Notice2025-03489
Certain Video Capable Electronic Devices, Including Computers, Streaming Devices, Televisions, and Components and Modules Thereof; Notice of Commission Determination To Ratify the Prior Commission Actions in This Investigation and Review a Final Initial Determination of Violation of Section 337; Schedule for Filing Written Submissions on Certain Issues Under Review and Remedy, the Public Interest, and Bonding; Extension of the Target Date
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Published
March 4, 2025
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to ratify the prior Commission actions in this investigation and to review in its entirety a final initial determination ("Final ID") issued by the presiding administrative law judge ("ALJ") finding a violation of section 337 of the Tariff Act of 1930. The Commission requests briefing from the parties on certain issues under review and from the parties, interested government agencies, and interested persons on remedy, the public interest, and bonding based on the schedule set forth below. The Commission has also determined to extend the target date for the competition of the investigation to May 14, 2025.
Full Text
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<title>Federal Register, Volume 90 Issue 41 (Tuesday, March 4, 2025)</title>
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[Federal Register Volume 90, Number 41 (Tuesday, March 4, 2025)]
[Notices]
[Pages 11183-11186]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-03489]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1380]
Certain Video Capable Electronic Devices, Including Computers,
Streaming Devices, Televisions, and Components and Modules Thereof;
Notice of Commission Determination To Ratify the Prior Commission
Actions in This Investigation and Review a Final Initial Determination
of Violation of Section 337; Schedule for Filing Written Submissions on
Certain Issues Under Review and 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 has determined to ratify the prior Commission actions in
this investigation and to review in its entirety a final initial
determination (``Final ID'') issued by the presiding administrative law
judge (``ALJ'') finding a violation of section 337 of the Tariff Act of
1930. The Commission requests briefing from the parties on certain
issues under review and from the parties, interested government
agencies, and interested persons on remedy, the public interest, and
bonding based on the schedule set forth below. The Commission has also
determined to extend the target date for the competition of the
investigation to May 14, 2025.
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) 708-5468. 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#21646568721269444d516154524855420f464e57"><span class="__cf_email__" data-cfemail="a2e7e6ebf191eac7ced2e2d7d1cbd6c18cc5cdd4">[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 above-
captioned investigation on December 6, 2023, based on a complaint filed
by complainants Nokia Technologies Oy and Nokia Corporation, both of
Espoo, Finland (``Nokia''). 88 FR 84830-31 (Dec. 6, 2023). The
complaint, as supplemented, alleges a violation of 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
video capable electronic devices, including computers, streaming
devices, televisions, and components and modules thereof by reason of
the infringement of claims 6-9, 11, 15, 21, and 23 of U.S. Patent No.
7,724,818 (``the '818 patent''); claims 1-30 of U.S. Patent Nos.
10,536,714 (``the '714 patent''); claims 1-36 of U.S. Patent No.
11,805,267 (``the '267 patent''); claims 1, 5, 6, 8-13, 17, 18, 20-24,
26, 29-33, 35, and 38 of U.S. Patent No. 8,077,991 (``the '991
patent''); and claims 8-11 of U.S. Patent No. 8,050,321 (``the '321
patent''). Id. at 84830. The complaint further alleges that an industry
in the United States exists. Id. The notice of investigation names as
respondents HP, Inc. of Palo Alto, California (``HP''), and <a href="http://Amazon.com">Amazon.com</a>,
Inc. and <a href="http://Amazon.com">Amazon.com</a> Services LLC, both of Seattle, Washington
(``Amazon''). Id. The Office of Unfair Import Investigations (``OUII'')
is participating in the investigation for the purposes of the public
interest only. Id. at 84831.
The Commission terminated the investigation based on a partial
withdrawal of the complaint with respect to claims 7, 11, 21, and 23 of
the '818 patent; claims 1-22, and 24-30 of the '714 patent; claims 1-
24, and 28-36 of the '267 patent; claims 1, 5-6, 8-9, 10-13, 17, 18,
20-21, 23-24, 26, 30, 32, 33, and 35 of the '991 patent; and claims 9
and 11 of the '321 patent. Order No. 19 (Feb. 14, 2024), unreviewed by
Comm'n Notice (Mar. 8, 2024) (terminating the investigation with
respect to claim 23 of the '818 patent); Order No. 42 (Sept. 3, 2024),
unreviewed by Comm'n Notice (Sept. 17, 2024) (terminating the
investigation with respect to claims 11 and 21 of the '818 patent;
claims 1-14, 16-22, and 24-30 of the '714 patent; claims 1-6, 10-24,
and 28-36 of the '267 patent; claims 1, 5-6, 8-9, 10-13, 17, 18, 20-21,
23-24, 26, 30, 32, 33, and 35 of the '991 patent and claims 9 and 11 of
the '321 patent); Order No. 46 (Sept. 17, 2024), unreviewed by Comm'n
Notice (Oct. 1, 2024) (terminating the investigation with respect to
claim 7 of the '818 patent); Order No. 48 (Nov. 25, 2024), unreviewed
by Comm'n Notice (Dec. 10, 2024) (terminating the investigation with
respect to claim 15 of the '714 patent and claims 7-9 of the '267
patent). Accordingly, at the time of the Final ID, the asserted claims
[[Page 11184]]
consisted of: claims 6, 8, 9 and 15 of the '818 patent; claims 8 and 10
of the '321 patent; claims 22, 29, 31, and 38 of the '991 patent;
claims 15 and 23 of the '714 patent; and claims 7-9 and 25-27 of the
'267 patent. Final ID at 6.
On August 12, 2024, the ALJ granted summary determination that
Nokia failed to establish the economic prong of the domestic industry
requirement under subsection 337(a)(3)(C) by failing to present
evidence of a nexus between its investments and the domestic industry
articles. Order No. 41 (Aug. 12, 2024). The Commission declined to
review that ID. Comm'n Notice (Sept. 10, 2024).
The ALJ held an evidentiary hearing from September 9-13, 2024.
Subsequently, the Commission terminated the investigation with respect
to HP based on a settlement agreement. Order No. 49 (Nov. 27, 2024),
unreviewed by Comm'n Notice (Dec. 10, 2024). Accordingly, at the time
of the Final ID, only Amazon remained in the investigation as a
respondent.
On December 20, 2024, the ALJ issued the Final ID finding a
violation of section 337 by Amazon with respect to four patents--the
'818, '321, '714, and '267 patents--and no violation with respect to
the '991 patent. Final ID at 175. The Final ID found, inter alia, that
(1) Nokia showed infringement and satisfaction of the technical prong
of the domestic industry requirement for claims 6, 8, 9, and 15 of the
'818 patent, and that Amazon did not show any of those claims invalid;
(2) Nokia showed infringement and satisfaction of the technical prong
of the domestic industry requirement for claims 8 and 10 of the '321
patent, and that Amazon did not show any of those claims invalid; (3)
Nokia did not show infringement or satisfaction of the technical prong
of the domestic industry requirement for claims 22, 29, 31, and 38 of
the '991 patent, and that Amazon showed that claims 22 and 31 are
invalid; (4) Nokia showed infringement and satisfaction of the
technical prong of the domestic industry requirement for claim 23 of
the '714 patent but not for claim 15 of the '714 patent, and that
Amazon did not show any of those claims invalid; and (5) Nokia showed
infringement and satisfaction of the technical prong of the domestic
industry requirement for claims 7-9 and 25-27 of the '267 patent, and
that Amazon did show that claims 7, 25, and 26 were invalid. Final ID
at 25-139; 174-75. The Final ID also found that Nokia satisfied the
economic prong of the domestic industry requirement and rejected
Amazon's defenses that Nokia breached its reasonable and non-
discriminatory (``RAND'') licensing obligations, as well as Amazon's
defenses of implied waiver, waiver, equitable estoppel, patent misuse,
and unclean hands. Id. at 140-54.
The ALJ also issued a recommended determination (``RD'') on the
public interest, remedy, and bond. The ALJ advised that the issuance of
a remedial order against the infringing articles: (1) would not
adversely affect public health and welfare because, while the accused
products are used in health applications, they are not themselves
medical devices; (2) would not adversely affect competitive conditions
because Amazon does not have a large market share and suitable
replacements exist; (3) would not negatively impact the production of
like or directly competitive articles because no such competitive
articles are produced in the United States; and (4) would not
negatively impact U.S. consumers because suitable replacements exist
and there is no evidence that Nokia breached its RAND obligations. Id.
at 177-82. The ALJ then recommended that, if the Commission were to
find a violation, it should issue a limited exclusion order (``LEO'')
with a certification provision and an exemption for service, repair,
and replacement and cease and desist orders (``CDO'') against Amazon
based on their significant U.S. inventory and significant U.S.
operations. Id. at 182-83. The ALJ recommended that the Commission
issue a bond of zero percent based on Nokia' failure to justify a bond.
Id. at 183.
On December 31, 2024, the Commission requested comments from the
public and interested government agencies regarding any public interest
issues raised by the ALJ's RD. See 90 FR 670 (Jan. 6, 2025). The
Commission received comments from Michael A. Carrier, a Rutgers Law
Professor; four other law professors; the Fair Standards Alliance; the
Computer and Communications Alliance Industry Association and Alliance
for Automotive Innovation; ACT the App Association; and the ITC
Modernization Alliance and High Tech Innovators Alliance. The
Commission also received comments from Nokia pursuant to Commission
Rule 210.50(a)(4). 19 CFR 210.50(a)(4).
On January 3, 2025, Amazon filed a petition for review challenging
quorum and the Final ID's findings on the economic prong of the
domestic industry requirement, various infringement, invalidity, and
technical prong issues for the four patents for which violation was
found, and implied waiver and breach of the obligation to provide a
license on RAND terms.
That same day, Nokia filed a petition challenging the Final ID's
finding of no violation for the '991 patent and finding that claims 25
and 26 of the '267 patent are invalid as obvious, and a contingent
petition regarding aspects of the Final ID's findings on the '818,
'321, and '714 patents, the economic prong, and the RAND defense. On
January 13, 2025, Amazon and Nokia opposed each other's petitions.
Also on January 3, 2025, Amazon filed a motion to extend the target
date for the completion of the investigation based on quorum issues. On
January 15, 2025, Nokia opposed Amazon's motion. On January 24, 2025,
Amazon acknowledged that the potential quorum issues no longer existed,
but requested that the Commission extend the target date for the
completion of the investigation based on a pending United Kingdom Court
of Appeal proceeding concerning an interim license and RAND issues. The
motion remains pending before the Commission.
On January 17, 2025, Nokia and Amazon filed a joint motion to
reopen the record to correct mislabeling in two admitted exhibits and
to submit three exhibits (which were admitted by the ALJ but
inadvertently not submitted by Amazon) into the record. The motion
indicates that OUII takes no position on the motion due to its limited
participation. The Commission has determined to grant the motion.
Before reaching the merits of whether to review the Final ID and in
an abundance of caution, the Commission, after having fully reviewed
the underlying facts and decisions, has determined to ratify all prior
Commission actions taken in this investigation, including but not
limited to its determination to institute this investigation, the
delegation of this investigation to the ALJ for appropriate
proceedings, initial determinations, and findings on the public
interest, the naming of OUII as a party to this investigation, and the
Commission's prior determinations declining to review the initial
determinations of the presiding ALJ regarding termination of claims,
the termination of HP as a respondent, and the grant in part of a
motion for summary determination that Nokia failed to establish the
economic prong of the domestic industry requirement under 19 U.S.C.
1337(a)(3)(C). 88 FR 84830-31; Comm'n Notice (Feb. 20, 2025); Comm'n
Notice (Mar. 8, 2024); Comm'n Notice (Sept. 10, 2024); Comm'n Notice
(Sept. 17, 2024); Comm'n Notice (Oct. 1, 2024); Comm'n Notice (Dec. 10,
2024); Advanced Disposal Services East, Inc. v. N.L.R.B., 820 F.3d 592,
602-06 (3d Cir.
[[Page 11185]]
2016). Amazon does not dispute that the Commission currently has quorum
under its statute, 19 U.S.C. 1330(c)(6).
Having examined the record of this investigation, including the
Final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the Final ID in its entirety. The
Commission has also determined to extend the target date for the
competition of the investigation to May 14, 2025.
In connection with its review, the Commission is interested in
responses to the following questions. The parties are requested to
brief their positions with reference to the applicable law, the
existing evidentiary record, and the parties' submissions during the
investigation.
1. Citing the evidentiary record, please describe the extent to
which the Microsoft Xbox chipsets are customized and the extent to
which Microsoft is involved in such customization. Please explain how
such customization impacts the analysis under the Magnetic Tapes
factors--``whether the patented technology is sold as a separate entity
or article of commerce; whether it is an essential component of the
downstream product; and whether the domestic industry activities have a
direct relationship to exploitation of the patented technology.'' See
Certain Magnetic Tape Cartridges, Inv. No. 337-TA-1058, Comm'n Op. at
48-50 (Apr. 9, 2019).
2. What is the evidence that Nokia's licensees' R&D activities and
investments in their downstream products ``have a direct relationship
to the exploitation of the patented technology'' of each asserted
patent? Please explain what that direct relationship is. Under the
rationale of Magnetic Tapes, at what point would domestic industry
activities no longer have a direct relationship to exploitation of the
patented technology such that the activities should not be considered
``with respect to the article protected by the patent''? How is the
consideration of the relationship of domestic activities asserted under
subsection (A) or (B) to exploitation of the patented technology under
the rationale of Magnetic Tapes different than the consideration of the
relationship of the asserted activities to exploitation of the patented
technology under subsection (C)?
3. In determining whether domestic research and development (R&D)
investments are significant under subsection 337(a)(3)(A), should the
Commission consider all worldwide plant and equipment investments
related to the article protected by each patent or only worldwide R&D-
related plant and equipment expenses? Likewise, in determining whether
domestic R&D investments are significant under subsection 337(a)(3)(B),
should the Commission consider all worldwide labor and capital
investments related to the article protected by each patent or only
worldwide R&D-related labor and capital expenses? Please discuss the
evidence of record as to these contextual analyses.
4. Please address whether the Commission should continue allowing
investments related to engineering, research and development to qualify
for a domestic industry under subsections 337(a)(3)(A) and (B). See
Certain Solid State Storage Drives, Stacked Electronic Components, and
Products Containing Same, Inv. No. 337-TA-1097, Comm'n Op. (June 29,
2018). If engineering, research and development investments can still
be considered under subsections (A) and (B), should the Commission
consider a different basis for determining significance of those
investments under subsections (A) and (B) than what should be
considered in determining whether those investments are substantial
under subsection (C)?
5. When the complainant alleges that an asserted patent is a
standard essential patent, subject to reasonable, and non-
discriminatory (RAND) licensing terms, is the complainant precluded
from seeking an exclusion order and/or cease and desist order based on
infringement of that patent? Should the Commission consider RAND
licensing obligations as a legal or equitable defense (i.e., as part of
its violation determination) under section 337(c), 19 U.S.C. 1337(c))
or as part of its consideration of the public interest factors under
section 337(d)(1) and (f)(1)? Please discuss theories in law, equity,
and the public interest, and identify which (if any) of the public
interest factors of 337(d)(1) and (f)(1) preclude issuance of such an
order.
6. In the event a violation is found, does the information
regarding the parties' RAND obligations and licensing attempts inform
any particular public interest factor that the Commission should
consider under section 337(d)(1) and (f)(1)? If so, please identify
which factor it informs and explain why, including the relevant
evidence of record. As part of its public interest analysis, should the
Commission determine whether any prior license offer made by the patent
holder covering the accused products is reasonable and non-
discriminatory? If so, what evidence should the Commission consider in
determining whether offers are reasonable and non-discriminatory based
on the record of this investigation?
7. Should the Commission determine whether Amazon is a willing
putative licensee? What is Amazon's obligation to fairly compensate the
patent holder? What is the evidence of record, which party has the
burden of proof, and was that burden met?
8. In this investigation, what evidence is there in the record
regarding whether Nokia complied with its patent disclosure obligations
regarding the setting of the H.264 and H.265 standards with respect to
the patents asserted in this investigation? Please cite the relevant
agreement and evidence of Nokia's compliance or noncompliance with
regard to any obligations concerning the disclosure of the asserted
patents.
9. What is the evidence of record of hold-up or hold-out by the
parties, if any?
10. To what extent would the resolution of the Amazon-Nokia dispute
in the UK court resolve issues in this investigation, including without
limitation the violation issues, the remedy issues, and the public
interest issues? If the UK court determines that a license should be
granted on RAND terms, would that license cover the accused products in
this investigation? What is the expected timing of any such resolution
in the UK proceedings? Should the Commission extend its target date
pending resolution of this dispute by the UK court?
11. Should the Commission provide an exemption to its remedial
orders to allow for service, repair, and/or replacement of the accused
products? Should such an exemption apply to only accused products under
warranty? If an exemption should be granted to allow accused products
to be used for service, repair, and/or replacement, please propose
specific language that should be included in the Commission's remedial
orders for any such exemption.
12. What are the warranty terms, if any, for the accused products?
Is there any evidence of record showing that the warranty terms can be
satisfied using non-infringing products?
13. Please provide data and information in the record identifying
all reasonable substitutes for the accused products and their
availability to U.S. consumers.
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,
[[Page 11186]]
(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 position on the Commission's action. 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 Commission requests that the parties to
the investigation file written submissions on the issues identified in
this notice. The Commission encourages parties to the investigation,
interested government agencies, and any other interested parties 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, which issued on
December 20, 2024.
The Commission further requests that Complainants and OUII submit
proposed remedial orders, state the date when the asserted patents
expire, provide the HTSUS subheadings under which the subject articles
are imported, and supply a list of known importers of the subject
article. The written submissions, exclusive of any exhibits, must not
exceed 75 pages, and must be filed no later than close of business on
March 13, 2025. Reply submissions must not exceed 50 pages and must be
filed no later than the close of business on March 20, 2025. No further
submissions on 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 pursuant to 19
CFR 210.4(f). Submissions should refer to the investigation number
(Inv. No. 337-TA-1380) 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 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 February
27, 2025.
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: February 27, 2025.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2025-03489 Filed 3-3-25; 8:45 am]
BILLING CODE 7020-02-P
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