Notice2021-15552
Certain Mobile Devices With Multifunction Emulators; Notice of Commission Determination Finding No Violation of Section 337; Termination of Investigation
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Published
July 22, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to affirm, with modifications, the Administrative Law Judge's ("ALJ") final initial determination ("ID") issued on March 16, 2021, finding no violation of section 337 in the above-referenced investigation. The investigation is terminated.
Full Text
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<title>Federal Register, Volume 86 Issue 138 (Thursday, July 22, 2021)</title>
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[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Notices]
[Pages 38762-38763]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15552]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1170]
Certain Mobile Devices With Multifunction Emulators; Notice of
Commission Determination Finding No Violation of Section 337;
Termination of Investigation
AGENCY: International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to affirm, with modifications, the
Administrative Law Judge's (``ALJ'') final initial determination
(``ID'') issued on March 16, 2021, finding no violation of section 337
in the above-referenced investigation. The investigation is terminated.
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) 205-3042. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#397c7d706a0a715c5549794c4a504d5a175e564f"><span class="__cf_email__" data-cfemail="31747578620279545d417144425845521f565e47">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. 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 August 16, the Commission instituted this
investigation based on a complaint filed by Dynamics Inc.
(``Dynamics'') of Cheswick, Pennsylvania. 84 FR 42009-10 (Aug. 16,
2019). The complaint, as supplemented, alleges violations of section
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain mobile
devices with multifunction emulators by reason of infringement of one
or more of claims 1 and 5-8 of U.S. Patent No. 8,827,153 (``the '153
patent''); claims 1-20 of U.S. Patent No. 10,032,100 (``the '100
patent''); claims 1-7, 9-13, 19, 21, and 22 of U.S. Patent No.
10,223,631 (``the '631 patent''); and claims 1-16 of U.S. Patent No.
10,255,545 (``the '545 patent''). Id. at 42010. The Commission's notice
of investigation named as respondents Samsung Electronics Co., Ltd of
Gyeonggi, Republic of Korea and Samsung Electronics America, Inc. of
Ridgefield Park, New Jersey (collectively, ``Samsung''). Id. The Office
of Unfair Import Investigations is not participating in this
investigation.
On September 3, 2019, the ALJ set a sixteen-month target date of
December 16, 2020 for completion of the investigation. Order No. 3
(Sept. 3, 2019). The Order set an evidentiary hearing for May 11-15,
2020.
On November 26, 2019, the ALJ held a Markman hearing, and on
January 31, 2020, issued Order No. 7, construing
[[Page 38763]]
certain claim terms of the asserted patents.
On May 20, 2020, the ALJ issued an initial determination granting
Dynamics' unopposed motion for partial termination of the investigation
as to claims 5, 6, and 8 of the '153 patent, claims 2, 3, 5, 7, 9-11,
13-17, 19, and 20 of the '100 patent, claims 2, 3, 5, 7, 9-13, 19, and
21 of the '631 patent, and claims 2, 4, and 6-16 of the '545 patent.
Order No. 15 (May 20, 2020), unreviewed by Notice (June 15, 2020).
Due to the COVID-19 pandemic, the ALJ amended the procedural
schedule several times. On March 12, 2020, the Commission postponed all
in-person hearings under section 337 scheduled within the next sixty
days. See 85 FR 15498 (Mar. 18, 2020). Thus, the ALJ issued Order No.
10, rescheduling the evidentiary hearing for June 22-26, 2020.
On April 6, 2020, the ALJ issued Order No. 12, resetting the target
date to February 23, 2021 due to the COVID-19 pandemic. Order No. 12
(Apr. 6, 2020), unreviewed by Notice (Apr. 24, 2020).
On May 14, 2020, the Commission extended the postponement of all
section 337 hearings. See 85 FR 30734-5 (May 20, 2020). On June 22,
2020, the Commission further extended the postponement of all in-person
section 337 hearings. 85 FR 38388-9 (June 26, 2020).
On August 11, 2020, the ALJ scheduled a virtual hearing for
November 16-20, 2020 and reset the target date for July 16, 2021. Order
No. 24 (Aug. 11, 2020), unreviewed by Notice (Sept. 8, 2020).
On March 16, 2021, the ALJ issued the final ID, finding no
violation of section 337. The ID found that the importation requirement
under 19 U.S.C. 1337(a)(1)(B) is satisfied. ID at 28. Specifically, the
ID found that ``[t]he parties stipulated to facts establishing the
importation requirement is met for both respondents'' and that
``Samsung does not dispute the Commission's jurisdiction over this
investigation or that the requisite importation or sale in connection
with importation has taken place for each Accused Product.'' Id.
Accordingly, the ID found that the Commission has jurisdiction over
this investigation and that the importation requirement has been
satisfied. Id.
With respect to the domestic industry requirement, the ID found
that Dynamics had satisfied the domestic industry requirement for the
'100 patent, but not the '153, '631, and '545 patents. ID at 183-84.
For the '153 patent, the ID found that Dynamics failed to show it
practiced any claim of the patent, but had shown it made significant
investments under section 337(a)(3)(A) and (B), 19 U.S.C.
1337(a)(3)(A)-(B). Id. at 60-64, 158-79. Likewise, as to the '631
patent, the ID found that Dynamics failed to show it practiced any
claim of the patent, but had made significant investments for purposes
of subsections (a)(3)(A) and (B). Id. at 127-31, 158-79. For the '545
patent, the ID found that Dynamics had shown it was ``in the process''
of practicing claim 1, but had not shown it was ``in the process'' of
establishing a U.S. industry. Id. at 148-52, 180-83; see also 19 U.S.C.
1337(a)(2).
With respect to infringement and validity, the ID found that
Samsung infringes claims 1 and 7 of the '153 patent and that Samsung
failed to establish that those claims are invalid. ID at 45-58, 64-69.
The ID also found that Samsung infringes claims 1, 4, 6, 12, and 18 of
the '100 patent (except for claim 6 as to certain modified products),
but that the asserted claims, except for claim 4 are invalid as
anticipated or obvious by prior art. Id. at 83-88, 96-115. The ID
further found that Samsung directly infringes claims 1, 4, 6, and 22 of
the '631 patent, but that those claims are invalid as anticipated or
obvious by prior art. Id. at 121-127, 131-140. The ID also found that
Samsung directly infringes claims 1, 3, and 5 of the '545 patent, but
that those claims are invalid for anticipation. Finally, the ID found
that Samsung failed to carry its burden with respect to various
additional affirmative defenses under 35 U.S.C. 102(f), 116
(inventorship), or 112 (written description and enablement).
The ALJ recommended that the Commission should issue a limited
exclusion order and cease and desist orders if it finds a violation but
that no bond should be imposed on covered products that may be imported
during the period of Presidential review. ID/RD at 186-91, 193.
On March 29, 2021, Dynamics filed a petition for review of the ID,
and Samsung filed a contingent petition for review. On April 8, 2021,
Dynamics and Samsung submitted responses to each other's petitions.
On May 17, 2021, the Commission determined to review the ID in
part. 86 FR 27651-53 (May 21, 2021). Specifically, the Commission
determined to review the ID with respect to the following: (1) For the
'153 patent, claim construction of the term ``analog waveform'' as well
as the related infringement and technical prong analyses and the ID's
finding that the combination of Shoemaker and Gutman fails to render
the asserted claims obvious; (2) for the '100 patent, whether Doughty
in combination with VivoTech renders obvious claim 4 and whether such
issue was waived, whether claims 4 and 6 are infringed, and whether the
domestic industry requirement is satisfied; and (3) for the '545
patent, the ID's domestic industry findings. Id. at 27652. In
connection with its review, the Commission requested that the parties
brief their positions on certain issues.
Having examined the record of this investigation, including the ID,
the parties' submissions and the responses thereto, the Commission has
determined to affirm, with modifications, the ID's finding of no
violation of section 337 in this investigation. With respect to the
issues under review, for the '153 patent, the Commission has determined
to (1) adopt Samsung's proposed construction of the claim limitation
``analog waveform'' to mean ``a wave shape whose amplitude changes in a
continuous fashion,'' but clarify that the construction encompasses so-
called real-world square waves; (2) affirm the ID's finding that the
accused Samsung Products infringe the asserted claims; (3) affirm the
ID's finding that Dynamics failed to adduce sufficient evidence to
establish that its DI products practice any claims of the patent; and
(4) reverse the ID's finding that the combination of Shoemaker and
Gutman fails to render the asserted claims obvious. For the '100
patent, the Commission has determined to (1) reverse the finding that
Samsung failed to show that Doughty in combination with VivoTech
renders claim 4 obvious; (2) clarify that claims 4 and 6 are infringed;
and (3) find the domestic industry requirement not met because the
domestic industry claim has been found invalid. For the '545 patent,
the Commission has determined to take no position on the ID's domestic
industry findings related to a domestic industry in the process of
being established.
Accordingly, the Commission has determined to terminate the
investigation with a finding of no violation of section 337.
The Commission's vote on this determination took place on July 16,
2021.
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
210).
By order of the Commission.
Issued: July 16, 2021.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2021-15552 Filed 7-21-21; 8:45 am]
BILLING CODE 7020-02-P
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