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)

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, 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