Notice2023-27050
Certain Computer Network Security Equipment and Systems, Related Software, Components Thereof, and Products Containing Same; Notice of Commission Determination To Review in Part and, on Review, To Affirm a Final Initial Determination Finding No Violation of Section 337; Termination of the Investigation
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Published
December 11, 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 ("Final ID") issued by the presiding administrative law judge ("ALJ") finding no violation of section 337 of the Tariff Act of 1930, with respect to U.S. Patent Nos. 9,264,370 ("the '370 patent"); 10,193,917 ("the '917 patent"); and 10,284,526 ("the '526 patent"). On review, the Commission has determined to take no position regarding whether the economic prong of the domestic industry requirement is satisfied, and to affirm under modified reasoning the Final ID's finding of no violation of section 337 with respect to those patents. This investigation is terminated.
Full Text
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<title>Federal Register, Volume 88 Issue 236 (Monday, December 11, 2023)</title>
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[Federal Register Volume 88, Number 236 (Monday, December 11, 2023)]
[Notices]
[Pages 85913-85914]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27050]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1314]
Certain Computer Network Security Equipment and Systems, Related
Software, Components Thereof, and Products Containing Same; Notice of
Commission Determination To Review in Part and, on Review, To Affirm a
Final Initial Determination Finding No Violation of Section 337;
Termination of the Investigation
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 (``Final ID'') issued by the presiding administrative law
judge (``ALJ'') finding no violation of section 337 of the Tariff Act
of 1930, with respect to U.S. Patent Nos. 9,264,370 (``the '370
patent''); 10,193,917 (``the '917 patent''); and 10,284,526 (``the '526
patent''). On review, the Commission has determined to take no position
regarding whether the economic prong of the domestic industry
requirement is satisfied, and to affirm under modified reasoning the
Final ID's finding of no violation of section 337 with respect to those
patents. This investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2392. 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#94d1d0ddc7a7dcf1f8e4d4e1e7fde0f7baf3fbe2"><span class="__cf_email__" data-cfemail="5217161b01611a373e221227213b26317c353d24">[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 24, 2022, the Commission instituted
this investigation based on a complaint, as amended and supplemented,
filed on behalf of Centripetal Networks, Inc. of Reston, Virginia. 87
FR 31581-82 (May 24, 2022). The complaint alleged violations of section
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section
337''), based upon the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain computer network security equipment and systems, related
software, components thereof, and products containing the same that
infringe certain claims of the '370 patent, the '917 patent, and the
'526 patent. Id. at 31581. The complaint also alleged that a domestic
industry exists. Id. The Commission's notice of investigation names
Keysight Technologies, Inc. of Santa Rosa, California (``Keysight'') as
a respondent. Id. The Office of Unfair Import Investigations (``OUII'')
is participating in this investigation. Id.
On January 20, 2023, the complainant provided notice that it
changed its name to Centripetal Networks, LLC (``Centripetal'').
Complainant's Notice of Corporate Name Change (Jan. 20, 2023). On March
6, 2023, the Commission granted the complainant's motion to amend the
complainant and notice of the investigation to reflect the name change.
Order No. 32 (Feb. 3, 2023), unreviewed by Comm'n Notice (Mar. 6,
2023).
Centripetal originally asserted that Keysight violated section 337
based on infringement of claims 22-27, 42-48, and 63 of the '370
patent; claims 1, 5, 11, 15, and 20 of the '917 patent; and claims 1-3,
6, 11-13, and 16 of the '526 patent. 87 FR at 31581-82. The Commission
previously terminated the investigation with respect to claims 23-27,
42, 44-48, and 63 of the '370 patent, claims 1, 5, and 15 of the '917
patent,
[[Page 85914]]
and claims 2, 6 and 12 of the '526 patent based on Centripetal's
partial withdrawal of the complaint. Order No. 27 (Jan. 27, 2023),
unreviewed by Comm'n Notice (Feb. 24, 2023); Order No. 39 (Feb. 27,
2023), unreviewed by Comm'n Notice (Mar. 29, 2023). Accordingly, at the
time of the evidentiary hearing, claims 22 and 43 of the '370 patent,
claims 11 and 20 of the '917 patent, and claims 1, 3, 11, 13, and 16 of
the '526 patent remained at issue.
On September 26, 2022, the ALJ conducted a Markman hearing. On
February 22, 2023, the ALJ issued a claim construction order. Order No.
37 (Feb. 22, 2023). The ALJ held an evidentiary hearing on March 1-3
and 6-7, 2023.
On August 8, 2023, the ALJ issued the Final ID finding no violation
of section 337 with respect to any asserted patent. Specifically, the
Final ID finds that: (1) with respect to the '370 patent, claims 22 and
43 are not infringed and are invalid for being directed to unpatentable
subject matter under 35 U.S.C. 101, and the technical prong of the
domestic industry requirement is not satisfied; (2) with respect to the
'917 patent claims 11 and 20 are infringed and the technical prong of
the domestic industry requirement is satisfied, but the asserted claims
are invalid as obvious under 35 U.S.C. 103; and (3) with respect to the
'526 patent, claims 1, 3, 11, 13, and 16 of the '526 patent are not
infringed and are invalid as anticipated under 35 U.S.C. 102, but the
technical prong of the domestic industry requirement is satisfied.
Finally, the Final ID finds that Centripetal has satisfied the economic
prong of the domestic industry requirement under Section 337(a)(3)(A)
and (B) with respect to each of the asserted patents.
The ALJ recommended that, if the Commission were to find a
violation of section 337, the Commission should issue a limited
exclusion order and cease and desist order with respect to Keysight.
The ALJ also recommended that, should a violation be found, the bond
rate be set at a 100 percent of entered value of the products imported
during the period of Presidential review.
On August 14, 2023, the Commission requested comments from the
public and interested government agencies regarding any public interest
issues raised by the ALJ's recommended determination on remedy and
bonding. 88 FR 55067-68 (Aug. 14, 2023). The Commission received no
comments from the public or government agencies. On September 7, 2023,
Centripetal and Keysight provided comments on the public interest
pursuant to Commission Rule 210.50(a)(4). 19 CFR 210.50(a)(4).
On August 23, 2023, Centripetal filed a petition for review
challenging the Final ID's findings that: (1) the '370 patent claims
are not infringed or invalid for being directed to unpatentable subject
matter, and that the technical prong of the domestic industry
requirement is not satisfied as to that patent; (2) the '917 patent
claims are invalid for obviousness; and (3) the '526 claims are not
infringed and invalid for anticipation. On September 1, 2023, Keysight
and OUII filed responses opposing the petition for review.
Having examined the record of this investigation, including the
ALJ's Final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the Final ID in part and, on
review, to affirm the Final ID's finding of no violation. Specifically,
the Commission reviews the Final ID's finding that Centripetal waived
its argument that the Check Point R77.30 prior art software does not
satisfy the limitation ``creat[ing] the list of the identification data
based on the received at least one list of network addresses and/or
domain names'' in claims 3 and 13 of the '526 patent. The Final ID
finds waiver because Centripetal failed to contest that limitation in
its prehearing brief. Id. at 203-204. Centripetal, however, showed that
it argued in its prehearing brief that the Application and URL Filter
do not satisfy the claim language because that functionality is
performed after decryption. Pet. at 76. Accordingly, the Commission
determines to review the Final ID's finding of waiver, and, on review,
finds that Centripetal did not waive its argument.
The Commission, however, determines to affirm under modified
reasoning the Final ID's finding that Check Point R77.30 satisfies the
limitation ``creat[ing] the list of the identification data based on
the received at least one list of network addresses and/or domain
names.'' In addition to the reasons found in the Final ID, and as
argued by OUII, the Application and URL Filter satisfy the claim
language because the filter uses category-based rules based on a
subscription service to determine what traffic to decrypt and inspect.
See RX-0529.0039-41 (describing a HTTPS inspection policy with rules
that use subscription-service categories to inspect traffic); id. at
.0035 (explaining that HTTPS inspection involves decrypting data,
inspecting the clear text, and re-encrypting the data).
The Commission has also determined to review the Final ID's finding
that the economic prong of the domestic industry requirement is
satisfied. On review, the Commission has determined to take no position
as to whether the economic prong of the domestic industry requirement
is satisfied.
The Commission has determined not to review the remainder of the
Final ID. Consequently, the Commission finds no violation of section
337 with respect to any asserted patent. This investigation is hereby
terminated with a finding of no violation of section 337.
The Commission vote for this determination took place on December
5, 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: December 5, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-27050 Filed 12-8-23; 8:45 am]
BILLING CODE 7020-02-P
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