84 FR 10532 - Certain Magnetic Data Storage Tapes and Cartridges Containing the Same (II); Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; and Schedule for Filing Written Submis

Notice is hereby given that the U.S. International Trade Commission (the ``Commission'') has determined to review in part the final initial determination (``ID'') of the administrative law judge (``ALJ''), which was issued on October 25, 2018.

[Federal Register Volume 84, Number 55 (Thursday, March 21, 2019)]
[Notices]
[Pages 10532-10534]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2019-05353]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1076]


Certain Magnetic Data Storage Tapes and Cartridges Containing the 
Same (II); Notice of a Commission Determination To Review in Part a 
Final Initial Determination Finding a Violation of Section 337; and 
Schedule for Filing Written Submissions on the Issues Under Review and 
on Remedy, Public Interest, and Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (the ``Commission'') has determined to review in part the 
final initial determination (``ID'') of the administrative law judge 
(``ALJ''), which was issued on October 25, 2018.

FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, 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 are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW, Washington, DC 20436, 
telephone 202-205-2000. General information concerning the Commission 
may also be obtained by accessing its internet server (https://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's Electronic Docket Information System (``EDIS'') 
(https://edis.usitc.gov). Hearing-impaired persons are advised that 
information on this matter can be obtained by contacting the 
Commission's TDD terminal, telephone 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on October 25, 2017, on a complaint filed by FUJIFILM Corporation of 
Tokyo, Japan and FUJIFILM Recording Media U.S.A., Inc. of Bedford, 
Massachusetts (collectively, ``Fujifilm''). 82 FR 49421-22 (Oct. 25, 
2017). The complaint alleges violations of 19 U.S.C. 1337, as amended 
(``Section 337''), in the importation into the United States, sale for 
importation, and sale in the United States after importation of certain 
magnetic data storage tapes and cartridges that infringe one or more of 
the asserted claims of U.S. Patent Nos. 6,630,256 (``the '256 
patent''), 6,835,451 (``the '451 patent''), 7,011,899 (``the '899 
patent''), 6,462,905 (``the '905 patent''), and 6,783,094 (``the '094 
patent''). Id. The notice of investigation named Sony Corporation of 
Tokyo, Japan; Sony Storage Media Solutions Corporation of Tokyo, Japan; 
Sony Storage Media Manufacturing Corporation of Miyagi, Japan; Sony 
DADC US Inc. of Terre Haute, Indiana; and Sony Latin America Inc. of 
Miami, Florida (collectively, ``Sony'') as respondents. Id. The Office 
of Unfair Import Investigations (``OUII'') was also named a party to 
the investigation. Id.
    The Commission previously terminated the investigation as to the 
'094 patent and certain claims of the '905, '256, '451, and '899 
patents. Comm'n Notice (Apr. 17, 2018) (aff'g Order No. 11); Comm'n 
Notice (July 9, 2018) (aff'g Order No. 17); Comm'n Notice (July 27, 
2018) (aff'g Order No. 22).
    The ALJ held an evidentiary hearing from June 25-29, 2018. On 
October 25, 2018, the ALJ issued his final ID, in which he found Sony 
in violation of Section 337 as to the '256 and '899 patents, but not 
the '905 or '451 patents. The ALJ recommended that the Commission issue 
a limited exclusion order and cease and desist orders to each of the 
Sony respondents.
    The parties filed their respective petitions for review on November 
9, 2018. The parties filed their respective responses to the petitions 
on November 20, 2018.
    Having reviewed the record in this investigation, including the 
ALJ's orders and final ID, as well as the parties' petitions and 
responses thereto, the Commission has determined to review the final ID 
in part, as follows.
    With regard to the '256 patent, the Commission has determined to 
review the ID's finding that Fujifilm has satisfied the technical prong 
of the domestic industry requirement.
    With regard to the '899 patent, the Commission has determined to 
review the ID's construction and application of the claimed ranges 
expressed in terms of ``per 6400 [mu]m\2\'' and related issues of 
infringement and the technical prong of domestic industry requirement. 
The Commission has also determined to review the ID's findings as to 
whether the asserted claims are invalid as obvious.

[[Page 10533]]

    With regard to the '905 patent, the Commission has determined to 
review the ID's findings regarding whether claim 3 of the patent is 
invalid as anticipated or obvious.
    The Commission has determined not to review the remaining findings 
in the ID.
    The parties are asked to provide additional briefing on the 
following issues regarding the '256, '899, and '905 patents, with 
appropriate reference to the applicable law and the existing 
evidentiary record. For each argument presented, the parties' 
submissions should set forth whether and/or how that argument was 
presented and preserved in the proceedings before the ALJ, in 
conformity with the ALJ's Ground Rules (Order No. 2), with citations to 
the record:
    A. With regard to the '256 patent, please identify any technical 
specifications, instructions from the manufacturer, vendor 
specifications, or any other evidence as to whether the sample LTO 
tapes tested by Fujifilm are representative of other Fujifilm tapes in 
the same product generations.
    B. With regard to the '899 patent, please explain how a person 
skilled in the art would construe the claimed projection densities 
expressed in terms of ``per 6400 [mu]m\2\'' in the context of the 
patent.
    C. Using your claim construction in (B), above, explain how a 
skilled artisan would determine whether a tape product, which may be 
100 meters long or more, satisfies that claim limitation, particularly 
if different measurements taken from a sample tape yield results both 
inside and outside the claimed ranges. Based on your interpretation and 
application of the claimed projection densities ``per 6400 [mu]m\2\'', 
explain whether Fujifilm has demonstrated by a preponderance of the 
evidence that the '899 patent claims are infringed or practiced by Sony 
or Fujifilm, respectively.
    D. With regard to claim 2 of the '899 patent, explain whether the 
evidence of record supports a finding that the sample Sony LTO-6 tape 
examined during the earlier investigation Certain Magnetic Tape 
Cartridges and Components Thereof, Inv. No. 337-TA-1036, was 
sufficiently representative of Sony tapes being manufactured today such 
that the measurements taken from that earlier tape (e.g., of 
coefficients of length variation) can provide reliable evidence in the 
present investigation.
    E. With regard to the '899 patent, explain whether a person skilled 
in the art would have been motivated to apply a Gaussian curve or other 
statistical analysis to the measurements disclosed in the Sueoka 
reference (Japanese Patent Application No. 2001-273623); whether such 
an analysis was performed properly in this case; and whether the 
asserted claims are invalid as obvious over Sueoka in combination with 
such an analysis or other knowledge in the art.
    F. With regard to the '899 patent, explain whether a person skilled 
in the art would have been motivated to combine Sueoka with the Aonuma 
reference (Japanese Patent Application No. 2003-36520), particularly in 
view of the different materials they use, and whether the asserted 
claims are invalid as obvious over Sueoka in combination with Aonuma.
    G. With regard to the '905 patent, explain whether Sony has 
demonstrated by clear and convincing evidence that the LTO tapes 
previously sold by Fujifilm expressly or inherently practiced all of 
the limitations of claim 3, and whether those private sales constituted 
an on-sale bar for purposes of anticipation.
    H. With respect to the '905 patent, explain whether Sony has shown 
by clear and convincing evidence that the McAllister-I patent (U.S. 
Patent No. 5,901,916) expressly or inherently discloses the relative 
gear sizes recited in claim 3, and whether the McAllister-I patent 
anticipates claim 3. If there is no anticipation, explain whether the 
figures and other teachings of the McAllister-I patent provide clear 
and convincing evidence that claim 3 is obvious.
    The parties are requested to brief only the discrete issues 
identified above, with reference to the applicable law and evidentiary 
record. The parties are not to brief any other issues on review, which 
have already been adequately presented in the parties' previous 
filings.
    In connection with the final disposition of this investigation, the 
Commission may issue: (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 (December 1994) (Commission 
Opinion).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or 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 
or disapprove 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 parties to this investigation are 
requested to file written submissions on the issues identified in this 
Notice and on the issues of remedy, the public interest, and bonding. 
Complainant and OUII are requested to submit proposed remedial orders 
for the Commission's consideration. Complainant is also requested to 
state the date that the patents expire and the HTSUS numbers under 
which the accused products are imported. Complainant is further 
requested to supply the names of known importers of the Respondents' 
products at issue in this investigation. The parties' written 
submissions and proposed remedial orders must be filed no later than 
the close of business on March 29, 2019. Reply submissions must be 
filed no later than the close of business on April 5, 2019. Opening 
submissions are limited to 50 pages. Reply submissions are limited to 
40 pages. Such submissions should address the ALJ's recommended 
determination on remedy and bonding. Interested government agencies and 
any other interested parties are also encouraged to

[[Page 10534]]

file written submissions on the issues of remedy, the public interest, 
and bonding. Third-party submissions should be filed no later than the 
close of business on March 29, 2019. 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 and submit eight 
(8) true paper copies to the Office of the Secretary by noon the next 
day, pursuant to section 201.4(f) of the Commission's Rule of Practice 
and Procedure (19 CFR 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-1076'') in a prominent place on 
the cover page and/or first page. (See Handbook for Electronic Filing 
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). 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. All such requests 
should be directed to the Secretary to the Commission and include a 
full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. 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[1] solely for 
cybersecurity purposes. All non-confidential written submissions will 
be available for public inspection at the Office of the Secretary and 
on EDIS.
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    \1\ All contract personnel will sign appropriate nondisclosure 
agreements.
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    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: March 15, 2019.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2019-05353 Filed 3-20-19; 8:45 am]
 BILLING CODE 7020-02-P