81_FR_22385 81 FR 22312 - Certain Network Devices, Related Software and Components Thereof (I); Commission's Determination To Review In-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions

81 FR 22312 - Certain Network Devices, Related Software and Components Thereof (I); Commission's Determination To Review In-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 73 (April 15, 2016)

Page Range22312-22314
FR Document2016-08680

Notice is hereby given that the U.S. International Trade Commission has determined to review in-part the final initial determination (``ID'') issued by the presiding administrative law judge (``ALJ'') on February 2, 2016, finding a violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned investigation.

Federal Register, Volume 81 Issue 73 (Friday, April 15, 2016)
[Federal Register Volume 81, Number 73 (Friday, April 15, 2016)]
[Notices]
[Pages 22312-22314]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-08680]


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

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-944]


Certain Network Devices, Related Software and Components Thereof 
(I); Commission's Determination To Review In-Part a Final Initial 
Determination Finding a Violation of Section 337; 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 final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on February 2, 2016, finding a violation of section 337 of 
the Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned 
investigation.

FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Esq., Office 
of the General Counsel, U.S. International Trade Commission, 500 E 
Street SW., Washington, DC 20436, telephone (202) 205-2737. 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 this investigation 
on January 27, 2015, based on a complaint filed on behalf of Cisco 
Systems, Inc. (``Complainant'') of San Jose, California. 80 FR 4314-15 
(Jan. 27, 2015). The complaint was filed on December 19, 2014 and a 
supplement was filed on January 8, 2015. The complaint alleges 
violations 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 network devices, related software and 
components thereof by reason of infringement of certain claims of U.S. 
Patent No. 7,162,537 (``the '537 patent''); U.S. Patent No. 8,356,296 
(``the '296 patent''); U.S. Patent No. 7,290,164 (``the '164 patent''); 
U.S. Patent No. 7,340,597 (``the '597 patent''); U.S. Patent No. 
6,741,592 (``the '592 patent''); and U.S. Patent No. 7,200,145 (``the 
'145 patent''), and alleges that an industry in the United States 
exists as required by subsection (a)(2) of section 337. The '296 patent 
was previously terminated from the investigation. A Commission 
investigative attorney (``IA'') is participating in the investigation.
    On February 2, 2016, the ALJ issued his final ID finding a 
violation of section 337. The ID found a violation with respect to the 
'537, '592 and '145 patents. The ID found no violation for the '597 and 
'164 patents. On February 11, 2016, the ALJ issued his Recommended 
Determination on Remedy and Bonding (``RD'').
    On February 17, 2016, Cisco and Arista filed petitions for review. 
On March 3, 2016, the parties, including the IA, filed responses to the 
respective petitions for review.
    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 on the following 
issues: (1) Infringement of the '537, '597, '592 and '145 patents; (2) 
patentability of the '597, '592, and '145 patents under 35 U.S.C. 101; 
(3) the construction of ``said router configuration data managed by 
said database system and derived from configuration commands supplied 
by a user and executed by a router configuration subsystem before being 
stored in said database'' of claims 1, 10, and 19 of the '537 patent; 
(4) the construction of ``a change to a configuration''/``a change in 
configuration'' of claims 1, 39, and 71 of the '597 patent; (5) 
equitable estoppel; (6) laches; (7) the technical prong of domestic 
industry for the '537, '597, '592 and '145 patents; (8) economic prong 
of domestic industry; and (9) importation. To the extent any findings 
that the Commission is reviewing herein implicates the ID's findings 
for the '164 patent (e.g., intent to induce infringement), the 
Commission reviews those findings for the '164 patent.
    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 is interested in 
only responses to the following questions. For each argument presented, 
the parties' submissions should set forth whether such argument was 
presented to the ALJ and if so include citations to the record.



[[Page 22313]]


    1. Please provide a chart identifying for each asserted claim of 
the '537, '597, '592 and '145 patents: (1) The basis for Cisco's 
infringement allegation (i.e., direct infringement, contributory 
infringement, and/or induced infringement); (2) identification and 
description of each accused product [[ ]].
    2. If the Commission were to reverse the ID's finding [[ ]]?
    3. Did Arista waive its argument that it had a good-faith basis 
for its belief of noninfringement by failing to present the argument 
to the ALJ? See Arista Pet. at 33; Cisco Reply at 36. If not, did 
Arista demonstrate a good-faith belief of noninfringement?
    4. [[ ]]?
    5. Can evidence of [[ ]] establish intent to indirectly 
infringe? Please discuss relevant case law pertaining to specific 
intent [[ ]].
    6. [[ ]].
    7. [[ ]].
    8. Please discuss the relevant case law pertaining to whether [[ 
]] is ``material'' to establish contributory infringement for the 
'537, '592 and '145 patents. See e.g., Arista Pet. at 39-42, 67.
    9. Please discuss and cite any record evidence that demonstrates 
when Cisco came into possession of RX-2964C, CX-0479, and RX-4007C. 
[[ ]]?
    10. Please discuss whether the ``materially prejudiced'' 
requirement has been satisfied here for purposes of laches and 
equitable estoppel. In responding to this question, please address 
the prejudice demonstrated for each of the '537, '592, and '145 
patents independently and discuss the relevant case law in your 
response.
    11. Please discuss whether laches should be an available defense 
in a Section 337 investigation. In your response, please address how 
SCA Hygiene Products v. First Quality Baby Prod., 807 F.3d 1311 
(Fed. Cir. 2015) applies and any statutory support for your 
position.
    12. Does the ID's construction of ``a change to a 
configuration''/ ``a change in configuration'' in the asserted 
claims of the `537 patent to mean ``a change to the state of the 
device'' read out the phrase ``of the subsystem'' from the claims? 
Does this construction require that the change in state be to the 
subsystem or the device as a whole?
    13. Please discuss whether anything in the specification, 
prosecution history or claims limit what constitutes ``changes'' in 
the ``a change to a configuration''/ ``a change in configuration'' 
limitations of the asserted claims of the '597 patent. Please also 
address, if the Commission were to adopt the construction proposed 
by Arista, what would constitute a ``change''?
    14. Is the determination by [[ ]] that would meet the ``detect a 
change to a configuration of said subsystem''/ ``detect/[ing] a 
change in a configuration of a subsystem'' limitations of the 
asserted claims of the '597 patent under the ID's construction?
    15. Discuss whether the accused products meet the limitations of 
``detect a change to a configuration of said subsystem''/ ``detect/
[ing] a change in a configuration of a subsystem'' limitations of 
the asserted claims. Please address (1) the ID's construction, which 
requires detecting ``a change to the state of the device'', and (2) 
a construction that requires detecting a ``change to the state'' of 
the subsystem. See e.g., Arista Pet. at 85.
    16. With respect to the public interest factors, please discuss 
the facts in the record pertaining to the following: (1) Whether RFC 
5517 is a de facto industry standard; (2) whether the '592 and '145 
patents are essential to an industry standard; (3) whether licensing 
obligations apply to RFC 5517; (4) whether Cisco complied with any 
licensing obligations with respect to an industry standard; and (5) 
whether patent hold-up and/or patent hold-out have been demonstrated 
in the record of this investigation. See Respondent Arista's Public 
Interest Submission Under 210.50(a) at 4-5 (March 17, 2016). Provide 
an analysis as to how these issues relate to the statutory public 
interest factors of Section Sec.  337(d) and (f), 19 U.S.C. 1337(d), 
(f).
    17. For purposes of the analysis of the statutory public 
interest factors, describe in detail the specific course of conduct 
on the part of Cisco, or other factors, that would support a finding 
that F/RAND commitments have arisen with respect to the '592 and 
'145 patents here. How does the RFC 5517 document factor into the 
analysis since it specifically states that what is described with 
respect to the '592 and '145 patents is not a standard? Arista 
argues that Cisco ``never offered Arista a chance to license this de 
facto standard used by Cisco's other networking competitors.'' 
Respondent Arista's Public Interest Submission Under 210.50(a) at 5. 
Describe in detail any attempts that Arista made to license the '592 
and '145 patents from Cisco. Please describe Cisco's response to 
these attempts.

    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. When 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 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 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 persons 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. The complainant and the IA are also requested to 
submit proposed remedial orders for the Commission's consideration.
    Complainant is also requested to state the date that the asserted 
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 products at issue in this investigation. The 
written submissions and proposed remedial orders must be filed no later 
than close of business on Monday, April 25, 2016. Reply submissions 
must be filed no later than the close of business on Thursday, May 5, 
2016. No further submissions on these issues will be permitted unless 
otherwise ordered by the Commission. The page limit for the parties' 
initial submissions is 125 pages. The parties

[[Page 22314]]

reply submissions, if any, are limited to 75 pages.
    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-944'') 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 the 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: April 11, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-08680 Filed 4-14-16; 8:45 am]
 BILLING CODE 7020-02-P



                                                    22312                            Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices

                                                    provided in section 207.24 of the                       INTERNATIONAL TRADE                                   Patent No. 7,162,537 (‘‘the ’537 patent’’);
                                                    Commission’s rules, and posthearing                     COMMISSION                                            U.S. Patent No. 8,356,296 (‘‘the ’296
                                                    briefs, which must conform with the                                                                           patent’’); U.S. Patent No. 7,290,164 (‘‘the
                                                                                                            [Investigation No. 337–TA–944]
                                                    provisions of section 207.25 of the                                                                           ’164 patent’’); U.S. Patent No. 7,340,597
                                                    Commission’s rules. The deadline for                    Certain Network Devices, Related                      (‘‘the ’597 patent’’); U.S. Patent No.
                                                    filing posthearing briefs is August 11,                 Software and Components Thereof (I);                  6,741,592 (‘‘the ’592 patent’’); and U.S.
                                                    2016. In addition, any person who has                   Commission’s Determination To                         Patent No. 7,200,145 (‘‘the ’145 patent’’),
                                                    not entered an appearance as a party to                 Review In-Part a Final Initial                        and alleges that an industry in the
                                                    the investigations may submit a written                 Determination Finding a Violation of                  United States exists as required by
                                                    statement of information pertinent to                   Section 337; Request for Written                      subsection (a)(2) of section 337. The
                                                    the subject of the investigations,                      Submissions                                           ’296 patent was previously terminated
                                                    including statements of support or                                                                            from the investigation. A Commission
                                                                                                            AGENCY: U.S. International Trade                      investigative attorney (‘‘IA’’) is
                                                    opposition to the petition, on or before
                                                                                                            Commission.                                           participating in the investigation.
                                                    August 11, 2016. On August 29, 2016,                                                                             On February 2, 2016, the ALJ issued
                                                                                                            ACTION: Notice.
                                                    the Commission will make available to                                                                         his final ID finding a violation of section
                                                    parties all information on which they                   SUMMARY:     Notice is hereby given that              337. The ID found a violation with
                                                    have not had an opportunity to                          the U.S. International Trade                          respect to the ’537, ’592 and ’145
                                                    comment. Parties may submit final                       Commission has determined to review                   patents. The ID found no violation for
                                                    comments on this information on or                      in-part the final initial determination               the ’597 and ’164 patents. On February
                                                    before August 31, 2016, but such final                  (‘‘ID’’) issued by the presiding                      11, 2016, the ALJ issued his
                                                    comments must not contain new factual                   administrative law judge (‘‘ALJ’’) on                 Recommended Determination on
                                                    information and must otherwise comply                   February 2, 2016, finding a violation of              Remedy and Bonding (‘‘RD’’).
                                                    with section 207.30 of the Commission’s                 section 337 of the Tariff Act of 1930, 19                On February 17, 2016, Cisco and
                                                    rules. All written submissions must                     U.S.C. 1337, in the above-captioned                   Arista filed petitions for review. On
                                                    conform with the provisions of section                  investigation.                                        March 3, 2016, the parties, including the
                                                    201.8 of the Commission’s rules; any                                                                          IA, filed responses to the respective
                                                                                                            FOR FURTHER INFORMATION CONTACT:
                                                    submissions that contain BPI must also                                                                        petitions for review.
                                                                                                            Amanda Pitcher Fisherow, Esq., Office
                                                    conform with the requirements of                                                                                 Having examined the record of this
                                                                                                            of the General Counsel, U.S.                          investigation, including the final ID, the
                                                    sections 201.6, 207.3, and 207.7 of the                 International Trade Commission, 500 E
                                                    Commission’s rules. The Commission’s                                                                          petitions for review, and the responses
                                                                                                            Street SW., Washington, DC 20436,                     thereto, the Commission has determined
                                                    Handbook on E-Filing, available on the                  telephone (202) 205–2737. Copies of
                                                    Commission’s Web site at http://                                                                              to review the final ID on the following
                                                                                                            non-confidential documents filed in                   issues: (1) Infringement of the ’537, ’597,
                                                    edis.usitc.gov, elaborates upon the                     connection with this investigation are or
                                                    Commission’s rules with respect to                                                                            ’592 and ’145 patents; (2) patentability
                                                                                                            will be available for inspection during               of the ’597, ’592, and ’145 patents under
                                                    electronic filing.                                      official business hours (8:45 a.m. to 5:15            35 U.S.C. 101; (3) the construction of
                                                       Additional written submissions to the                p.m.) in the Office of the Secretary, U.S.            ‘‘said router configuration data managed
                                                    Commission, including requests                          International Trade Commission, 500 E                 by said database system and derived
                                                    pursuant to section 201.12 of the                       Street SW., Washington, DC 20436,                     from configuration commands supplied
                                                    Commission’s rules, shall not be                        telephone (202) 205–2000. General                     by a user and executed by a router
                                                    accepted unless good cause is shown for                 information concerning the Commission                 configuration subsystem before being
                                                    accepting such submissions, or unless                   may also be obtained by accessing its                 stored in said database’’ of claims 1, 10,
                                                    the submission is pursuant to a specific                Internet server at http://www.usitc.gov.              and 19 of the ’537 patent; (4) the
                                                    request by a Commissioner or                            The public record for this investigation              construction of ‘‘a change to a
                                                    Commission staff.                                       may be viewed on the Commission’s                     configuration’’/‘‘a change in
                                                                                                            electronic docket (EDIS) at http://                   configuration’’ of claims 1, 39, and 71 of
                                                       In accordance with sections 201.16(c)                edis.usitc.gov. Hearing-impaired
                                                    and 207.3 of the Commission’s rules,                                                                          the ’597 patent; (5) equitable estoppel;
                                                                                                            persons are advised that information on               (6) laches; (7) the technical prong of
                                                    each document filed by a party to the                   this matter can be obtained by                        domestic industry for the ’537, ’597,
                                                    investigations must be served on all                    contacting the Commission’s TDD                       ’592 and ’145 patents; (8) economic
                                                    other parties to the investigations (as                 terminal on (202) 205–1810.                           prong of domestic industry; and (9)
                                                    identified by either the public or BPI                  SUPPLEMENTARY INFORMATION: The                        importation. To the extent any findings
                                                    service list), and a certificate of service             Commission instituted this investigation              that the Commission is reviewing herein
                                                    must be timely filed. The Secretary will                on January 27, 2015, based on a                       implicates the ID’s findings for the ’164
                                                    not accept a document for filing without                complaint filed on behalf of Cisco                    patent (e.g., intent to induce
                                                    a certificate of service.                               Systems, Inc. (‘‘Complainant’’) of San                infringement), the Commission reviews
                                                      Authority: These investigations are being             Jose, California. 80 FR 4314–15 (Jan. 27,             those findings for the ’164 patent.
                                                    conducted under authority of title VII of the           2015). The complaint was filed on                        The parties are requested to brief their
                                                    Tariff Act of 1930; this notice is published            December 19, 2014 and a supplement                    positions on the issues under review
                                                                                                            was filed on January 8, 2015. The                     with reference to the applicable law and
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                    pursuant to section 207.21 of the
                                                    Commission’s rules.                                     complaint alleges violations of section               the evidentiary record. In connection
                                                      By order of the Commission.                           337 based upon the importation into the               with its review, the Commission is
                                                      Issued: April 11, 2016.                               United States, the sale for importation,              interested in only responses to the
                                                                                                            and the sale within the United States                 following questions. For each argument
                                                    Lisa R. Barton,
                                                                                                            after importation of certain network                  presented, the parties’ submissions
                                                    Secretary to the Commission.                            devices, related software and                         should set forth whether such argument
                                                    [FR Doc. 2016–08650 Filed 4–14–16; 8:45 am]             components thereof by reason of                       was presented to the ALJ and if so
                                                    BILLING CODE 7020–02–P                                  infringement of certain claims of U.S.                include citations to the record.


                                               VerDate Sep<11>2014   17:27 Apr 14, 2016   Jkt 238001   PO 00000   Frm 00105   Fmt 4703   Sfmt 4703   E:\FR\FM\15APN1.SGM   15APN1


                                                                                     Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices                                           22313

                                                       1. Please provide a chart identifying for            subsystem’’ limitations of the asserted               receiving written submissions that
                                                    each asserted claim of the ’537, ’597, ’592             claims. Please address (1) the ID’s                   address the aforementioned public
                                                    and ’145 patents: (1) The basis for Cisco’s             construction, which requires detecting ‘‘a            interest factors in the context of this
                                                    infringement allegation (i.e., direct                   change to the state of the device’’, and (2) a
                                                                                                            construction that requires detecting a
                                                                                                                                                                  investigation.
                                                    infringement, contributory infringement,
                                                    and/or induced infringement); (2)                       ‘‘change to the state’’ of the subsystem. See            If a party seeks exclusion of an article
                                                    identification and description of each                  e.g., Arista Pet. at 85.                              from entry into the United States for
                                                    accused product [[                             ]].         16. With respect to the public interest            purposes other than entry for
                                                       2. If the Commission were to reverse the             factors, please discuss the facts in the record       consumption, the party should so
                                                    ID’s finding [[                        ]]?              pertaining to the following: (1) Whether RFC          indicate and provide information
                                                       3. Did Arista waive its argument that it had         5517 is a de facto industry standard; (2)             establishing that activities involving
                                                    a good-faith basis for its belief of                    whether the ’592 and ’145 patents are
                                                                                                            essential to an industry standard; (3) whether
                                                                                                                                                                  other types of entry either are adversely
                                                    noninfringement by failing to present the
                                                    argument to the ALJ? See Arista Pet. at 33;             licensing obligations apply to RFC 5517; (4)          affecting it or likely to do so. For
                                                    Cisco Reply at 36. If not, did Arista                   whether Cisco complied with any licensing             background, see Certain Devices for
                                                    demonstrate a good-faith belief of                      obligations with respect to an industry               Connecting Computers via Telephone
                                                    noninfringement?                                        standard; and (5) whether patent hold-up              Lines, Inv. No. 337–TA–360, USITC
                                                       4. [[                       ]]?                      and/or patent hold-out have been                      Pub. No. 2843 (December 1994)
                                                       5. Can evidence of [[                          ]]    demonstrated in the record of this                    (Commission Opinion).
                                                    establish intent to indirectly infringe? Please         investigation. See Respondent Arista’s Public
                                                                                                            Interest Submission Under 210.50(a) at 4–5               If the Commission orders some form
                                                    discuss relevant case law pertaining to
                                                                                                            (March 17, 2016). Provide an analysis as to           of remedy, the U.S. Trade
                                                    specific intent [[                         ]].
                                                       6. [[                       ]].                      how these issues relate to the statutory public       Representative, as delegated by the
                                                       7. [[                       ]].                      interest factors of Section § 337(d) and (f), 19      President, has 60 days to approve or
                                                       8. Please discuss the relevant case law              U.S.C. 1337(d), (f).                                  disapprove the Commission’s action.
                                                    pertaining to whether [[                           ]]      17. For purposes of the analysis of the            See Presidential Memorandum of July
                                                    is ‘‘material’’ to establish contributory               statutory public interest factors, describe in        21, 2005, 70 FR 43251 (July 26, 2005).
                                                    infringement for the ’537, ’592 and ’145                detail the specific course of conduct on the
                                                                                                            part of Cisco, or other factors, that would
                                                                                                                                                                  During this period, the subject articles
                                                    patents. See e.g., Arista Pet. at 39–42, 67.                                                                  would be entitled to enter the United
                                                       9. Please discuss and cite any record                support a finding that F/RAND commitments
                                                                                                            have arisen with respect to the ’592 and ’145         States under bond, in an amount
                                                    evidence that demonstrates when Cisco came
                                                                                                            patents here. How does the RFC 5517                   determined by the Commission and
                                                    into possession of RX–2964C, CX–0479, and
                                                    RX–4007C. [[                          ]]?
                                                                                                            document factor into the analysis since it            prescribed by the Secretary of the
                                                                                                            specifically states that what is described with       Treasury. The Commission is therefore
                                                       10. Please discuss whether the ‘‘materially
                                                                                                            respect to the ’592 and ’145 patents is not a         interested in receiving submissions
                                                    prejudiced’’ requirement has been satisfied
                                                                                                            standard? Arista argues that Cisco ‘‘never            concerning the amount of the bond that
                                                    here for purposes of laches and equitable
                                                                                                            offered Arista a chance to license this de
                                                    estoppel. In responding to this question,
                                                                                                            facto standard used by Cisco’s other
                                                                                                                                                                  should be imposed if a remedy is
                                                    please address the prejudice demonstrated                                                                     ordered.
                                                                                                            networking competitors.’’ Respondent
                                                    for each of the ’537, ’592, and ’145 patents                                                                     Written Submissions: The parties to
                                                                                                            Arista’s Public Interest Submission Under
                                                    independently and discuss the relevant case                                                                   the investigation are requested to file
                                                                                                            210.50(a) at 5. Describe in detail any attempts
                                                    law in your response.
                                                       11. Please discuss whether laches should
                                                                                                            that Arista made to license the ’592 and ’145         written submissions on the issues
                                                                                                            patents from Cisco. Please describe Cisco’s           identified in this notice. Parties to the
                                                    be an available defense in a Section 337                response to these attempts.
                                                    investigation. In your response, please                                                                       investigation, interested government
                                                    address how SCA Hygiene Products v. First                  In connection with the final                       agencies, and any other interested
                                                    Quality Baby Prod., 807 F.3d 1311 (Fed. Cir.            disposition of this investigation, the                persons are encouraged to file written
                                                    2015) applies and any statutory support for             Commission may (1) issue an order that                submissions on the issues of remedy,
                                                    your position.                                          could result in the exclusion of the                  the public interest, and bonding. Such
                                                       12. Does the ID’s construction of ‘‘a change         subject articles from entry into the                  submissions should address the
                                                    to a configuration’’/ ‘‘a change in                                                                           recommended determination by the ALJ
                                                                                                            United States, and/or (2) issue one or
                                                    configuration’’ in the asserted claims of the
                                                    ‘537 patent to mean ‘‘a change to the state of          more cease and desist orders that could               on remedy and bonding. The
                                                    the device’’ read out the phrase ‘‘of the               result in the respondent(s) being                     complainant and the IA are also
                                                    subsystem’’ from the claims? Does this                  required to cease and desist from                     requested to submit proposed remedial
                                                    construction require that the change in state           engaging in unfair acts in the                        orders for the Commission’s
                                                    be to the subsystem or the device as a whole?           importation and sale of such articles.                consideration.
                                                       13. Please discuss whether anything in the           Accordingly, the Commission is                           Complainant is also requested to state
                                                    specification, prosecution history or claims            interested in receiving written                       the date that the asserted patents expire
                                                    limit what constitutes ‘‘changes’’ in the ‘‘a           submissions that address the form of                  and the HTSUS numbers under which
                                                    change to a configuration’’/ ‘‘a change in
                                                                                                            remedy, if any, that should be ordered.               the accused products are imported.
                                                    configuration’’ limitations of the asserted
                                                    claims of the ’597 patent. Please also address,         When the Commission contemplates                      Complainant is further requested to
                                                    if the Commission were to adopt the                     some form of remedy, it must consider                 supply the names of known importers of
                                                    construction proposed by Arista, what would             the effects of that remedy upon the                   the products at issue in this
                                                    constitute a ‘‘change’’?                                public interest. The factors the                      investigation. The written submissions
                                                       14. Is the determination by [[                       Commission
                                                                                                                 ]]        will consider include the              and proposed remedial orders must be
                                                    that would meet the ‘‘detect a change to a              effect that an exclusion order and/or                 filed no later than close of business on
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                                                    configuration of said subsystem’’/ ‘‘detect/            cease and desist orders would have on                 Monday, April 25, 2016. Reply
                                                    [ing] a change in a configuration of a                  (1) the public health and welfare, (2)                submissions must be filed no later than
                                                    subsystem’’ limitations of the asserted claims
                                                                                                            competitive conditions in the U.S.                    the close of business on Thursday, May
                                                    of the ’597 patent under the ID’s
                                                    construction?                                           economy, (3) U.S. production of articles              5, 2016. No further submissions on
                                                       15. Discuss whether the accused products             that are like or directly competitive with            these issues will be permitted unless
                                                    meet the limitations of ‘‘detect a change to a          those that are subject to investigation,              otherwise ordered by the Commission.
                                                    configuration of said subsystem’’/ ‘‘detect/            and (4) U.S. consumers. The                           The page limit for the parties’ initial
                                                    [ing] a change in a configuration of a                  Commission is therefore interested in                 submissions is 125 pages. The parties


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                                                    22314                            Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices

                                                    reply submissions, if any, are limited to               Administration (DEA) grants Mylan                           DEPARTMENT OF JUSTICE
                                                    75 pages.                                               Technologies, Inc. registration as an
                                                       Persons filing written submissions                   importer of those controlled substances.                    [OMB Number 1117–0038]
                                                    must file the original document
                                                    electronically on or before the deadlines               SUPPLEMENTARY INFORMATION:     By notice                    Agency Information Collection
                                                    stated above and submit 8 true paper                    dated November 27, 2015, and                                Activities; Proposed eCollection,
                                                    copies to the Office of the Secretary by                published in the Federal Register on                        eComments Requested; Extension
                                                    noon the next day pursuant to section                   December 3, 2015, 80 FR 75688, Mylan                        Without Change of a Previously
                                                    210.4(f) of the Commission’s Rules of                   Technologies, Inc., 110 Lake Street,                        Approved Collection Reporting and
                                                    Practice and Procedure (19 CFR                          Saint Albans, Vermont 05478 applied to                      Recordkeeping for Digital Certificates
                                                    210.4(f)). Submissions should refer to                  be registered as an importer of certain                     AGENCY:  Drug Enforcement
                                                    the investigation number (‘‘Inv. No.                    basic classes of controlled substances.                     Administration, Department of Justice.
                                                    337–TA–944’’) in a prominent place on                   No comments or objections were
                                                                                                                                                                        ACTION: 30-Day notice.
                                                    the cover page and/or the first page. (See              submitted for this notice.
                                                    Handbook for Electronic Filing                            The DEA has considered the factors in                     SUMMARY:   The Department of Justice
                                                    Procedures, http://www.usitc.gov/                       21 U.S.C. 823, 952(a) and 958(a) and                        (DOJ), Drug Enforcement
                                                    secretary/fed_reg_notices/rules/                        determined that the registration of                         Administration (DEA), will be
                                                    handbook_on_electronic_filing.pdf).                                                                                 submitting the following information
                                                                                                            Mylan Technologies, Inc. to import the
                                                    Persons with questions regarding filing                                                                             collection request to the Office of
                                                                                                            basic classes of controlled substances is
                                                    should contact the Secretary (202–205–                                                                              Management and Budget (OMB) for
                                                                                                            consistent with the public interest and
                                                    2000).                                                                                                              review and approval in accordance with
                                                       Any person desiring to submit a                      with United States obligations under
                                                                                                            international treaties, conventions, or                     the Paperwork Reduction Act of 1995.
                                                    document to the Commission in                                                                                       This proposed information collection
                                                    confidence must request confidential                    protocols in effect on May 1, 1971. The
                                                                                                            DEA investigated the company’s                              was previously published in the Federal
                                                    treatment. All such requests should be                                                                              Register at 81 FR 7592, on February 12,
                                                    directed to the Secretary to the                        maintenance of effective controls
                                                                                                                                                                        2016, allowing for a 60 day comment
                                                    Commission and must include a full                      against diversion by inspecting and
                                                                                                                                                                        period.
                                                    statement of the reasons why the                        testing the company’s physical security
                                                    Commission should grant such                            systems, verifying the company’s                            DATES:  Comments are encouraged and
                                                    treatment. See 19 CFR 201.6. Documents                  compliance with state and local laws,                       will be accepted for an additional 30
                                                    for which confidential treatment by the                 and reviewing the company’s                                 days until May 16, 2016.
                                                    Commission is properly sought will be                   background and history.                                     FOR FURTHER INFORMATION CONTACT: If
                                                    treated accordingly. A redacted non-                                                                                you have comments on the estimated
                                                                                                              Therefore, pursuant to 21 U.S.C.
                                                    confidential version of the document                                                                                public burden or associated response
                                                                                                            952(a) and 958(a), and in accordance
                                                    must also be filed simultaneously with                                                                              time, suggestions, or need a copy of the
                                                                                                            with 21 CFR 1301.34, the above-named
                                                    the any confidential filing. All non-                                                                               proposed information collection
                                                                                                            company is granted registration as an                       instrument with instructions or
                                                    confidential written submissions will be
                                                                                                            importer of the following basic classes                     additional information, please contact
                                                    available for public inspection at the
                                                    Office of the Secretary and on EDIS.                    of controlled substances:                                   Barbara J. Boockholdt, Office of
                                                       The authority for the Commission’s                                                                               Diversion Control, Drug Enforcement
                                                                                                                    Controlled substance                     Schedule   Administration; Mailing Address: 8701
                                                    determination is contained in section
                                                    337 of the Tariff Act of 1930, as                       Methylphenidate (1724) ................         II
                                                                                                                                                                        Morrissette Drive, Springfield, Virginia
                                                    amended (19 U.S.C. 1337), and in Part                   Fentanyl (9801) ............................    II
                                                                                                                                                                        22152; Telephone: (202) 598–6812.
                                                    210 of the Commission’s Rules of                                                                                    Written comments and/or suggestions
                                                    Practice and Procedure (19 CFR part                                                                                 can also be directed to the Office of
                                                    210).                                                      The company plans to import the                          Management and Budget, Office of
                                                                                                            listed controlled substances in finished                    Information and Regulatory Affairs,
                                                      By order of the Commission.
                                                                                                            dosage form (FDF) from foreign sources                      Attention Department of Justice Desk
                                                      Issued: April 11, 2016.                               for analytical testing and clinical trials                  Officer, Washington, DC 20503 or sent
                                                    Lisa R. Barton,                                         in which the foreign FDF will be                            to OIRA_submissions@omb.eop.gov.
                                                    Secretary to the Commission.                            compared to the company’s own                               SUPPLEMENTARY INFORMATION: Written
                                                    [FR Doc. 2016–08680 Filed 4–14–16; 8:45 am]             domestically-manufactured FDF. This                         comments and suggestions from the
                                                    BILLING CODE 7020–02–P                                  analysis is required to allow the                           public and affected agencies concerning
                                                                                                            company to export domestically-                             the proposed collection of information
                                                                                                            manufactured FDF to foreign markets.                        are encouraged. Your comments should
                                                    DEPARTMENT OF JUSTICE                                                                                               address one or more of the following
                                                                                                              Dated: April 11, 2016.
                                                                                                            Louis J. Milione,
                                                                                                                                                                        four points:
                                                    Drug Enforcement Administration
                                                                                                            Deputy Assistant Administrator.                             —Evaluate whether the proposed
                                                    [Docket No. DEA–392]                                                                                                  collection of information is necessary
                                                                                                            [FR Doc. 2016–08846 Filed 4–14–16; 8:45 am]
                                                                                                                                                                          for the proper performance of the
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                                                    Importer of Controlled Substances                       BILLING CODE 4410–09–P
                                                                                                                                                                          functions of the agency, including
                                                    Registration: Mylan Technologies, Inc.                                                                                whether the information will have
                                                    ACTION:   Notice of registration.                                                                                     practical utility;
                                                                                                                                                                        —Evaluate the accuracy of the agency’s
                                                    SUMMARY:   Mylan Technologies, Inc.                                                                                   estimate of the burden of the
                                                    applied to be registered as an importer                                                                               proposed collection of information,
                                                    of certain basic classes of controlled                                                                                including the validity of the
                                                    substances. The Drug Enforcement                                                                                      methodology and assumptions used;


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Document Created: 2016-04-15 00:54:43
Document Modified: 2016-04-15 00:54:43
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
ContactAmanda Pitcher Fisherow, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2737. 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 Citation81 FR 22312 

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