Notice2023-00907
Certain Video Security Equipment and Systems, Related Software, Components Thereof, and Products Containing Same; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of Target Date
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Published
January 19, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in part a final initial determination ("FID") issued by the presiding administrative law judge ("ALJ"), finding a violation of section 337 of the Tariff Act of 1930, as amended, in the above-captioned investigation. The Commission requests briefing from the parties on certain issues under review, as indicated in this notice. The Commission also requests written submissions from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding. The Commission has further determined to extend the target date in the above-captioned investigation to March 23, 2023.
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<title>Federal Register, Volume 88 Issue 12 (Thursday, January 19, 2023)</title>
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[Federal Register Volume 88, Number 12 (Thursday, January 19, 2023)]
[Notices]
[Pages 3435-3437]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00907]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1281]
Certain Video Security Equipment and Systems, Related Software,
Components Thereof, and Products Containing Same; Notice of a
Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions on Issues Under Review and on Remedy, the Public Interest,
and Bonding; Extension of 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 has determined to review in part a final initial
determination (``FID'') issued by the presiding administrative law
judge (``ALJ''), finding a violation of section 337 of the Tariff Act
of 1930, as amended, in the above-captioned investigation. The
Commission requests briefing from the parties on certain issues under
review, as indicated in this notice. The Commission also requests
written submissions from the parties, interested government agencies,
and interested persons on the issues of remedy, the public interest,
and bonding. The Commission has further determined to extend the target
date in the above-captioned investigation to March 23, 2023.
FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3228. 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#30757479630378555c407045435944531e575f46"><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 September 14, 2021, the Commission
instituted this investigation under section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on a
complaint filed by Motorola Solutions, Inc. of Chicago, Illinois
(``Motorola Solutions''); Avigilon Corporation of British Columbia,
Canada; Avigilon Fortress Corporation of British Columbia, Canada;
Avigilon Patent Holding 1 Corporation of British Columbia, Canada
(``Avigilon Patent Holding''); and Avigilon Technologies Corporation of
British Columbia, Canada (collectively, ``Complainants''). See 86 FR
51182-83 (Sept. 14, 2021). The complaint alleges a violation of section
337 based upon the importation into the United States, sale for
importation, or sale after importation into the United States of
certain video security equipment and systems, related software,
components thereof, and products containing same by reason of
infringement of certain claims of U.S. Patent Nos. 7,868,912 (``the
'912 patent''); 10,726,312 (``the '312 patent''); and 8,508,607 (``the
'607 patent'') (collectively, ``the Asserted Patents''). Id. The
complaint further alleges that a domestic industry exists. Id. The
notice of investigation (``NOI'') names Verkada Inc. of San Mateo,
California as the only respondent. Id.
The complaint and NOI were previously amended to reflect the
transfer of all right, title, and interest in: (1) the '312 patent from
Avigilon Corporation to Motorola Solutions; (2) the '912 patent from
Avigilon Fortress Corporation to Motorola Solutions; and (3) the '607
patent from Avigilon Patent Holding to Motorola Solutions. Order No. 7
(Dec. 28, 2021), unreviewed by 87 FR 4658-59 (Jan. 28, 2022). The
complaint and NOI were further amended to add a new licensee, Avigilon
USA Corporation of Dallas, Texas, as an additional complainant. Id.
The Commission previously terminated the investigation as to claims
4 and 10-12 of the '312 patent based on Complainants' partial
withdrawal of the complaint. Order No. 58 (June 14, 2022), unreviewed
by Comm'n Notice (June 30, 2022). The Commission also previously
terminated the investigation as to claims 6, 15, 25, and 26 of the '607
patent based on Complainants' partial withdrawal of the complaint.
Order No. 59 (July 13, 2022), unreviewed by Comm'n Notice (Aug. 4,
2022).
On October 24, 2022, the presiding ALJ issued the FID, finding that
a
[[Page 3436]]
violation of section 337 has occurred in the importation into the
United States, the sale for importation, or the sale within the United
States after importation, of certain video security equipment and
systems, related software, components thereof, and products containing
same that infringe claims 6-11 of the '912 patent. The FID further
finds no violation of section 337 with respect to the remaining
asserted claims of the '912 patent, or as to the '312 patent or the
'607 patent. The FID includes the ALJ's recommended determination on
remedy, the public interest, and bonding should the Commission find a
violation of section 337.
On November 7, 2022, Complainants filed a contingent petition
requesting review of the FID's findings of non-infringement as to
asserted claims 1-4, 12-22, 26-28, 30 of the '912 patent, the asserted
claims of the '312 patent, and the asserted claims of the '607 patent,
as well as Verkada's proposed redesigns. That same day, respondent
Verkada filed a combined petition and contingent petition requesting
review of the FID's findings that the accused products include an
imported ``article'' that infringes asserted claims 6-11 of the '912
patent, certain accused products infringe asserted claims 6-11 of the
'912 patent, and asserted claims 6-11 of the '912 patent are not
anticipated or rendered obvious by the prior art. Verkada also seeks
contingent review of the FID's findings that the accused products
include an imported ``article'' that infringes claims 24-25, 27-28, 32-
33, and 35-36 of the '912 patent; additional non-infringement bases for
the asserted claims of the '912 patent; claims 1-4 and 12-36 of the
'912 patent are not anticipated or rendered obvious by the asserted
prior art; claims 1, 5, 6, 9, 13, and 16 of the '312 patent are not
anticipated or rendered obvious by the asserted prior art; additional
non-infringement bases for the asserted claims of the '607 patent; and
claims 1-4, 7, 10-13, 16, 19-21, and 29 of the '607 patent are not
rendered obvious by the asserted prior art. On November 15, 2022,
Complainants and Verkada filed their respective responses to the
petitions for review.
On November 23, 2022, Complainants and Verkada each filed a
submission on the public interest pursuant to Commission Rule
210.50(a)(4) (19 CFR 210.50(a)(4)). No submissions were received in
response to the Commission notice seeking public interest submissions.
87 FR 65827-28 (Nov. 1, 2022).
Having reviewed the record of the investigation, including the FID,
the parties' submissions to the ALJ, the petitions for review, and the
responses thereto, the Commission has determined to review the FID in
part. Specifically, the Commission has determined to review: (1) the
FID's findings regarding ``subject matter jurisdiction''; (2) the FID's
findings that certain accused products infringe claims 6-11 of the '912
patent and finding a violation of section 337 as to those claims; and
(3) the FID's finding that asserted claims 6-11 of the '912 patent are
not invalid as anticipated or obvious. The Commission has determined
not to review any other findings presented in the FID.
The Commission has also determined to extend the target date for
completing this investigation to March 23, 2023.
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.
1. Please address whether, under the framework set forth by
Commissioner Kearns in his Additional Views in Certain High-Density
Fiber Optic Equipment and Components Thereof, Inv. No. 337-TA-1194,
Comm'n Op. at 98-104 (Aug. 3, 2021), Verkada's imported cameras should
be considered ``articles that infringe'' for purposes of finding a
violation of section 337 by Verkada's direct infringement of claims 6-
11 of the `912 patent.
2. Regarding claims 6-11 of the '912 patent, given the uncontested
claim constructions and differences between claim 1 and claims 6-11,
please address whether the existing evidentiary record supports the
FID's finding that ``Event Detection and Analysis from Video Streams''
by Medioni et al., published in the IEEE Transactions on Pattern
Analysis and Machine Intelligence, Vol. 23, No. 8 in August 2001 (RX-
302) does not disclose either (1) a processor that receives detected/
determined attributes over a communications channel, or (2) attributes
which are independent of events. Please also address whether the
differences between claim 1 and claims 6-11 affect the anticipation
analysis, and if so, please explain how.
3. Please provide a status update regarding which of the
adjudicated design(s) and/or redesign(s) are currently implemented in
the accused products that are being sold or offered for sale by
Verkada. In addition, please address whether, if the Commission finds a
violation as to only the accused products that the FID finds infringing
with respect to claims 6-11 of the `912 patent, a consent order could
resolve the parties' remaining issues with respect to that patent.
The parties are invited to brief only these discrete issues for the
specific claims identified. 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) 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 (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
a 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.
[[Page 3437]]
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.
In their initial submission, Complainants are also requested to
identify the remedy sought and Complainants are requested to submit
proposed remedial orders for the Commission's consideration.
Complainants are further requested to state the dates that the Asserted
Patents expire, 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 27,
2023. Reply submissions must be filed no later than the close of
business on February 3, 2023. No further submissions on these issues
will be permitted unless otherwise ordered by the Commission. 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-1281) 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 vote for this determination took place on January
12, 2023.
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: January 12, 2023.
Katherine M. Hiner,
Acting Secretary to the Commission.
[FR Doc. 2023-00907 Filed 1-18-23; 8:45 am]
BILLING CODE 7020-02-P
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