Notice2024-13218
Certain Integrated Circuits, Components Thereof, and Products Containing the Same; Notice of Commission Determination To Review in Part a Final Initial Determination; Request for Written Submissions on the Issues Under Review, Remedy, Bond, and the Public Interest
Primary source
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Published
June 17, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review in part the final initial determination ("FID") issued by the presiding administrative law judge ("ALJ") in the above-captioned investigation. The Commission is soliciting briefing from the parties on the issues under review, as well as briefing from the parties, interested government agencies, and interested persons on remedy, bonding, and the public interest.
Full Text
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<title>Federal Register, Volume 89 Issue 117 (Monday, June 17, 2024)</title>
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[Federal Register Volume 89, Number 117 (Monday, June 17, 2024)]
[Notices]
[Pages 51366-51370]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13218]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1350]
Certain Integrated Circuits, Components Thereof, and Products
Containing the Same; Notice of Commission Determination To Review in
Part a Final Initial Determination; Request for Written Submissions on
the Issues Under Review, Remedy, Bond, and the Public Interest
AGENCY: 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 the final
initial determination (``FID'') issued by the presiding administrative
law judge (``ALJ'') in the above-captioned investigation. The
Commission is soliciting briefing from the parties on the issues under
review, as well as briefing from the parties, interested government
agencies, and interested persons on remedy, bonding, and the public
interest.
FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2382. 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#0441404d57374c6168744471776d70672a636b72"><span class="__cf_email__" data-cfemail="a3e6e7eaf090ebc6cfd3e3d6d0cad7c08dc4ccd5">[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 January 24, 2023, the Commission
instituted the present section 337 investigation based on a complaint
filed by Realtek Semiconductor Corporation of Hsinchu, Taiwan
(``Realtek''). See 88 FR 4205-06 (Jan. 24, 2023). The
[[Page 51367]]
complaint, as supplemented, alleges violations of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C 1337), due to the importation
into the United States, sale for importation, or sale within the United
States after importation of certain integrated circuits, components
thereof, and products containing the same that infringe one or more
asserted claims of U.S. Patent Nos. 7,936,245 (``the '245 patent'');
8,006,218 (``the '218 patent''); or 9,590,582 (``the '582 patent'')
(collectively, the ``Asserted Patents''). Id. The complaint alleges
that a domestic industry exists. Id. The notice of investigation names
Advanced Micro Devices, Inc. of Santa Clara, CA (``AMD'') as the
respondent. Id. The Office of Unfair Import Investigations is not
participating in this investigation. Id.
The presiding ALJ held a claim construction (Markman) hearing on
June 5, 2023. The ALJ issued the claim construction order on July 25,
2023. Order No. 21 (July 25, 2023).
On June 20, 2023, AMD moved to preclude Mr. Steve Baik, Realtek's
outside counsel, from testifying as a fact witness in the evidentiary
hearing. On July 7, 2023, the ALJ issued Order No. 19, ordering AMD to
show cause why Winston & Strawn (``Winston'') should not be
disqualified in this investigation due to an alleged conflict of
interest. Order No. 19 at 2 (July 7, 2023).
On August 4, 2023, the ALJ held a teleconference with the parties
regarding Mr. Baik and Winston. On August 17, 2023, the ALJ issued
Order No. 23, which granted AMD's motion to preclude Mr. Baik from
testifying on behalf of Realtek but did not disqualify Winston. Order
No. 23 at 1 (Aug. 17, 2023). On August 24, 2023, the ALJ denied
Realtek's motions for reconsideration and for interlocutory review of
Order No. 23. Order No. 24 (Aug. 24, 2023). On September 6, 2023,
Realtek filed a petition in the U.S. Court of Appeals for the Federal
Circuit (``Federal Circuit'') seeking a writ of mandamus to order the
ALJ to vacate the ruling striking Mr. Baik. The Federal Circuit denied
the petition on September 25, 2023. In re Realtek Semiconductor Corp.,
Appeal No. 2023-147, On Petition and Motion (Sept. 25, 2023).
On October 16, 2023, the ALJ issued an order regarding AMD's motion
to sanction Realtek for failing to accurately answer certain
interrogatories and produce relevant documents regarding Realtek's
earlier litigations against Avago Techns. General IP (Singapore) Pte.,
Ltd and Broadcom Corp. in the U.S. District Court for the District of
Delaware. Order No. 39 at 1-6 (Oct. 16, 2023). Order No. 39 determined
Realtek had engaged in sanctionable acts during discovery, but
otherwise deferred ruling on the motion until after the evidentiary
hearing. Id.
The ALJ proceeded to hold an evidentiary hearing from October 16-
20, 2023.
On November 14, 2023, the Commission terminated the investigation
as to claim 9 of the '582 patent and claim 14 of the '218 patent, based
on Realtek's withdrawal of those claims. Order No. 40 (Oct. 20, 2023),
unreviewed by Comm'n Notice (Nov. 14, 2023).
On January 19, 2024, the presiding ALJ issued the combined FID and
Recommended Determination on Remedy and Bond (``RD''). The FID finds no
violation of section 337 for any of the three patents at issue because:
(i) asserted claims 1, 2, and 8 of the '245 patent are infringed but
invalid as anticipated; (ii) asserted claims 12, 13, and 15-18 of the
'218 patent are infringed but invalid as obvious; (iii) regarding the
'582 patent, asserted claims 1-4 are not infringed and claims 1-3 (but
not claim 4) are invalid as anticipated; and (iv) Realtek failed to
satisfy the economic prong of the domestic industry requirement for any
of the three asserted patents. FID at 252. The FID also finds that
Realtek has satisfied the technical prong of the domestic industry
requirement for each asserted patent. Id.
The RD recommends, if the Commission finds a violation, issuing a
limited exclusion order barring entry of AMD products that infringe any
of the asserted claims of the '218, '582, or '245 patents. Id. at 254-
256. The RD also recommends issuing a cease and desist order directed
to AMD. Id. at 256. The RD further recommends issuing no (0%) bond
against any covered products imported during the period of Presidential
review. Id. at 256-257.
On January 30, 2024, the Commission issued a notice requesting
submissions on the public interest, if a violation is found. 89 FR 5933
(Jan. 30, 2024). The Commission did not receive any public interest
submission from the public or any other agency in response to this
notice. Id. On February 20, 2024, AMD filed its public interest
statement, pursuant to Commission Rule 210.50(a)(4). 19 CFR
210.50(a)(4). On February 26, 2024, Realtek filed a motion for leave to
file its public interest statement out of time. The Commission denied
Realtek's motion on the same date.
On February 2, 2024, Realtek filed a petition for review of the
FID's findings regarding: (i) invalidity of the '218 patent claims;
(ii) regarding the '582 patent, non-infringement of the asserted claims
and invalidity of asserted claims 1-3; (iii) failure to satisfy the
economic prong of the domestic industry requirement, including the
ALJ's decision to preclude Mr. Baik from testifying but not disqualify
Winston; and (iv) the sanction levied against Realtek for discovery
misconduct. Realtek is not seeking review of the '245 patent.
Also on February 2, 2024, AMD filed a contingent petition for
review of the FID's findings regarding: (i) for the '218 patent, claim
construction, infringement, the technical prong of the domestic
industry requirement, the asserted claims are not invalid for lack of
written description or enablement, and that a certain cited reference
(Jiang3) is not prior art; and (ii) for the '582 patent, that claims 1-
4 are not invalid as anticipated by the Qualcomm RFR6122 chip, that
claim 4 is not anticipated by the Qualcomm RBR1000 chip, and that
asserted claims 1-4 of the '582 patent are not obvious over certain
cited prior art references (including Muh); and (iii) certain findings
relating to the economic prong of the domestic industry requirement.
On February 12, 2024, Realtek and AMD filed their respective
responses to the opposing petitions for review.
Having reviewed the record in this investigation, including the
final ID, the parties' petitions, and responses thereto, the Commission
has determined to review the FID in part with respect to the following
issues:
(A) The Commission has determined not to review, and thereby
adopts, the FID's findings that the asserted claims the '245 patent are
invalid and thus there is no violation of section 337 with respect to
that patent.
(B) With respect to the '218 patent, the Commission has determined
to review claim construction, infringement, the technical prong of
domestic industry, and invalidity with respect to the so-named Jiang,
Jiang2, and Li prior art references. The Commission has also determined
to review whether Jiang3 is prior art to the '218 patent. The
Commission has determined not to review the FID's finding that the
asserted claims are not invalid for lack of written description or lack
of enablement.
(C) With respect to the '582 patent, the Commission has determined
to review the FID's construction of ``capacitor component[ ] arranged
corresponding to a first region,'' and its findings that asserted
claims 1-4 are not infringed. The Commission has also
[[Page 51368]]
determined to review the FID's findings that claims 1-3 are anticipated
by the prior art Qualcomm RBR1000 semiconductor device, but that claim
4 is not anticipated by the same device. The Commission has also
determined to review the FID's findings that claims 1-4 are not
anticipated by the Qualcomm RFR6122 device. The Commission has also
determined to review the FID's findings that the Muh reference is not
prior art. The Commission has determined not to review the FID's
findings that claims 1-4 are not invalid for lack of adequate written
description.
(D) The Commission has determined not to review the presiding ALJ's
decisions: (i) to preclude Mr. Baik, outside trial counsel for Realtek,
from testifying as a fact witness at the evidentiary hearing; and (ii)
not to disqualify Winston & Strawn.
(E) The Commission has determined to review the FID's findings that
Realtek has failed to satisfy the economic prong of the domestic
industry requirement.
(F) The Commission has determined to review the sanction award
against Realtek.
The parties are asked to provide additional briefing on the
following issues under review:
A. The '218 Patent
(1) With respect to claim 12, limitations 12[e] and [f] of the '218
patent, explain whether these limitations allow both horizontal power
supply wires and vertical power supply wires of the claimed ``global
power mesh'' to be on the same metal layer and identify the intrinsic
evidence in support. With respect to each of the accused AMD products,
the asserted domestic industry products, and the asserted prior art
references, explain whether the ``global power mesh'' includes: (i) at
least one metal layer in which all of the power supply wires on that
metal layer are horizontal; and (ii) at least a second, different metal
layer in which all of the power supply wires on that layer are
vertical.
(2) With respect to limitations 12[a]-[c], explain how the
intrinsic evidence distinguishes a ``first [partial] local power mesh''
from a ``second [partial] local power mesh,'' and how it distinguishes
a ``global power mesh'' from two local power meshes, e.g., whether
those different local power meshes must be insulated from each other,
comprise different wire networks, or have different power levels. With
respect to each accused AMD product, asserted domestic industry
product, and asserted prior art reference, explain whether that product
or reference discloses two or more local power meshes and how it
distinguishes a ``global power mesh'' from two local power meshes. In
particular, explain on what basis the images relied upon in the final
initial determination identify two partial meshes vs. a single global
power mesh. See FID at 109-10; see also id. at 117-18.
(3) With respect to limitations 12[a]-[c], explain how the
intrinsic evidence distinguishes a ``first power domain'' from a
``second power domain,'' e.g., whether those different power domains
must be insulated from each other or have different power requirements,
either temporarily or at all times. With respect to each accused AMD
product, asserted domestic industry product, and asserted prior art
reference, explain whether that product or reference discloses two or
more power domains that are distinguished by that feature.
(4) Explain whether the intrinsic evidence supports or precludes
reading the limitation ``provide the power needed'' recited in
limitation 12[c] to include zero power, or zero voltage. Assuming
arguendo that ``power'' could include zero power or zero voltage,
explain whether this construction impacts the FID's findings on
infringement, the technical prong of domestic industry, or invalidity.
(5) Explain whether or how claims 15-18 of the '582 patent can be
invalid over Li with Jiang (as defined in the FID) but not over Jiang
with Li.
(6) Explain whether there is any evidence to rebut Dr. Hall-Ellis'
testimony that the so-called Jiang3 reference was publicly available
prior to November 15, 2007, or that Jiang3 is not prior art to the '218
patent. Explain how Jiang3 relates to Jiang and Jiang2 and whether it
contributes to the issue of obviousness.
(7) Explain whether Complainant has challenged the prior art status
of Jiang3 in the currently pending proceeding concerning the '218
patent before the Patent Trial and Appeal Board (``PTAB''), IPR2023-
00920.
B. The '582 Patent
(8) With respect to the arrangement of the ``capacitor component''
relative to the ``inductor component'' in claim 1 of the '582 patent,
explain whether ``a capacitor component'' requires that substantially
all of the capacitor components lie between the ``extension-conductor
segments'' that define the ``first region,'' or whether there may be
additional capacitor components outside those ``extension-conductor
segments'' (but not under the ``coil-conductor segment''), provided
there is at least one ``capacitor component'' in the ``first region.''
Explain whether the intrinsic or extrinsic evidence indicates that the
presence of capacitors outside the ``extension-conductor segments''
(but not under the ``coil-conductor segment'') will tend to increase
unwanted phase noise, parasitic circuits, or otherwise degrade the
invention or impair the effectiveness of the claimed LC resonant
circuit. Explain whether each of the accused products and the asserted
prior art Qualcomm RFR1000 and RBR6122 contains at least one
``capacitor component'' substantially within the ``first region,'' as
defined by claim 1, regardless of whether there are additional
capacitors outside the extension-conductor segments.
(9) With respect to the '582 patent, explain whether there is any
difference in claim construction or scope between ``wherein a first
region is defined by the two extension-conductor segments,'' as recited
in claim 1, limitation 1[c] and ``wherein the first region is defined
between the two extension-conductor segments,'' as recited in dependent
claim 4. Explain whether, or how, the prior art Qualcomm RBR1000 reads
on claim 1 but not claim 4, based on this difference, if any.
(10) With respect to the asserted prior art Qualcomm RFR6122 chip,
explain whether claim 1, limitations 1[e], [f] covers an arrangement in
which the ``electrode segments'' can comprise the metal plates of one
set of capacitors while the claimed ``connecting segments'' belong to a
different set of capacitors. Explain whether the RFR6122 discloses a
single set of capacitors (or ``capacitor component'') that satisfies
both the ``electrode segments'' and the ``connecting segments'' of
limitations 1[e], [f].
(11) Address the arguments and evidence presented before PTAB
concerning the prior art status of Muh in IPR2023-00788. How is the
evidence presented before the PTAB different from the evidence of
record in this investigation? Should the Commission consider any
additional arguments and evidence presented before PTAB at this stage?
Based on the record in this proceeding, and the different evidentiary
standards involved, can the Commission reach a different conclusion
than PTAB on the prior art status of Muh? See Nobel Biocare Servs. AG
v. Instradent USA, Inc., 903 F.3d 1365, 1375 (Fed. Cir. 2018).
(12) If the Commission determines that Muh qualifies as prior art,
is a remand appropriate to allow the ALJ to consider the obviousness
argument based on Muh in the first instance?
[[Page 51369]]
C. Economic Prong
(13) With respect to Broadcom Corporation's asserted labor and
capital investments under 19 U.S.C. 1337(a)(3)(B) and (C) (see FID at
240-42), what evidence of record supports a finding that these
investments were properly allocated to the asserted domestic industry
products (i.e., the Broadcom BCM4387 and BCM 4389 chips) (``DI
products'') and limited to investments in the United States that were
directed to the asserted DI products?
(14) Identify the evidence of record in support of Realtek's
contention that the requisite nexus exists between its asserted
investments under 19 U.S.C. 1337(a)(3)(C) and the asserted patents.
(15) Identify the evidence of record with respect to whether
Realtek has shown that the investments upon which it relies are
significant or substantial. See 19 U.S.C. 1337(a)(3)(B), (C).
(16) Please address the meaning of articles ``protected by the
patent'' in subsections 337(a)(2) and (a)(3) and whether that language
requires that Broadcom hold a license to the asserted patents, or that
the Broadcom BCM4387 and BCM 4389 chips are otherwise protected by the
asserted patents, for Realtek to be able to rely on Broadcom's domestic
investments to establish a domestic industry.
D. Sanction
(17) Assuming the Commission determines to affirm the imposition of
the monetary sanction but decides to impose it on Realtek's ``outside
counsel'' consistent with the argument made in Realtek's petition for
review (Realtek Pet. at 100), identify which ``outside counsel'' would
be subject to the sanction.
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) 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).
Assuming AMD is requesting that the remedial orders contain an
exemption related to service or repair, please address: (i) with
reference to any factual evidence in support, including any not
currently on record, the rationale for providing such an exemption,
including under the public interest factors as stated in section 337(d)
(19 U.S.C. 137(d)); (ii) the warranty terms, if any, for the
merchandise in question; (iii) whether the exemption should apply only
to merchandise under warranty, or to all needed service and repair; and
(iv) what should be the temporal cutoff for the exemption, e.g., should
the operative date be the issuance of the Commission's final
determination or the end of the Presidential review period, and should
it apply to merchandise sold or imported prior to such date.
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 and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and to submit proposed remedial orders for
the Commission's consideration. Complainant is 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 June 28, 2024. Reply submissions must be filed no
later than the close of business on July 8, 2024. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission. Opening submissions are limited to 100 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-1350) 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
[[Page 51370]]
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 June 11,
2024.
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: June 11, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-13218 Filed 6-14-24; 8:45 am]
BILLING CODE 7020-02-P
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