80 FR 76038 - Certain Wireless Headsets; Commission Determination To Review an Initial Determination Granting Respondents' Motion for Summary Determination of Patent Invalidity Due to Indefiniteness

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 80, Issue 234 (December 7, 2015)

Notice is hereby given that the U.S. International Trade Commission has determined to review an initial determination (``ID'') (Order No. 17) granting respondents' motion for summary determination of patent invalidity due to indefiniteness.

[Federal Register Volume 80, Number 234 (Monday, December 7, 2015)]
[Notices]
[Pages 76038-76040]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-30734]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-943]


Certain Wireless Headsets; Commission Determination To Review an 
Initial Determination Granting Respondents' Motion for Summary 
Determination of Patent Invalidity Due to Indefiniteness

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review an initial determination (``ID'') 
(Order No. 17) granting respondents' motion for summary determination 
of patent invalidity due to indefiniteness.

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.

[[Page 76039]]

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 (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 this investigation 
on January 13, 2015, based on a complaint filed by One-E-Way, Inc. of 
Pasadena, California (``One-E-Way''). 80 FR 1663 (Jan. 13, 2015). The 
complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. Sec.  1337, in the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain wireless headsets by reason of 
infringement of certain claims of U.S. Patent Nos. 7,865,258 (``the 
'258 patent'') and 8,131,391 (``the '391 patent''). Id. The notice of 
investigation named several respondents, including Sony Corporation of 
Tokyo, Japan; Sony Corporation of America of New York, New York; and 
Sony Electronics, Inc. of San Diego, California (collectively, 
``Sony''); Beats Electronics, LLC of Culver City, California and Beats 
Electronics International Ltd. of Dublin, Ireland (collectively, 
``Beats''); Sennheiser Electronic GmbH & Co. KG of Wedemark, Germany 
and Sennheiser Electronic Corporation of Old Lyme, Connecticut 
(collectively, ``Sennheiser''); BlueAnt Wireless Pty, Ltd. of Richmond, 
Australia and BlueAnt Wireless, Inc. of Chicago, Illinois 
(collectively, ``BlueAnt''); Creative Technology Ltd. of Singapore and 
Creative Labs, Inc. of Milpitas, California (collectively, ``Creative 
Labs''); and GN Netcom A/S d/b/a Jabra of Ballerup, Denmark (``GN 
Netcom''). Id. The Office of Unfair Import Investigations (OUII) also 
was named as a party to the investigation. Id. The Commission 
previously terminated the investigation with respect to Beats and 
Sennheiser. See Notice (Apr. 29, 2015); Notice (June 11, 2015). The 
Commission also previously terminated the investigation with respect to 
certain claims of the '258 and '391 patents. See Notice (May 26, 2015); 
Notice (Aug. 26, 2015).
    On August 10, 2015, respondents Sony, BlueAnt, Creative Labs, and 
GN Netcom (collectively, ``Respondents'') filed a motion for summary 
determination that asserted claim 8 of the '258 patent and asserted 
claims 1, 3-6, and 10 of the '391 patent are invalid as indefinite 
under 35 U.S.C. 112, ] 2. On August 20, 2015, the Commission 
investigative attorney (``IA'') filed a response in support of the 
motion. Also on August 20, 2015, One-E-Way filed an opposition to the 
motion. On August 27, 2015, Respondents moved for leave to file a reply 
to One-E-Way's opposition, which the presiding administrative law judge 
(``ALJ'') granted that same day. See Order No. 16 (Aug. 27, 2015).
    On September 21, 2015, the ALJ issued the subject initial 
determination (``ID''), granting Respondents' motion for summary 
determination that all of the asserted claims of the '258 and '391 
patents are invalid as indefinite under 35 U.S.C. 112, ] 2 and 
terminating the investigation with a finding of no violation of section 
337.
    On October 2, 2015, One-E-Way filed a petition for review of the 
subject ID. On October 9, 2015, Respondents and the IA each filed 
responses to the petition.
    Having examined the record of this investigation, including the 
subject ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the subject ID.
    In connection with its review, the Commission requests responses to 
the following questions:
    1. Please point to the specific areas in the record where the 
putative indefiniteness of the clause ``virtually free from 
interference'' was a significant topic of substantive discussion among 
the parties and the ALJ.
    2. Please explain how the clause ``virtually free from 
interference'' is material to a position any party has taken in this 
Investigation with respect to validity under 35 U.S.C. 102, 103, or 
112(a) (formerly 112 ]1), or infringement under section 271. Please 
provide citations to specific areas in the record (including document 
name and page number) in which this materiality was raised or 
discussed.
    3. Please explain how the materiality discussed in Q2 turns on the 
degree of freedom from interference. Please provide citations to 
specific areas in the record (including document name and page number) 
in which this turning was raised or discussed.
    4. Please explain in detail what lead to the difference in outcomes 
on the issue of indefiniteness under 35 U.S.C. 112(b) (formerly 112 ]2) 
of the Federal Circuit decisions in Interval Licensing LLC v. AOL, 
Inc., 766 F.3d 1364, 1369-74 (Fed. Cir. 2014) and DDR Holdings LLC v. 
Hotelscom LP, 773 F.3d 1245, 1260-61 (Fed. Cir. 2014). In these two 
cases, to what extent did the indefiniteness determinations turn on the 
materiality of the potentially indefinite clauses to other arguments 
that had been raised in those cases regarding validity under 35 U.S.C. 
102, 103, or 112(a) (formerly 112 ]1), or infringement under section 
271?
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues identified in this notice. 
The written submissions must be filed no later than close of business 
on December 11, 2015. Initial submissions are limited to 30 pages. 
Reply submissions must be filed no later than the close of business on 
December 18, 2015. Reply submissions are limited to 15 pages. 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-943'') 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).


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    By order of the Commission.

    Issued: December 1, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-30734 Filed 12-4-15; 8:45 am]
BILLING CODE 7020-02-P