Notice2021-27945
Certain Digital Video-Capable Devices and Components Thereof; Commission Determination To Review a Final Initial Determination Finding No Violation of Section 337; Request for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target Date
Primary source
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Published
December 27, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review a final initial determination ("ID") of the presiding administrative law judge ("ALJ"). The Commission requests written submissions from the parties on the issues under review and submissions from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below. The Commission also extends the target date for completion of the investigation until March 23, 2022.
Full Text
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<title>Federal Register, Volume 86 Issue 245 (Monday, December 27, 2021)</title>
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[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Notices]
[Pages 73316-73318]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27945]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1224]
Certain Digital Video-Capable Devices and Components Thereof;
Commission Determination To Review a Final Initial Determination
Finding No Violation of Section 337; Request for Written Submissions on
the Issues Under Review and 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 the U.S. International Trade
Commission (``Commission'') has determined to review a final initial
determination (``ID'') of the presiding administrative law judge
(``ALJ''). The Commission requests written submissions from the parties
on the issues under review and submissions from the parties, interested
government agencies, and other interested persons on the issues of
remedy, the public interest, and bonding, under the schedule set forth
below. The Commission also extends the target date for completion of
the investigation until March 23, 2022.
FOR FURTHER INFORMATION CONTACT: Amanda P. Fisherow, Esq., Office of
the General Counsel, U.S. International Trade Commission, 500 E Street
SW, Washington, DC 20436, telephone (202) 205-2737. 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#a4e1e0edf797ecc1c8d4e4d1d7cdd0c78ac3cbd2"><span class="__cf_email__" data-cfemail="6d2829243e5e2508011d2d181e04190e430a021b">[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: The Commission instituted the present
investigation on October 22, 2020, based on a complaint and supplement
thereto filed by Koninklijke Philips N.V. of Eindhoven, Netherlands and
Philips North America LLC of Cambridge, Massachusetts (collectively,
``Philips''). 85 FR 67373-74 (Oct. 22, 2020). The complaint, as
supplemented, alleged violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, based upon the importation, sale for
importation, and sale in the United States after importation of certain
digital video-capable devices and components thereof by reason of
infringement of certain claims of U.S. Patent Nos. 9,436,809 (``the
'809 patent''); 9,590,977 (``the '977 patent''); 10,091,186 (``the '186
patent''); and 10,298,564 (``the '564 patent''). Id. at 67373. The
complaint further alleged that an industry in the United States exists
or is in the process of being established, as required by section 337.
Id. The notice of investigation named the following respondents: Dell
Technologies Inc. of Round Rock, Texas and Dell Inc. of Round Rock,
Texas (together ``Dell''); Hisense Co. Ltd. of Qingdao, China, Hisense
Visual Technology Co., Ltd. of Qingdao, China, Hisense Electronics
Manufacturing Company of America Corporation of Suwanee, Georgia,
Hisense USA Corporation of Suwanee, Georgia, Hisense Import & Export
Co. Ltd. of Qingdao, China, Hisense International Co., Ltd. of Qingdao,
China, Hisense International (HK) Co., Ltd. of Sheung Wan, Hong Kong
(SAR), and Hisense International (Hong Kong) America Investment Co.,
Ltd. of Sheung Wan, Hong Kong (SAR) (together, ``Hisense''); HP, Inc.
of Palo Alto, California (``HP''); Lenovo Group Ltd. of Quarry Bay,
Hong Kong (SAR) and Lenovo (United States), Inc. of Morrisville, North
Carolina (together, ``Lenovo''); LG Electronics, Inc. of Seoul,
Republic of Korea and LG Electronics USA, Inc. of Englewood Cliffs, New
Jersey; TCL Industries Holdings Co., Ltd., of Guangdong, China, TCL
Electronics Holdings Ltd. of Hong Kong Science Park, Hong Kong (SAR),
TCL King Electrical Appliances (Huizhou) Co. Ltd. of Huizhou, China,
TTE Technology, Inc. of Corona, California, TCL Moka International Ltd.
of Sha Tin, Hong Kong, TCL Moka Manufacturing S.A. de C.V. of Tijuana,
Mexico, TCL Smart Device (Vietnam) Company Ltd. of Binh Duong, Vietnam;
MediaTek Inc. of Hsinchu, Taiwan and MediaTek USA Inc. of San Jose,
California; Realtek Semiconductor Corp. of Hsinchu, Tiawan
(``Realtek''); and Intel Corporation of Santa Clara, California
(``Intel''). Id. at 67374. The Office of Unfair Import Investigations
(``OUII'') is participating in the investigation. Id.
During the course of the investigation, Philips moved to terminate
the investigation as to various claims, patents, and respondents. See
Order No. 19, unreviewed by Comm'n Notice (Apr. 15, 2021), Order No.
21, unreviewed by Comm'n Notice (May 12, 2021), Order No. 26,
unreviewed by Comm'n Notice (Jun 21, 2021), Order 32, unreviewed by
Comm'n Notice (July 26, 2021), Order No. 40, unreviewed by Comm'n
Notice (Aug. 2, 2021), and Order No. 46, unreviewed by Comm'n Notice
(Aug. 10, 2021). The Respondents remaining in the investigation are
Dell, Hisense, HP, Lenovo, TCL, Realtek, and Intel (together, ``the
Respondents''). The remaining asserted patent claims are: claims 1, 9,
11, 12, and 14 of the '186 patent; and claims 1, 18, 19, 21, and 25 of
the '564 patent.
On October 21, 2021, the ALJ issued the subject ID. On November 2,
2021, Philips and OUII each filed petitions for review. Also, on
November 2, 2021, Respondents Intel, Dell, and Lenovo filed a
contingent petition for review and Respondents HP, Realtek, Dell,
Lenovo, Hisense, and TCL (``Receiver Respondents'') filed a separate
contingent petition for review. On November 10, 2021, Philips, OUII,
and the Respondents each filed replies.
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, and the petitions for
review and replies, the Commission has determined to review the ID in
part. Specifically, the Commission has determined to review the ID's
findings on claim construction, infringement, validity, and domestic
industry for both of the '186 and '564 patents.
In connection with its review, the Commission requests responses to
the following questions. The parties are requested to brief their
positions with reference to the applicable law and the existing
evidentiary record.
[[Page 73317]]
(1) Please discuss whether the evidence establishes that the
claimed ``certificate'' of the accused products and domestic
industry products indicates that the second device is compliant with
at least one compliance rule. In your discussion, please address the
specific compliance rule(s) at issue and specifically how the
certificate indicates that the second device is compliant with the
compliance rule(s). Please address the evidence in the contexts of
both the '186 and '564 patents.
(2) Does any of the information contained within the alleged
``certificate'' of the accused products or domestic industry
products [[ ]]? See, e.g., ID at 73-75.
(3) Should ``when,'' as recited in the asserted claims, be
interpreted to mean ``when and only when''? See Complainants'
Petition for Review at 23. Did Complainants waive their argument
that the accused products infringe if ``when'' is construed to mean
``when and only when''? Please address the intrinsic record in your
response and any relevant Federal Circuit case law.
(4) Discuss the capabilities of the accused receiver products
(and the domestic industry products, if relevant) and whether they
have instructions arranged to receive protected content only when
the claimed conditions are satisfied (i.e., [[ ]]).
(5) Please address whether the ``predetermined time''
limitations of the asserted claims are met if ``predetermined time''
is construed as ``a time interval selected to ensure that the first
and second communication devices are sufficiently near one another
to permit access to the protected content.'' See, e.g., Receiver
Respondents Petition for Review at 18. Please address this question
both for infringement and the technical prong of domestic industry.
(6) Please discuss whether the Commission should apply the
America Invents Act (``AIA'') or pre-AIA statute in evaluating
Respondents' validity challenges and in determining the proper
priority date.
(7) If the Commission determines that the ID, in addressing
domestic industry, properly considered labor investments only for
2020 (see ID at 143-149):
a. What is the proper allocation percentage that should be
applied? Please support your argument with citations to record
evidence.
b. Can data on one year of investments support the significance
of an industry that is already established? Please support your
argument with reference to the statute and any relevant Commission
and judicial precedent.
The parties are invited to brief only the discrete issues requested
above. The parties are not to brief other issues on review, which are
adequately presented in the parties' existing filings.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States; and/or (2) cease and desist orders that could result
in the respondents 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 (Dec. 1994).
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order and
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,
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 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, the public interest, and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested to provide the HTSUS subheadings under
which the accused products are imported, and to supply the
identification information for all known importers of the products at
issue in this investigation. The initial written submissions and
proposed remedial orders must be filed no later than close of business
on January 7, 2022. Reply submissions must be filed no later than the
close of business on January 14, 2022. Opening submissions are limited
to 60 pages. Reply submissions are limited to 35 pages. 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 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1224) 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
[[Page 73318]]
personnel, solely for cybersecurity purposes. All contract personnel
will sign appropriate nondisclosure agreements. All nonconfidential
written submissions will be available for public inspection on EDIS.
The Commission extends the target date for completion of the
investigation to March 23, 2022.
The Commission vote for this determination took place on December
20, 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: December 20, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-27945 Filed 12-23-21; 8:45 am]
BILLING CODE 7020-02-P
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