pages 73128-73130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29910]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-690]
Certain Printing and Imaging Devices and Components Thereof;
Notice of Commission Determination To Review-in-Part a Final
Determination Finding a Violation of Section 337; 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 a portion of the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on September 23, 2010 finding a violation of section 337 and
to request briefing on the issues under review and on remedy, the
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Daniel E. Valencia, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 205-1999. 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: The Commission instituted this investigation
on October 26, 2009, based on a complaint filed by Ricoh Company, Ltd.
of Tokyo, Japan; Ricoh Americas Corporation of West Caldwell, New
Jersey; and Ricoh Electronics, Inc. of Tustin, California (collectively
``Ricoh''). 74 FR 55065 (Oct. 26, 2009). The complaint alleged, inter
alia, violations of section 337 in the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain printing and imaging devices and
components thereof by reason of infringement of U.S. Patent Nos.
6,209,048 (``the `048 patent''); 6,212,343 (``the `343 patent'');
6,388,771 (``the `771 patent''); 5,764,866 (``the `866 patent); and
5,863,690 (``the `690 patent''). The complaint named Oki Data
Corporation of Tokyo, Japan and Oki Data Americas, Inc. of Mount
Laurel, New Jersey (collectively ``Oki'') as respondents.
On September 23, 2010, the ALJ issued his final ID finding that Oki
violated section 337 in the importation into the United States, the
sale for importation, and the sale within the United States after
importation of certain printing and imaging devices and components
thereof by reason of infringement of several claims in the `690 patent.
The ALJ found that Oki has not violated section 337 with respect to the
`048, `343, `771, and `866 patents. Along with the ID, the ALJ issued a
recommended determination on remedy and bonding (``RD''). Complainant
Ricoh, respondent Oki, and the Commission investigative attorney
(``IA'') filed petitions for review of the ID on October 6, 2010.
Ricoh, Oki, and the IA each filed responses to the petitions for review
on October 14, 2010.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in part. In
particular, the Commission has determined to review all findings and
conclusions relating to whether a violation of section 337 has occurred
with respect to the `343 and `690 patents.
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in responses to the following questions:
The `343 Patent
(1) The Commission has determined to review all findings relating
to the limitation ``a direction orthogonal to a longitudinal direction
of the developing roller,'' as recited in the asserted claims of the
`343 patent.
(a) Please state your position on the meaning of ``a longitudinal
direction of the developing roller,'' as recited in the asserted
claims. How does your position differ from the ALJ's construction?
(b) Specifically, does ``a longitudinal direction'' include any
line extending parallel to the central axis of the roller? Or, does
this refer to the central axis itself?
(c) Please state your position on the meaning of ``a direction
orthogonal to a longitudinal direction of the developing roller.''
Please take into account that the planar blade is bent along its entire
width, and do not confine your analysis to two-dimensional cross-
sections.
(d) Assuming ``a longitudinal direction'' can include any line
extending parallel to the central axis of the roller, can ``a direction
orthogonal'' refer to a direction that is not perpendicular to the
surface of the roller, i.e., a tangent extending through the surface of
the roller?
(e) Given the planar shape of the blade contacts the roller in
three dimensions along the entire width of the blade, and is bent along
the entire width of the blade, is there any bend that would not meet
the ``direction orthogonal'' limitation?
(f) How does your answer to (d) comport with the preferred
embodiment of the `343 patent shown in Figures 8A and 8B? Is the blade
17 shown in Figures 8A and 8B bent in ``a direction orthogonal to a
longitudinal direction of the developing roller?''
(g) How do your answers to (a) through (e) affect the ALJ's
findings regarding infringement, validity, and domestic industry?
(2) The Commission has determined to review the ALJ's construction
of ``a lower edge,'' as recited in the asserted claims of the `343
patent. The asserted claims of the `343 patent recite, among other
things:
[[Page 73129]]
wherein the blade includes a wide-width part * * * and a narrow-
width part * * * configured * * * to be [sic] bend in a direction
orthogonal to a longitudinal direction of the developing roller * *
* and the narrow-width part is disposed downstream of the contact
point of the blade and the roller part * * * in the rotation
direction.
JX-4 (`343 patent), col. 25, ll. 16-30 (emphasis added).
(a) Please explain whether the language emphasized above informs
the meaning of ``a lower edge.''
(b) Can the claimed ``a lower edge'' refer to an edge of the
``narrow-width part,'' an edge of the ``wide-width part,'' or both?
(c) If the narrow-width part of the blade is bent away from the
roller such that the edge opposite the boundary between the wide-width
part and the narrow-width part does not contact the roller, as shown in
Figures 8A, 8B, and 12, how should ``a lower edge'' be construed?
(d) Can ``a lower edge thereof contacts the roller part of the
developing roller'' refer to contact between the roller and an area
extending from the lower edge of the blade to a point on the blade
slightly above the lower edge?
(e) How do your answers to (a) through (d) affect the ALJ's
findings regarding infringement, validity, and domestic industry?
The `690 Patent
(1) The Commission has determined to review the ALJ's determination
of the level of ordinary skill in the art of the `690 patent. See ID at
99. Please comment on what the level of ordinary skill in the art is
with respect to the '690 patent. Please provide specific citations to
the record and testimony. Although the parties are invited to brief
their respective positions generally on this issue, the Commission is
specifically interested in answers to the following questions:
(a) Would it be appropriate for the Commission to modify the ALJ's
determination to add the fields of applied rheology and/or applied
material science to the types of experience that would satisfy the
three-year minimum requirement in the ALJ's determination?
(b) Would it be appropriate for the Commission to modify or remove
the ALJ's determination to remove the three-year minimum experience
requirement altogether?
(c) Would it be appropriate for the Commission to modify the ALJ's
familiarity requirement by, for example, requiring familiarity with at
least one (as opposed to all) of the following technological areas:
heat transfer, fuser roller design and technology, toner rheology,
toner adhesion, release agent management, nip geometry, image fixing,
paper path geometry, contact angle and surface roughness
characteristics and testing of xerographic user rollers?
(d) Would it be appropriate for the Commission to modify the ALJ's
familiarity requirement to remove any technological areas not directly
related to the interaction between a toner and a fuser roller?
(2) The Commission has determined to review the ALJ's determination
that the asserted claims of the `690 patent are not anticipated.
(a) What are the ``above-mentioned surface physical properties''
mentioned in column 6, lines 4-5 of the `690 patent?
(b) Please comment on whether examples 1 and 2 of the `690 patent
inform the patent's statement in column 6 that PTFE
(polytetrafkuoroethylene) and polytetrafluoroethylene/
perfluoralkylvinylether (PFA) are ``[s]pecific examples of materials
for the fixing member which easily satisfy the above-mentioned surface
physical properties.''
(c) Under what circumstances (if any) would a PTFE fuser roller not
have an adhesion constant ratio of less than about 8.0 when measuring
receding and static contact angles using 2-nitropropane and n-heptane,
respectively, as set forth in the `690 patent?
(d) To what extent is the adhesion constant ratio dependent on the
surface roughness of the fuser roller and composition of the toner? How
does the subject matter of dependent claims 9-16 inform your response,
if at all?
(e) Is it appropriate under current legal precedent to consider the
asserted patent's disclosure in determining what would be inherent in
the prior art?
(f) Please comment on whether the dependent claims of the `690
patent are anticipated or obvious, assuming claim 1 of the `690 patent
is found to be anticipated.
(g) What materials are the OL 400 rollers and OL 1200 rollers
coated with? Has this material changed since the critical date of the
`690 patent?
(3) Please state your position with respect to contributory
infringement by Oki of the asserted claims of the `690 patent.
(4) Please provide a summary of Ricoh's annual labor costs
associated with the C200 domestic product. Please isolate costs by year
and indicate any possible trends.
(5) Are the C200 MFP's ``articles protected by the [`690] patent''
under section 337(a)(2)?
As to the `048, `771, and `866 patents, the Commission has determined
that Oki did not violate section 337. The Commission has determined to
review and take no position on the following findings and conclusions
in the ID, however:
(1) The finding that the Taylor reference (``A Telerobot on the
World Wide Web'') (RX-281) does not anticipate or render obvious claims
19-21 and 23 of the `048 patent;
(2) The finding that U.S. Patent Nos. 5,657,448 and 5,784,622 do
not anticipate or render obvious the asserted claims of the `048
patent;
(3) The ALJ's determination not to construe the following claim
terms in the `048 patent: ``descriptor,'' ``resource identifier
defining a resource and its location,'' ``command,'' and
``interconnected, on-line documents'';
(4) The construction of ``communications mechanism'' in claim 19 of
the `048 patent and associated findings on the issues of infringement,
domestic industry, and validity;
(5) The finding that Japanese Published Application No. JP H07-
306934 does not anticipate or render obvious the asserted claims of the
`771 patent; and
(6) The finding that claim 13 of the `771 patent is infringed.
The Commission has determined to review the ALJ's findings that the
claim terms ``scan means,'' ``print means,'' ``copy means,'' and ``test
means'' of the `866 patent, and the claim terms ``scanning means,''
``means for setting an operation code,'' and ``a code unit for setting
an operation code'' of the `771 patent do not render the asserted
claims indefinite. Upon review, the Commission has determined that the
terms at issue are not indefinite under the relevant standard set forth
in Aristocrat Technologies. v. International Game Technology, 521 F.3d
1328, 1337 (Fed. Cir. 2008). The Commission adopts the ALJ's
substantive analysis of these issues set forth in his Order No. 29 (May
4, 2010).
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(s) being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is
[[Page 73130]]
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 In the Matter of Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December
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. 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 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 ALJ's recommendation on remedy and
bonding set forth in the RD. Complainants and the IA are also requested
to submit proposed remedial orders for the Commission's consideration.
Complainants are also requested to state the date that the `690 and
`343 patents expire and the HTSUS numbers under which the accused
products are imported. The written submissions and proposed remedial
orders must be filed no later than close of business on Thursday
December 9, 2010. Reply submissions must be filed no later than the
close of business on Friday December 17, 2010. 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
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 19 CFR 210.6. 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 and 210.50 of the Commission's Rules of Practice
and Procedure (19 CFR 210.42-46 and 210.50).
Issued: November 22, 2010.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-29910 Filed 11-26-10; 8:45 am]
BILLING CODE 7020-02-P