Notice2022-20959
Certain Wearable Electronic Devices With ECG Functionality and Components Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a 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
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Published
September 28, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review in part a final initial determination ("ID") of the presiding administrative law judge ("ALJ"), finding a violation of section 337 as to two of the three asserted patents. The Commission requests written submissions from the parties on the issues under review and 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.
Full Text
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<title>Federal Register, Volume 87 Issue 187 (Wednesday, September 28, 2022)</title>
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[Federal Register Volume 87, Number 187 (Wednesday, September 28, 2022)]
[Notices]
[Pages 58819-58821]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20959]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1266]
Certain Wearable Electronic Devices With ECG Functionality and
Components Thereof; Notice of a Commission Determination To Review in
Part a Final Initial Determination Finding a 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 in part a final
initial determination (``ID'') of the presiding administrative law
judge (``ALJ''), finding a violation of section 337 as to two of the
three asserted patents. The Commission requests written submissions
from the parties on the issues under review and 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.
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#efaaaba6bcdca78a839faf9a9c869b8cc1888099"><span class="__cf_email__" data-cfemail="692c2d203a5a210c0519291c1a001d0a470e061f">[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 May 26, 2021, the Commission instituted
this investigation based on a complaint filed by AliveCor, Inc. of
Mountain View, California (``AliveCor''). 86 FR 28382 (May 26, 2021).
The complaint alleged violations of 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 wearable
electronic devices with ECG functionality and components thereof by
reason of infringement of one or more of claims 1-30 of U.S. Patent No.
10,595,731 (``the '731 patent''); claims 1-23 of U.S. Patent No.
10,638,941 (``the '941 patent''); and claims 1-4, 6-14, 16-20 of U.S.
Patent No. 9,572,499 (``the '499 patent''). Id. The Commission's notice
of investigation named Apple Inc. of Cupertino, California (``Apple'')
as the sole respondent. The Office of Unfair Import Investigations
(``OUII'') is named as a party in this investigation. Id.
On February 23, 2022, the ALJ issued an initial determination
granting AliveCor's motion to terminate the investigation as to (1)
claims 1-4, 6-14, and 18-20 of the '499 patent; (2) claims 2, 4, 6, 7,
11, 13, 14, and 17-30 of the '731 patent; and (3) claims 1-11, 14, 15,
17, and 18 of the '941 patent based upon withdrawal of allegations from
the complaint as to those claims. Order No. 16 (Feb. 23, 2022),
unreviewed by Notice (Mar. 18, 2022).
On June 27, 2022, the ALJ issued the final initial determination
(``ID'') finding a violation of section 337 as to the '941 and '731
patents, and no violation of section 337 as to the '499 patent.\1\ The
ID found that the parties do not contest personal jurisdiction, and
that the Commission has in rem jurisdiction over the accused products.
ID at 18. The ID further found that the importation requirement under
19 U.S.C. 1337(a)(1)(B) is satisfied. Id. (citing CX-0904C (Apple
stipulating that it imports the accused products into the United
States)). Regarding the '941 patent, the ID found that AliveCor has
proven infringement of the asserted claims, claims 12, 13, 19, and 20-
23, and that Apple failed to show that any of the asserted claims are
invalid. Id. at 30-45, 60-98. For the '731 patent, the ID found that
AliveCor has proven infringement of the asserted claims, claims 1, 3,
5, 8-10, 12, 15, and 16, but that Apple has proven that claims 1, 8,
12, and 16 are invalid for obviousness. Id. at 105-108, 113-127. For
the '499 patent, the ID found that AliveCor failed to prove
infringement of the asserted claims, claims 16 and 17, and that claim
17 is invalid for lack of patentable subject matter under 35 U.S.C.
101. Id. at 129-138, 140-152. Finally, the ID found that AliveCor has
proven the existence of a domestic industry that practices the asserted
patents as required by 19 U.S.C. 1337(a)(2). Id. at 152-183. The ID
included the ALJ's recommended determination on remedy and bonding
(``RD''). The RD recommended that, should the Commission find a
violation, issuance of a limited exclusion order and cease and desist
orders would be appropriate. ID/RD at 190-193. The RD also recommended
imposing no bond for covered products imported during the period of
Presidential review. ID at 193-95.
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\1\ The ALJ issued a corrected final ID on July 26, 2022,
correcting the table of contents.
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On July 11, 2022, Apple filed a petition for review of the ID, and
AliveCor filed a combined petition and contingent petition for review
of the ID. On July 19, 2022, the private parties and OUII's
investigative attorney filed responses to the petitions.
Having reviewed the record of the investigation, including the
final ID, the parties' submissions to the ALJ, the petitions for
review, and the responses thereto, the Commission has determined to
review the ID in part. Specifically, the Commission has determined to
review the final ID's invalidity findings, including patent eligibility
under 35 U.S.C. 101 and obviousness under 35 U.S.C. 103, and the
economic prong of the domestic industry requirement.
In connection with its review, the Commission requests responses
from the parties to the following questions. The parties are requested
to brief their positions with reference to the applicable law and the
existing evidentiary record.
(1) Discuss whether the record evidence of ``industry praise'' and
``copying'' is sufficient to establish the requisite objective indicia
of non-obviousness. See Graham v. John Deere Co. of Kansas City, 383
U.S. 1, 17-18 (1966).
(2) Please explain whether and how the Complainant's investments
credited by the ID under subsection 337(a)(3)(B) are quantitatively and
qualitatively significant.
(3) Please explain whether and how the Complainant's employment of
labor in research and development in the exploitation of the patents
under subsection 337(a)(3)(C) are quantitatively and qualitatively
substantial. Please state whether the R&D contract labor amount
credited by the ID under subsection 337(a)(3)(C) includes foreign
contract labor and, if
[[Page 58820]]
so, please quantify such included amounts.
(4) What is the factual and legal basis for crediting Complainant's
investments in the KBP and PRD products toward satisfaction of the
domestic industry requirement under subsection (C)?
The parties are invited to brief only these discrete questions. 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 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 (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. In particular, the Commission requests that the
parties, interested government agencies, and interested persons respond
to the following:
(1) Please provide information and argument that responds to the
statements on the public interest submitted on the public record by the
parties and the various third parties.
(2) Please provide data and factual information that specifically
addresses whether and to what extent each of the four public interest
factors would be adversely impacted by the remedial orders recommended
in the RD, including details regarding the extent to which alternatives
to the infringing products would be available to replace the infringing
products and address the public health and welfare concerns raised.
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 questions 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 and to provide
factual information and data requested above with respect to the public
interest, including responding to the submissions of the parties and
third parties that are in the record of this investigation. Such
submissions should address the recommended determination by the ALJ on
remedy 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 October 6, 2022. Reply submissions must be filed no later than the
close of business on October 13, 2022. No further submissions on these
issues will be permitted unless otherwise ordered by the Commission.
Opening submissions are limited to 75 pages. Reply submissions are
limited to 50 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-1266) 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. Any non-
party wishing to submit comments containing confidential information
must serve those comments on the parties to the investigation pursuant
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the
Commission and served on any parties to the investigation within two
business days of 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, 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 has determined to extend the target date to December
12, 2022.
The Commission vote for this determination took place on September
[[Page 58821]]
22, 2022. 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: September 22, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-20959 Filed 9-27-22; 8:45 am]
BILLING CODE 7020-02-P
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