Notice2021-25761
Certain Audio Players and Controllers, Components Thereof, and Products Containing the Same; Commission Determination To Review In Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding; Extension of the Target Date
Primary source
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Published
November 26, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that, on August 13, 2021, the presiding chief administrative law judge (``CALJ'') issued a combined final initial determination (``ID'') finding a violation of section 337 and a recommended determination (``RD'') on remedy and bonding in the above- captioned investigation. The Commission has determined to review the final ID in part. The Commission requests briefing from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding. The Commission has also determined to extend the target date for completion of the investigation to January 6, 2022.
Full Text
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<title>Federal Register, Volume 86 Issue 225 (Friday, November 26, 2021)</title>
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[Federal Register Volume 86, Number 225 (Friday, November 26, 2021)]
[Notices]
[Pages 67491-67493]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25761]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1191]
Certain Audio Players and Controllers, Components Thereof, and
Products Containing the Same; Commission Determination To Review In
Part a Final Initial Determination Finding a Violation of Section 337;
Schedule for Filing Written Submissions on Remedy, the Public Interest,
and Bonding; Extension of the Target Date
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that, on August 13, 2021, the presiding
chief administrative law judge (``CALJ'') issued a combined final
initial determination (``ID'') finding a violation of section 337 and a
recommended determination (``RD'') on remedy and bonding in the above-
captioned investigation. The Commission has determined to review the
final ID in part. The Commission requests briefing from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding. The Commission has also
determined to extend the target date for completion of the
investigation to January 6, 2022.
FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3179. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS)
[[Page 67492]]
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#b3f6f7fae080fbd6dfc3f3c6c0dac7d09dd4dcc5"><span class="__cf_email__" data-cfemail="2f6a6b667c1c674a435f6f5a5c465b4c01484059">[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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On February 11, 2020, the Commission
instituted this investigation based on a complaint filed by Sonos, Inc.
(``Sonos'') of Santa Barbara, California. 85 FR 7783 (Feb. 11, 2020).
The complaint alleges violations of section 337 of the Tariff Act of
1930, as amended (19 U.S.C. 1337) (``section 337''), based on the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain audio
players and controllers, components thereof, and products containing
the same by reason of infringement of certain claims of U.S. Patent
Nos. 9,195,258 (``the '258 patent''); 10,209,953 (``the '953 patent'');
8,588,949 (``the '949 patent''); 9,219,959 (``the '959 patent''); and
10,439,896 (``the '896 patent''). Id. The complaint further alleges
that a domestic industry exists. Id. The notice of investigation named
as respondents Google LLC (``Google'') and Alphabet Inc.
(``Alphabet''), both of Mountain View, California. Id. The Office of
Unfair Import Investigations (``OUII'') is also named as a party. Id.
On September 21, 2020, the Commission terminated the investigation
as to Alphabet based on withdrawal of the allegations in the complaint
directed to Alphabet. Order No. 18 (Sept. 1, 2020), unreviewed by
Comm'n Notice (Sept. 21, 2020). On November 24, 2020, the Commission
determined that the importation requirement has been satisfied. Order
No. 27 (Oct. 27, 2020), unreviewed by Comm'n Notice (Nov. 24, 2020). On
February 2, 2021, the Commission determined that the technical prong of
the domestic industry requirement has been satisfied as to the '949
patent. Order No. 32 (Jan. 4, 2021), unreviewed by Comm'n Notice (Feb.
2, 2021). On February 16, 2021, the Commission determined that the
economic prong of the domestic industry requirement has been satisfied
as to all asserted patents. Order No. 35 (Jan. 14, 2021), reviewed and
aff'd by Comm'n Notice (Feb. 16, 2021).
On March 12, 2021, the Commission partially terminated the
investigation based on withdrawal of the allegations in the complaint
as to the following asserted claims: Claims 22 and 23 of the '258
patent; claims 12 and 13 of the '953 patent; claims 5, 9, 29, and 35 of
the '959 patent; and claim 3 of the '896 patent. Order No. 58 (Feb. 23,
2021), unreviewed by Comm'n Notice (Mar. 12, 2021).
The following claims remain at issue: Claims 17, 21, 24, and 26 of
the '258 patent; claims 7, 14, and 22-24 of the '953 patent; claim 10
of the '959 patent; Claims 1, 2, 4, and 5 of the '949 patent; and
claims 1, 5, 6, and 12 of the '896 patent.
On August 13, 2021, the CALJ issued the subject final ID on
violation and RD on remedy and bonding. The ID finds violations of
section 337 with respect to certain claims of each asserted patent. The
RD recommends that, should the Commission determine that violations of
section 337 occurred, then the Commission should: (i) Issue a limited
exclusion order against Google's infringing products; (ii) issue a
cease and desist order against Google; and (iii) set a bond of 100
percent for any importations of infringing products during the period
of Presidential review.
On August 27, 2021, Sonos and Google each filed a petition for
review of certain findings in the final ID. On September 7, 2021, the
private parties filed responses to each other's petitions, and OUII
filed a combined response to both petitions.
On September 13, 2021, the Commission received eight submissions on
the public interest in response to the Commission's Federal Register
notice. See 86 FR 46715 (Aug. 19, 2021). The Commission did not receive
any submissions on the public interest from the parties pursuant to
Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)).
The Commission has determined to review the ID in part with respect
to the ID's analysis of whether the products accused of infringing the
'258 and '953 patent are articles that infringe at the time of
importation. The Commission has also determined to correct two
typographical errors on pages 24 and 84 of the ID. The Commission has
determined not to review the remaining findings in the ID.
The Commission has also determined to extend the target date for
completion of the investigation to January 6, 2022.
In connection with the final disposition of this investigation, the
statute authorizes issuance of: (1) An exclusion order that could
result in the exclusion of the subject articles from entry into the
United States, and/or (2) a cease and desist order 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 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 (December 1994).
The statute requires the Commission to consider the effects of any
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or cease and desist order 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,
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, interested government agencies,
and any other interested parties are invited to file written
submissions on the issues of remedy, the public interest, and bonding.
Such submissions should include views on the recommended determination
by the CALJ on remedy and bonding.
In their initial written submissions, Sonos and OUII are requested
to submit proposed remedial orders for the Commission's consideration.
Sonos is further requested to identify the dates the Asserted Patents
expire, to provide the HTSUS subheadings under which
[[Page 67493]]
the subject articles are imported, and to supply identification
information for all known importers of the subject articles. Sonos is
additionally requested to identify and explain, from the record,
articles that are ``components of'' and ``products containing'' the
subject articles, and thus covered by the proposed remedial orders, if
imported separately from the subject articles.
Initial written submissions, including proposed remedial orders,
must be filed no later than close of business on December 2, 2021.
Reply submissions must be filed no later than the close of business on
December 10, 2021. 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-1191) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>). 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. A redacted
non-confidential version of the document must also be filed
simultaneously with 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,\1\ solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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The Commission vote for this determination took place on November
19, 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
part 210).
By order of the Commission.
Issued: November 19, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-25761 Filed 11-24-21; 8:45 am]
BILLING CODE 7020-02-P
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