[Federal Register Volume 76, Number 62 (Thursday, March 31, 2011)]
[Notices]
[Pages 17965-17966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7553]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-703]
In the Matter of Certain Mobile Telephones and Wireless
Communication Devices Featuring Digital Cameras, and Components Thereof
Notice of Commission Determination To Review A Final Determination of
No 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 the final initial determination
(``ID'') issued by the presiding administrative law judge (``ALJ'') on
January 24, 2011, finding no violation of section 337 in the above-
captioned investigation.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-2532. 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
February 23, 2010, based upon a complaint filed on behalf of Eastman
Kodak Company of Rochester, New York (``Kodak'') on January 14, 2010,
and supplemented on February 4, 2010. 75 FR 8112. 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 mobile
telephones and wireless communication devices featuring digital
cameras, and components thereof, that infringe certain claims of U.S.
Patent No. 6,292,218 (``the '218 patent''). The complaint named as
respondents Apple, Inc., of Cupertino, Calif. (``Apple''); Research in
Motion, Ltd., of Ontario, Canada; and Research in Motion Corp., of
Irving, Texas (collectively, ``RIM''). Claim 15 is now the only claim
in issue.
On January 24, 2011, the ALJ issued a final ID finding no violation
of section 337. The ALJ found that none of the accused Apple and RIM
products infringe asserted claim 15 of the '218 patent. In addition,
the ALJ found that claim 15 is invalid for obviousness under 35 U.S.C.
103. The ALJ found, however, that the domestic industry requirement is
satisfied with respect to the asserted patent. With respect to remedy,
the ALJ recommended that if the Commission disagrees with the finding
of no violation, the Commission should issue a limited exclusion order
and cease and desist orders directed to Apple and RIM. In addition, the
ALJ recommended, in the event that a violation is found, that no bond
be required during the Presidential review period.
On February 7, 2011, Kodak, Apple, RIM, and the Commission
investigative attorney each filed a petition for review of the ALJ's
final ID. The parties each filed a response submission on February 15,
2011.
Having examined the record of this investigation, including the
ALJ's final ID and the submissions of the parties, the Commission has
determined to review the final ID in its entirety.
The parties should brief their positions on the issues on review
with
[[Page 17966]]
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:
1. Kodak has argued in its petition for review that the ALJ made a
ruling on obviousness with respect to prior art combinations that Kodak
did not have an opportunity to address. The parties should address
whether the ALJ permissibly relied on these prior art combinations and
whether these combinations render claim 15 invalid for obviousness.
2. Kodak has argued in its petition for review that the ALJ did not
address the claim constructions of the presiding ALJ in Inv. No. 337-
TA-663. The parties should address whether the ALJ should have
considered the claim constructions in Inv. No. 337-TA-663 and what
effect those constructions should have in this case.
3. Kodak has argued in its petition for review that the ALJ did not
address the reexaminations at the U.S. Patent and Trademark Office of
the '218 patent. The parties should address whether the ALJ should have
considered the reexaminations and what effect those reexaminations
should have in this case.
4. Please explain whether U.S. Patent No. 5,493,335 is prior art,
and if so, on what statutory basis.
5. What is the meaning of ``color pixel value'' in part (b) of
claim 15? Is it ``the value of a color pixel''? In your answer, address
the patent's discussion of each red, green, or blue element of a
display being a ``pixel'' (column 8 lines 17-28).
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 a
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 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 United States
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 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 also requested to state the
date that the patent expires 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 Friday
April 8, 2011. Reply submissions must be filed no later than the close
of business on Friday April 15, 2011. The written submissions must be
no longer than 100 pages and the reply submissions must be no longer
than 50 pages. 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 non-confidential 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: March 25, 2011.
By order of the Commission.
James R. Holbein,
Acting Secretary to the Commission.
[FR Doc. 2011-7553 Filed 3-30-11; 8:45 am]
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