80 FR 37656 - Certain 3G Mobile Handsets and Components Thereof; Commission Decision to Review in Part a Final Initial Determination on Remand; Request for Written Submissions

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 80, Issue 126 (July 1, 2015)

Page Range		37656-37658
FR Document		2015-16116

Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's (``ALJ'') final initial determination on remand (``RID'') issued on April 27, 2015, making findings concerning whether there is a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337'').

Federal Register, Volume 80 Issue 126 (Wednesday, July 1, 2015)

[Federal Register Volume 80, Number 126 (Wednesday, July 1, 2015)]
[Notices]
[Pages 37656-37658]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-16116]

=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-613 Remand]

Certain 3G Mobile Handsets and Components Thereof; Commission
Decision to Review in Part a Final Initial Determination on Remand;
Request for Written Submissions

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the presiding
administrative law judge's (``ALJ'') final initial determination on
remand (``RID'') issued on April 27, 2015, making findings concerning
whether there is a violation of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337 (``section 337'').

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-2301. 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 at http://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at http://edis.usitc.gov.
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 Inv. No. 337-TA-
613 on September 11, 2007, based on a complaint filed by InterDigital
Communications Corp. of King of Prussia, Pennsylvania and InterDigital
Technology Corp. of Wilmington, Delaware (collectively,
``InterDigital'') on August 7, 2007. 72 FR 51838 (Sept. 11, 2007). The
complaint, as amended, alleged violations of section 337 of the Tariff
Act of 1930 (19 U.S.C. 1337) in the importation into the United States,
the sale for importation, and the sale within the United States after
importation of certain 3G mobile handsets and components thereof by
reason of infringement of certain claims of U.S. Patent Nos. 7,117,004
(``the `004 patent''); 7,190,966 (``the `966 patent''); 7,286,847
(``the `847 patent''); and 6,693,579 (``the `579 patent). The Notice of
Investigation named Nokia Corporation of Espoo, Finland (``Nokia'') and
Nokia Inc. of Irving, Texas (``Nokia Inc.'') as respondents. The Office
of Unfair Import Investigations (``OUII'') was named as a participating
party. The Commission later amended the Notice of Investigation to
substitute complainant InterDigital Communications, Inc. for
InterDigital Communications Corp. Notice (Feb. 15, 2015); Order No. 53
(Jan. 14, 2015). The Commission also later amended the Notice of
Investigation to add Microsoft Mobile OY (``MMO'') as a party. 79 FR
43068-69 (July 24, 2014).
On February 13, 2009, InterDigital moved for summary determination
that a domestic industry exists because its licensing activities in the
United States satisfy the domestic industry requirement under 19 U.S.C.
1337(a)(3)(C). On March 10, 2009, the presiding Administrative Law
Judge (``ALJ'') issued an initial determination (``ID'') (Order No. 42)
granting the motion. On April 9, 2009, the Commission determined not to
review the ID. Notice (Apr. 9, 2009).
On August 14, 2009, the ALJ issued his final ID, finding no
violation of section 337. In particular, he found that the asserted
claims of the patents-in-suit are not infringed and that they are not
invalid. The ALJ further found no prosecution laches relating to the
`004, `966, and `847 patents and that the `579 patent is not
unenforceable.
On October 16, 2009, the Commission determined to review the final
ID in part. 74 FR 55068-69 (Oct. 26, 2009) (``Notice of Review''). In
particular, although the Commission affirmed the ID's determination of
no violation of section 337 and terminated the investigation, the
Commission reviewed and modified the ID's claim construction of the
term ``access signal'' found in the asserted claims of the '847 patent.
The Commission also reviewed, but took no position on, the ID's
construction of the term ``synchronize'' found in the asserted claims
of the '847 patent. The Commission further reviewed, but took no
position on, validity with respect to all of the asserted patents. The
Commission did not review the ID's construction of the claim
limitations ``code'' and ``increased power level'' in the asserted
claims of the '966 and '847 patents.
InterDigital timely appealed the Commission's final determination
of no violation of section 337 as to claims 1, 3, 8, 9, and 11 of the
'966 patent and claim 5 of the '847 patent to the Federal Circuit.
Specifically, InterDigital appealed the final ID's unreviewed
constructions of the claim limitations ``code'' and ``increased power
level'' in the '966 and '847 patents. Respondent Nokia, the intervenor
on appeal, raised as an alternate ground of affirmance the issue of
whether the Commission correctly determined that InterDigital has a
license-based domestic industry.
On August 1, 2012, the Federal Circuit reversed the Commission's
construction of the claim limitations ``code'' and ``increased power
level'' in the '966 and '847 patents, reversed the Commission's
determination of non-infringement as to the asserted claims of those
patents, and remanded to the Commission for further proceedings.

[[Page 37657]]

InterDigital Commc'ns, LLC v. Int'l Trade Comm'n., 690 F.3d 1318 (Fed.
Cir. 2012). In particular, the Court rejected the final ID's
construction of the ``code'' limitation as being limited to ``a
spreading code or a portion of a spreading code'' and, instead,
construed ``code'' as ``a sequence of chips'' and as ``broad enough to
cover both a spreading code and a non-spreading code.'' Id. at 1323-27.
The Court affirmed the Commission's determination that InterDigital has
a domestic industry. Id. at 1329-30. Nokia subsequently filed a
combined petition for panel rehearing and rehearing en banc on the
issue of domestic industry. On January 10, 2013, the Court denied the
petition and issued an additional opinion addressing several issues
raised in Nokia's petition for rehearing. InterDigital Commc'ns, LLC v.
Int'l Trade Comm'n, 707 F.3d 1295 (Fed. Cir. 2013). The Court's mandate
issued on January 17, 2013, returning jurisdiction to the Commission.
On February 4, 2013, the Commission issued an Order directing the
parties to submit comments regarding what further proceedings must be
conducted to comply with the Federal Circuit's remand. Commission Order
(Feb. 4, 2013). On February 12, 2014, the Commission issued an Order
and Opinion deciding certain aspects of the investigation and remanding
other aspects to the Chief ALJ. 79 FR 9277-79 (Feb. 18, 2014); see also
Comm'n Op. Remanding Investigation (Feb. 12, 2014); Comm'n Order
Remanding Investigation (Feb. 12, 2014). On February 24, 2014, Nokia
petitioned for reconsideration of the Commission's remand Order and
Opinion. On March 24, 2014, the Commission granted in part the petition
for reconsideration and issued a revised remand notice, order, and
opinion. 79 FR 17571-73 (Mar. 28, 2014).
On April 27, 2015, the ALJ issued the RID. The ALJ found that the
accused Nokia handsets meet the limitations ``generated using a same
code'' and ``the message being transmitted only subsequent to the
subscriber unit receiving the indication'' recited in the asserted
claims of the '966 and '847 patents. The ALJ also found that the pilot
signal (P-CPICH) in the 3GPP standard practiced by the accused Nokia
handsets satisfies the limitation ``synchronize to the pilot signal''
recited in the asserted claim of the '847 patent. The ALJ further found
that the currently imported Nokia handsets, which contain chips that
were not previously adjudicated, infringe the asserted claims of the
'966 and '847 patents. The ALJ also found that there is no evidence of
patent hold-up by InterDigital, but that there is evidence of reverse
hold-up by the respondents. The ALJ found that the public interest does
not preclude issuance of an exclusion order. The ALJ did not issue a
Recommended Determination on remedy or bonding.
On May 11, 2015, MMO and Nokia Inc. (collectively, ``MMO'') filed a
petition for review of certain aspects of the RID, including
infringement, domestic industry, and the public interest. Also on May
11, 2015, Nokia filed a petition for review of the RID with respect to
infringement, domestic industry, and whether the Commission has
jurisdiction over Nokia following the sale of its handset business to
MMO. Further on May 11, 2015, the Commission investigative attorney
(``IA'') filed a petition for review of the RID's finding of
infringement.
On May 19, 2015, InterDigital filed a response to MMO's and the
IA's petitions for review. Also on May 19, 2015, MMO filed a response
to the IA's petition for review. Further on May 19, 2015, the IA filed
a response to MMO's and Nokia's petitions for review.
On June 3, 2015, InterDigital filed a statement on the public
interest pursuant to Commission Rule 210.50(a)(4). Also on June 3,
2015, several non-parties filed responses to the Commission Notice
issued on May 4, 2015, including: United States Senator Robert Casey,
Jr. of Pennsylvania; Microsoft Corporation; Intel Corporation, Cisco
Systems, Inc., Dell Inc., and Hewlett-Packard Company; Innovation
Alliance; and Ericsson Inc. See 80 FR 26295-96 (May 7, 2015). On June
24, 2015, United States Senator Patrick J. Toomey of Pennsylvania also
filed a response to the Commission's May 4, 2015, notice.
On June 15, 2015, Respondents filed a motion for leave to file a
reply in support of their petition for review. Respondents Microsoft
Mobile Oy and Nokia Inc.'s Motion for Leave to File Reply of
Respondents Microsoft Mobile Oy and Nokia Inc. in Support of Petition
for Review (June 15, 2015). On June 17, 2015, the IA filed a response,
opposing Respondents' motion. Office of Unfair Import Investigation's
Response to Respondents Microsoft Mobile Oy and Nokia, Inc.'s Motion
for Leave to File Reply in Support of Petition to Review (June 17,
2015). On June 19, 2015, InterDigital filed a response, opposing
Respondents' motion. InterDigital's Response to Respondents MMO and
Nokia, Inc.'s Motion for Leave to File a Reply in Support of Petition
for Review (June 19, 2015). The motion is denied.
Having examined the record of this investigation, including the
RID, the petitions for review, and the responses thereto, the
Commission has determined to review the RID in part.
Specifically, the Commission has determined to review the RID's
findings concerning the application of the Commission's prior
construction in Certain Wireless Devices with 3G Capabilities and
Components Thereof, Inv. No. 337-TA-800 (``the 800 investigation'') and
Certain Wireless Devices with 3G and/or 4G Capabilities and Components
Thereof, Inv. No. 337-TA-868 (``the 868 investigation'') of the claim
limitation ``successively [transmits/transmitted] signals.'' The
Commission has also determined to review the RID with respect to
whether the accused products satisfy the claim limitation
``successively [transmits/transmitted] signals'' as construed by the
Commission in the 800 and 868 investigations. The Commission has
further determined to review the RID's public interest findings.
The Commission has determined not to review the remaining issues
decided in the RID.
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission requests
responses to the following questions:
1. Have Respondents waived any reliance on the application of the
Commission's construction in the 800 and 868 investigations of the
limitation ``successively [transmits/transmitted] signals?''
2. Do the Commission's determinations in the 800 and/or 868
investigation constitute an intervening change of controlling legal
authority such that the Commission should apply the construction of
``successively [transmits/transmitted] signals'' as found in those
investigations in determining infringement in this investigation?
3. What evidence exists in the record of this investigation with
respect to whether the accused products satisfy the ``successively
[transmits/transmitted] signals'' limitation as construed by the
Commission in the 800 and 868 investigations?
4. Please state and explain your position on whether, for purposes
of the Commission's consideration of the statutory public interest
factors, InterDigital has in effect asserted that the patents in
question are FRAND-encumbered, standard-essential patents.
5. Please state and explain your position on whether InterDigital
has offered Respondents licensing terms that reflect the value of its
own patents.

[[Page 37658]]

6. What portion of the accused devices is allegedly covered by the
asserted claims? Do the patents in question relate to relatively minor
features of the accused devices?
7. Please state and explain your position on the legal significance
of InterDigital's alleged willingness to accept an arbitral
determination of FRAND terms with respect to the patents in question.
8. Please state and explain your position on the legal significance
of InterDigital's alleged unwillingness to obtain a judicial
determination of FRAND terms with respect to the patents in question.
9. Please state and explain your position on whether Respondents
have shown themselves willing to take licenses to the patents in
question on FRAND terms.
10. Do Respondents' alleged delaying tactics in negotiating with
InterDigital provide sufficient evidence of reverse hold-up, regardless
of Respondents' offers to license only InterDigital's U.S. patent
portfolio?
11. Do Respondents' licensing counteroffers satisfy the
requirements of the ETSI IPR Policy?
12. Please state and explain your position on whether the RID
equates patent infringement and reverse hold-up.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent(s) 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 are likely to do
so. For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (Dec. 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 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
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 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 issued in the original investigation on August 14,
2009. Complainant and OUII are requested to submit proposed remedial
orders for the Commission's consideration and to provide identification
information for all importers of the subject articles. Complainant and
OUII are also requested to state the dates that the patents expire and
the HTSUS numbers under which the accused products are imported. The
written submissions and proposed remedial orders must be filed no later
than close of business on July 10, 2015. Initial submissions are
limited to 125 pages, not including any attachments or exhibits related
to discussion of the public interest. Reply submissions must be filed
no later than the close of business on July 20, 2015. Reply submissions
are limited to 75 pages, not including any attachments or exhibits
related to discussion of the public interest. The parties may not
incorporate by reference their prior filings before the ALJ or the
Commission. 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 and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to section 210.4(f) of the Commission's Rules of Practice and
Procedure (19 CFR 210.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-613 REMAND'') in a prominent
place on the cover page and/or the first page. (See Handbook for
Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.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 must 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. A
redacted non-confidential version of the document must also be filed
simultaneously with any confidential filing. All non-confidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
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 25, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-16116 Filed 6-30-15; 8:45 am]
BILLING CODE 7020-02-P

37656 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Notices

follows: (a) One member appointed findings concerning whether there is a On February 13, 2009, InterDigital
among individuals recommended by the violation of section 337 of the Tariff Act moved for summary determination that
County Commission; (b) one member of 1930, as amended, 19 U.S.C. 1337 a domestic industry exists because its
appointed among individuals (‘‘section 337’’). licensing activities in the United States
recommended by the city council of Las satisfy the domestic industry
FOR FURTHER INFORMATION CONTACT:
Vegas, Nevada; (c) one member requirement under 19 U.S.C.
appointed among individuals Megan M. Valentine, Office of the 1337(a)(3)(C). On March 10, 2009, the
recommended by the city council of General Counsel, U.S. International presiding Administrative Law Judge
North Las Vegas, Nevada; (d) one Trade Commission, 500 E Street SW., (‘‘ALJ’’) issued an initial determination
member appointed among individuals Washington, DC 20436, telephone (202) (‘‘ID’’) (Order No. 42) granting the
recommended by the tribal council of 708–2301. Copies of non-confidential motion. On April 9, 2009, the
the Las Vegas Paiute Tribe; (e) one documents filed in connection with this Commission determined not to review
member of the conservation community investigation are or will be available for the ID. Notice (Apr. 9, 2009).
in southern Nevada; (f) one member inspection during official business On August 14, 2009, the ALJ issued
appointed among individuals hours (8:45 a.m. to 5:15 p.m.) in the his final ID, finding no violation of
recommended by Nellis Air Force Base; Office of the Secretary, U.S. section 337. In particular, he found that
(g) one member appointed among International Trade Commission, 500 E the asserted claims of the patents-in-suit
individuals recommended by the State Street SW., Washington, DC 20436, are not infringed and that they are not
of Nevada; (h) one member who resides telephone (202) 205–2000. General invalid. The ALJ further found no
in Clark County and has a background information concerning the Commission prosecution laches relating to the ‘004,
that reflects the purposes for which the may also be obtained by accessing its ‘966, and ‘847 patents and that the ‘579
Monument was established; and (i) two Internet server at http://www.usitc.gov. patent is not unenforceable.
members who reside in Clark County or The public record for this investigation On October 16, 2009, the Commission
adjacent counties, both of whom shall may be viewed on the Commission’s determined to review the final ID in
have experience in the field of electronic docket (EDIS) at http:// part. 74 FR 55068–69 (Oct. 26, 2009)
paleontology, obtained through higher edis.usitc.gov. Hearing-impaired (‘‘Notice of Review’’). In particular,
education, experience, or both. persons are advised that information on although the Commission affirmed the
Members will be appointed by the this matter can be obtained by ID’s determination of no violation of
Secretary for a term of three years. contacting the Commission’s TDD section 337 and terminated the
Certification Statement: I hereby terminal on (202) 205–1810. investigation, the Commission reviewed
certify that the establishment of the Tule and modified the ID’s claim
SUPPLEMENTARY INFORMATION: The construction of the term ‘‘access signal’’
Springs Fossil Beds National Monument Commission instituted Inv. No. 337–
Advisory Council is necessary and in found in the asserted claims of the ’847
TA–613 on September 11, 2007, based patent. The Commission also reviewed,
the public interest in connection with on a complaint filed by InterDigital
the performance of duties imposed on but took no position on, the ID’s
Communications Corp. of King of construction of the term ‘‘synchronize’’
the Department of the Interior under Prussia, Pennsylvania and InterDigital
Public Law 113–291, The Carl Levin found in the asserted claims of the ’847
Technology Corp. of Wilmington, patent. The Commission further
and Howard ‘‘Buck’’ McKeon National Delaware (collectively, ‘‘InterDigital’’)
Defense Authorization Act for Fiscal reviewed, but took no position on,
on August 7, 2007. 72 FR 51838 (Sept. validity with respect to all of the
Year 2015. 11, 2007). The complaint, as amended, asserted patents. The Commission did
Dated: June 16, 2015. alleged violations of section 337 of the not review the ID’s construction of the
Sally Jewell, Tariff Act of 1930 (19 U.S.C. 1337) in claim limitations ‘‘code’’ and ‘‘increased
Secretary of the Interior. the importation into the United States, power level’’ in the asserted claims of
[FR Doc. 2015–16109 Filed 6–30–15; 8:45 am] the sale for importation, and the sale the ’966 and ’847 patents.
BILLING CODE 4310–EE–P
within the United States after InterDigital timely appealed the
importation of certain 3G mobile Commission’s final determination of no
handsets and components thereof by violation of section 337 as to claims 1,
reason of infringement of certain claims 3, 8, 9, and 11 of the ’966 patent and
INTERNATIONAL TRADE
of U.S. Patent Nos. 7,117,004 (‘‘the ‘004 claim 5 of the ’847 patent to the Federal
COMMISSION
patent’’); 7,190,966 (‘‘the ‘966 patent’’); Circuit. Specifically, InterDigital
[Investigation No. 337–TA–613 Remand] 7,286,847 (‘‘the ‘847 patent’’); and appealed the final ID’s unreviewed
6,693,579 (‘‘the ‘579 patent). The Notice constructions of the claim limitations
Certain 3G Mobile Handsets and of Investigation named Nokia ‘‘code’’ and ‘‘increased power level’’ in
Components Thereof; Commission Corporation of Espoo, Finland (‘‘Nokia’’) the ’966 and ’847 patents. Respondent
Decision to Review in Part a Final and Nokia Inc. of Irving, Texas (‘‘Nokia Nokia, the intervenor on appeal, raised
Initial Determination on Remand; Inc.’’) as respondents. The Office of as an alternate ground of affirmance the
Request for Written Submissions Unfair Import Investigations (‘‘OUII’’) issue of whether the Commission
AGENCY: U.S. International Trade was named as a participating party. The correctly determined that InterDigital
Commission. Commission later amended the Notice has a license-based domestic industry.
ACTION: Notice. of Investigation to substitute On August 1, 2012, the Federal
complainant InterDigital Circuit reversed the Commission’s
tkelley on DSK3SPTVN1PROD with NOTICES

SUMMARY: Notice is hereby given that Communications, Inc. for InterDigital construction of the claim limitations
the U.S. International Trade Communications Corp. Notice (Feb. 15, ‘‘code’’ and ‘‘increased power level’’ in
Commission has determined to review 2015); Order No. 53 (Jan. 14, 2015). The the ’966 and ’847 patents, reversed the
in part the presiding administrative law Commission also later amended the Commission’s determination of non-
judge’s (‘‘ALJ’’) final initial Notice of Investigation to add Microsoft infringement as to the asserted claims of
determination on remand (‘‘RID’’) Mobile OY (‘‘MMO’’) as a party. 79 FR those patents, and remanded to the
issued on April 27, 2015, making 43068–69 (July 24, 2014). Commission for further proceedings.

VerDate Sep<11>2014 18:30 Jun 30, 2015 Jkt 235001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\01JYN1.SGM 01JYN1

Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Notices 37657

InterDigital Commc’ns, LLC v. Int’l patent hold-up by InterDigital, but that petitions for review, and the responses
Trade Comm’n., 690 F.3d 1318 (Fed. there is evidence of reverse hold-up by thereto, the Commission has determined
Cir. 2012). In particular, the Court the respondents. The ALJ found that the to review the RID in part.
rejected the final ID’s construction of public interest does not preclude Specifically, the Commission has
the ‘‘code’’ limitation as being limited to issuance of an exclusion order. The ALJ determined to review the RID’s findings
‘‘a spreading code or a portion of a did not issue a Recommended concerning the application of the
spreading code’’ and, instead, construed Determination on remedy or bonding. Commission’s prior construction in
‘‘code’’ as ‘‘a sequence of chips’’ and as On May 11, 2015, MMO and Nokia Certain Wireless Devices with 3G
‘‘broad enough to cover both a spreading Inc. (collectively, ‘‘MMO’’) filed a Capabilities and Components Thereof,
code and a non-spreading code.’’ Id. at petition for review of certain aspects of Inv. No. 337–TA–800 (‘‘the 800
1323–27. The Court affirmed the the RID, including infringement, investigation’’) and Certain Wireless
Commission’s determination that domestic industry, and the public Devices with 3G and/or 4G Capabilities
InterDigital has a domestic industry. Id. interest. Also on May 11, 2015, Nokia and Components Thereof, Inv. No. 337–
at 1329–30. Nokia subsequently filed a filed a petition for review of the RID TA–868 (‘‘the 868 investigation’’) of the
combined petition for panel rehearing with respect to infringement, domestic claim limitation ‘‘successively
and rehearing en banc on the issue of industry, and whether the Commission [transmits/transmitted] signals.’’ The
domestic industry. On January 10, 2013, has jurisdiction over Nokia following Commission has also determined to
the Court denied the petition and issued the sale of its handset business to MMO. review the RID with respect to whether
an additional opinion addressing Further on May 11, 2015, the the accused products satisfy the claim
several issues raised in Nokia’s petition Commission investigative attorney limitation ‘‘successively [transmits/
for rehearing. InterDigital Commc’ns, (‘‘IA’’) filed a petition for review of the transmitted] signals’’ as construed by
LLC v. Int’l Trade Comm’n, 707 F.3d RID’s finding of infringement. the Commission in the 800 and 868
1295 (Fed. Cir. 2013). The Court’s On May 19, 2015, InterDigital filed a investigations. The Commission has
mandate issued on January 17, 2013, response to MMO’s and the IA’s further determined to review the RID’s
returning jurisdiction to the petitions for review. Also on May 19, public interest findings.
Commission. 2015, MMO filed a response to the IA’s The Commission has determined not
On February 4, 2013, the Commission petition for review. Further on May 19, to review the remaining issues decided
issued an Order directing the parties to 2015, the IA filed a response to MMO’s in the RID.
submit comments regarding what and Nokia’s petitions for review. The parties are requested to brief their
further proceedings must be conducted On June 3, 2015, InterDigital filed a positions on the issues under review
to comply with the Federal Circuit’s statement on the public interest with reference to the applicable law and
remand. Commission Order (Feb. 4, pursuant to Commission Rule the evidentiary record. In connection
2013). On February 12, 2014, the 210.50(a)(4). Also on June 3, 2015, with its review, the Commission
Commission issued an Order and several non-parties filed responses to requests responses to the following
Opinion deciding certain aspects of the the Commission Notice issued on May questions:
investigation and remanding other 4, 2015, including: United States 1. Have Respondents waived any
aspects to the Chief ALJ. 79 FR 9277– Senator Robert Casey, Jr. of reliance on the application of the
79 (Feb. 18, 2014); see also Comm’n Op. Pennsylvania; Microsoft Corporation; Commission’s construction in the 800
Remanding Investigation (Feb. 12, Intel Corporation, Cisco Systems, Inc., and 868 investigations of the limitation
2014); Comm’n Order Remanding Dell Inc., and Hewlett-Packard ‘‘successively [transmits/transmitted]
Investigation (Feb. 12, 2014). On Company; Innovation Alliance; and signals?’’
February 24, 2014, Nokia petitioned for Ericsson Inc. See 80 FR 26295–96 (May 2. Do the Commission’s
reconsideration of the Commission’s 7, 2015). On June 24, 2015, United determinations in the 800 and/or 868
remand Order and Opinion. On March States Senator Patrick J. Toomey of investigation constitute an intervening
24, 2014, the Commission granted in Pennsylvania also filed a response to the change of controlling legal authority
part the petition for reconsideration and Commission’s May 4, 2015, notice. such that the Commission should apply
issued a revised remand notice, order, On June 15, 2015, Respondents filed the construction of ‘‘successively
and opinion. 79 FR 17571–73 (Mar. 28, a motion for leave to file a reply in [transmits/transmitted] signals’’ as
2014). support of their petition for review. found in those investigations in
On April 27, 2015, the ALJ issued the Respondents Microsoft Mobile Oy and determining infringement in this
RID. The ALJ found that the accused Nokia Inc.’s Motion for Leave to File investigation?
Nokia handsets meet the limitations Reply of Respondents Microsoft Mobile 3. What evidence exists in the record
‘‘generated using a same code’’ and ‘‘the Oy and Nokia Inc. in Support of Petition of this investigation with respect to
message being transmitted only for Review (June 15, 2015). On June 17, whether the accused products satisfy
subsequent to the subscriber unit 2015, the IA filed a response, opposing the ‘‘successively [transmits/
receiving the indication’’ recited in the Respondents’ motion. Office of Unfair transmitted] signals’’ limitation as
asserted claims of the ’966 and ’847 Import Investigation’s Response to construed by the Commission in the 800
patents. The ALJ also found that the Respondents Microsoft Mobile Oy and and 868 investigations?
pilot signal (P–CPICH) in the 3GPP Nokia, Inc.’s Motion for Leave to File 4. Please state and explain your
standard practiced by the accused Nokia Reply in Support of Petition to Review position on whether, for purposes of the
handsets satisfies the limitation (June 17, 2015). On June 19, 2015, Commission’s consideration of the
‘‘synchronize to the pilot signal’’ recited InterDigital filed a response, opposing statutory public interest factors,
tkelley on DSK3SPTVN1PROD with NOTICES

in the asserted claim of the ’847 patent. Respondents’ motion. InterDigital’s InterDigital has in effect asserted that
The ALJ further found that the currently Response to Respondents MMO and the patents in question are FRAND-
imported Nokia handsets, which Nokia, Inc.’s Motion for Leave to File a encumbered, standard-essential patents.
contain chips that were not previously Reply in Support of Petition for Review 5. Please state and explain your
adjudicated, infringe the asserted claims (June 19, 2015). The motion is denied. position on whether InterDigital has
of the ’966 and ’847 patents. The ALJ Having examined the record of this offered Respondents licensing terms
also found that there is no evidence of investigation, including the RID, the that reflect the value of its own patents.

VerDate Sep<11>2014 18:30 Jun 30, 2015 Jkt 235001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\01JYN1.SGM 01JYN1

Document Created: 2015-12-15 13:19:58
Document Modified: 2015-12-15 13:19:58

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
Contact		Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2301. 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 at http:// www.usitc.gov. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810.
FR Citation		80 FR 37656