82 FR 12844 - Certain Network Devices, Related Software and Components Thereof (II); Commission Decision To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 43 (March 7, 2017)

Page Range		12844-12847
FR Document		2017-04343

Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's (``ALJ'') final initial determination (``Final ID'') issued on December 9, 2016, finding a violation of section 337 of the Tariff Act of 1930, as amended, (``section 337'') in the above-captioned investigation.

Federal Register, Volume 82 Issue 43 (Tuesday, March 7, 2017)

[Federal Register Volume 82, Number 43 (Tuesday, March 7, 2017)]
[Notices]
[Pages 12844-12847]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-04343]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-945]

Certain Network Devices, Related Software and Components Thereof
(II); Commission Decision 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.

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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the presiding
administrative law judge's (``ALJ'') final initial determination
(``Final ID'') issued on December 9, 2016, finding a violation of
section 337 of the Tariff Act of 1930, as amended, (``section 337'') in
the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-2301. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its Internet server at https://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://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 by Cisco Systems, Inc.
of San Jose, California (``Cisco''). 80 FR 4313-14 (Jan. 27, 2015). The
Complaint alleges violations of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, in the sale for importation, importation,
and 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 Nos. 7,023,853;
6,377,577; 7,460,492; 7,061,875; 7,224,668; and 8,051,211. The
Complaint further alleges the existence of a domestic industry. The
Commission's Notice of Investigation named Arista Networks, Inc. of
Santa Clara, California (``Arista'') as respondent. The Office of
Unfair Import Investigations (``OUII'') was also named as a party to
the investigation. The Commission previously terminated the
investigation in part as to certain claims of the asserted patents.
Order No. 38 (Oct. 27, 2015), unreviewed Notice (Nov. 18, 2015); Order
No. 47 (Nov. 9, 2015), unreviewed Notice (Dec. 1, 2015).
On December 9, 2016, the ALJ issued her Final ID, finding a
violation of section 337 with respect to claims 1, 7, 9, 10, and 15 of
the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of
the '668 patent. The ALJ found no violation of section 337 with respect
to claim 2 of the '577 patent; claims 46 and 63 of the '853 patent;
claims 1, 3, and 4 of the '492 patent; claims 1-4, and 10 of the '875
patent; and claims 2, 6, 13, and 17 of the '211 patent.
In particular, the Final ID finds that Cisco has shown by a
preponderance of the evidence that the accused products infringe
asserted claims 1, 7, 9, 10, and 15 of the '577 patent; and asserted
claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of the '668 patent. The
Final ID finds that Cisco has failed to show by a preponderance of the
evidence that the accused products infringe asserted claim 2 of the
'577 patent; asserted claims 46 and 63 of the '853 patent; asserted
claims 1, 3, and 4 of the '492 patent; asserted claims 1-4, and 10 of
the '875 patent; and asserted claims 2, 6, 13, and 17 of the '211
patent.
The Final ID also finds that assignor estoppel bars Arista from
asserting that the '577 and '853 patents are invalid. The Final ID
finds, however, that if assignor estoppel did not apply, Arista has
shown by clear and convincing evidence that claims 1, 7, 9, 10, and 15
of the '577 patent and claim 46 of the '853 patent are invalid as
anticipated by U.S. Patent No. 5,920,886 (``Feldmeier''). The Final ID
further finds that Arista has failed to show by clear and convincing
evidence that any of the remaining asserted claims are invalid. The
Final ID also finds that Arista has not proven by clear and convincing
evidence that Cisco's patent claims are barred by equitable estoppel,
waiver, implied license, laches, unclean hands, or patent misuse.
The Final ID finds that Cisco has satisfied the economic prong of
the domestic industry requirement for all of the patents-in-suit
pursuant to 19 U.S.C. 337(A), (B), and (C). The Final ID finds,
however, that Cisco has failed to satisfy the technical prong of the
domestic industry requirement with respect to the '875, '492, and '211
patents. The Final ID finds that Cisco has satisfied the technical
prong with respect to the '577, '853, and '668 patents.
The Final ID also contains the ALJ's recommended determination on
remedy and bonding. The ALJ recommended that the appropriate remedy is
a limited exclusion order with a certification provision and a cease
and desist order against Arista. The ALJ recommended the imposition of
a bond of 5% during the period of Presidential review.
On December 29, 2016, Cisco, Arista, and OUII each filed petitions
for review of various aspects of the Final ID. As described below, some
of the issues

[[Page 12845]]

presented for review were in the form of contingent petitions.
Cisco petitions for review of the Final ID's construction of
certain limitations recited in claim 46 of the '853 patent and the
resulting finding that Arista's accused products do not infringe that
claim. Cisco also petitions for review of the Final ID's findings of
non-infringement and non-satisfaction of the technical prong of the
domestic industry requirement with respect to the '875, '492, and '211
patents. Cisco requests contingent review of the Final ID's finding
that Arista does not indirectly infringe the asserted claims of the
'577 patent should the Commission review the Final ID's finding that
Arista's post-importation direct infringement cannot alone support a
finding of violation of section 337. Cisco also requests contingent
review of the Final ID's finding that Feldmeier anticipates the
asserted claims of the '577 patent should the Commission review the
Final ID's finding that assignor estoppel applies.
Arista petitions for review of the Final ID's construction of
certain limitations recited in the asserted claims of the '577 and '668
patents and the resulting finding that certain of Arista's accused
products infringe those claims. Arista also petitions for review of the
Final ID's findings of indirect infringement with respect to the '577
and '668 patents. Arista further petitions for review of the Final ID's
finding that assignor estoppel precludes Arista from challenging the
validity of the '577 and '853 patents. Arista requests contingent
review of the Final ID's finding that claim 46 of the '853 patent is
invalid as anticipated and indefinite should the Commission review the
ALJ's non-infringement findings with respect to that claim. Arista also
requests contingent review of the issue of indirect infringement
regarding the '853, '211, '875, and '492 patents should the Commission
review the Final ID's findings of no direct infringement with respect
to those patents.
OUII petitions for review of the Final ID's finding that the
``configurable PiP CoPP'' implementation in Arista's accused products
infringes the asserted claims of the '668 patent. OUII also petitions
for review of the Final ID's reliance on the Patent Trial and Appeal
Board decision in finding that claims 1 and 12 of the '211 patent are
invalid as anticipated. OUII requests contingent review of the Final
ID's finding that Feldmeier anticipates the asserted claims of the '577
patent should the Commission review the Final ID's finding that
assignor estoppel applies. OUII further requests contingent review of
the Final ID's construction of certain means-plus-functions claims
recited in claim 46 of the '853 patent should the Commission review the
Final ID's finding that the accused products do not infringe that
claim.
On January 10, 2017, Cisco, Arista, and OUII filed responses to the
various petitions for review.
On January 11, 2017, Cisco and Arista each filed a post-RD
statement on the public interest pursuant to Commission Rule
210.50(a)(4). No responses were filed by the public in response to the
post-RD Commission Notice issued on December 20, 2016. See Notice of
Request for Statements on the Public Interest (Dec. 20, 2016); 81 FR
95194-95 (Dec. 27, 2016).
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 in part.
With respect to the '577 patent, the Commission has determined to
review the Final ID's finding that Arista has indirectly infringed the
'577 patent by importing Imported Components, as referenced at page 110
in the Final ID. The Commission has also determined to review the Final
ID's finding that Arista's post-importation direct infringement cannot
alone support a finding of violation of section 337. The Commission has
further determined to review the Final ID's finding that Feldmeier
anticipates claims 1, 7, 9, 10, and 15 of the '577 patent.
With respect to the '853 patent, the Commission has determined to
review the Final ID's claim construction findings with respect to claim
elements (c), (d), and (f) of claim 46. The Commission has also
determined to review the Final ID's findings concerning direct and
indirect infringement regarding the '853 patent. The Commission has
further determined to review the Final ID's finding that assignor
estoppel applies to validity challenges based on indefiniteness. The
Commission has also determined to review the Final ID's finding that
Feldmeier does not anticipate claim 46.
With respect to the '875 and '492 patents, the Commission has
determined to review the Final ID's finding of no direct infringement
and the related finding of no indirect infringement. The Commission has
also determined to review the Final ID's finding that Cisco has failed
to satisfy the technical prong of the domestic industry requirement
with respect to the '875 and '492 patents.
With respect to the '668 patent, the Commission has determined to
review the Final ID's finding of direct infringement and the Final ID's
finding of indirect infringement, in particular as concerns Arista's
importation of Imported Components.
With respect to the '211 patent, the Commission has determined to
review the Final ID's finding that Cisco has failed to satisfy the
technical prong with respect to claims 1 and 12 of the '211 patent,
including the Final ID's finding that claims 1 and 12 are invalid.
The Commission has determined not to review the remaining issues
decided in the Final ID.
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 particularly
interested in responses to the following questions:
1. Discuss the relevant case law regarding the requirement,
pursuant to 35 U.S.C. 271(c), that to be found liable for contributory
infringement, the accused infringer must import into the United States
or sell within the United State a device that constitutes a ``material
part of the invention.'' In addition, please address whether the
Imported Components satisfy this requirement with respect to the '577,
'853, and '668 patents. Please cite to and discuss any relevant
evidence in the record.
2. Please address whether the Accused ACL Products infringe
asserted claim 46 of the '853 patent if the 35 U.S.C. 112, ] 6 (means-
plus-function) limitation ``means for matching matchable information,
said matchable information being responsive to said packet label, with
said set of access control patterns in parallel'' is construed to
require as the corresponding structure an access control memory,
including one or more content-addressable memory units of the type
shown in Figure 2 of the '853 patent.
3. Please address whether the Accused ACL Products infringe
asserted claim 46 of the '853 patent if the 35 U.S.C. 112, ] 6 (means-
plus-function) limitation ``means for generating a set of matches in
response thereto, each said match having priority information
associated therewith'' is construed to require as the corresponding
structure an access control memory, including one or more content-
addressable memory units of the type shown in Figure 2 of the '853
patent.
4. Please address whether the Accused ACL Products with the Petra
chip infringe asserted claim 46 of the '853 patent, in particular with
respect to the 35 U.S.C. 112, ] 6 (means-plus-function) limitation
``means for

[[Page 12846]]

selecting at least one of said matches in response to said priority
information, and generating an access result in response to said at
least one selected match.''
5. Regarding the 35 U.S.C. 112, ] 6 (means-plus-function)
limitation ``means for making a routing decision in response to said
access result'' recited in asserted claim 46 of the '853 patent, please
address whether any corresponding structure disclosed in the
specification of the '853 patent satisfies the claimed function, other
than the structure recited in the Final ID's claim construction or the
structures previously proposed by the parties.
6. With reference to question five, please address whether the
Accused ACL Products infringe claim 46 of the '853 patent under the
proper construction of the 35 U.S.C. 112, ] 6 (means-plus-function)
limitation ``means for making a routing decision in response to said
access result.''
7. Please address whether the Accused Loop Guard Products and the
DI Loop Guard Products practice the limitation ``including a discarding
state'' recited in claims 1 and 10 of the '875 patent and/or the
limitation ``including a discarding port state'' recited in claim 1 of
the '492 patent under the ALJ's claim construction of ``discarding
[port] state,'' which requires ``a port state in a spanning tree
protocol or algorithm in which data frames are neither forwarded to nor
received from the port.'' Please cite to and discuss any relevant
evidence in the record.
8. Please address whether the Accused Loop Guard Products and the
DI Loop Guard Products practice the limitation ``including . . . a
listening state'' recited in claims 1 and 10 of the '875 patent and/or
the limitation ``including . . . a listening [port] state'' recited in
claim 1 of the '492 patent. In particular, please discuss the
disclosure in exhibit CX-0653 at pages 63, 66, and 67. In addition,
please cite to and discuss any other relevant evidence in the record.
9. With respect to the '668 patent, please address whether the Pip
CoPP feature in the '668 Accused Products is a physical port service.
In particular, please address the significance of the ALJ's finding on
page 196 of the Final ID. In addition, please cite to and discuss any
relevant evidence in the record.
The parties have been invited to brief only these discrete issues,
as enumerated above, with reference to the applicable law and
evidentiary record. The parties are not to brief other issues on
review, which are adequately presented in the parties' existing
filings.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent(s) being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or likely to do so.
For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December
1994) (Commission Opinion).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove the Commission's action. See Presidential Memorandum of
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission and prescribed by the
Secretary of the Treasury. The Commission is therefore interested in
receiving submissions concerning the amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: The parties to the investigation, including
the Office of Unfair Import Investigations, are requested to file
written submissions on the issues identified in this notice. Parties to
the investigation, including the Office of Unfair Import
Investigations, interested government agencies, and any other
interested parties are encouraged to file written submissions on the
issues of remedy, the public interest, and bonding. Such submissions
should address the recommended determination by the ALJ on remedy and
bonding. Complainant and the Office of Unfair Import Investigations are
also requested to submit proposed remedial orders for the Commission's
consideration. Complainant is further requested to state the dates that
the patents expire, the HTSUS numbers under which the accused products
are imported, and any known importers of the accused products. The
written submissions and proposed remedial orders must be filed no later
than close of business on March 15, 2017. Initial submissions are
limited to 50 pages, not including any attachments or exhibits related
to discussion of the public interest. Reply submissions must be filed
no later than the close of business on March 24, 2017. Reply
submissions are limited to 25 pages, not including any attachments or
exhibits related to discussion of remedy, the public interest, and
bonding. 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-945'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and 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. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the

[[Page 12847]]

Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel,\1\ solely for cybersecurity purposes.
All nonconfidential written submissions will be available for public
inspection at the Office of the Secretary and on EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).

By order of the Commission.

Issued: March 1, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-04343 Filed 3-6-17; 8:45 am]
BILLING CODE 7020-02-P

12844 Federal Register / Vol. 82, No. 43 / Tuesday, March 7, 2017 / Notices

written submissions must conform with Commission has determined to review 64 of the ’668 patent. The ALJ found no
the provisions of section 201.8 of the in part the presiding administrative law violation of section 337 with respect to
Commission’s rules; any submissions judge’s (‘‘ALJ’’) final initial claim 2 of the ’577 patent; claims 46 and
that contain BPI must also conform with determination (‘‘Final ID’’) issued on 63 of the ’853 patent; claims 1, 3, and
the requirements of sections 201.6, December 9, 2016, finding a violation of 4 of the ’492 patent; claims 1–4, and 10
207.3, and 207.7 of the Commission’s section 337 of the Tariff Act of 1930, as of the ’875 patent; and claims 2, 6, 13,
rules. The Commission’s Handbook on amended, (‘‘section 337’’) in the above- and 17 of the ’211 patent.
E-Filing, available on the Commission’s captioned investigation. In particular, the Final ID finds that
Web site at https://www.usitc.gov/ FOR FURTHER INFORMATION CONTACT: Cisco has shown by a preponderance of
secretary/documents/handbook_on_ Megan M. Valentine, Office of the the evidence that the accused products
filing_procedures.pdf, elaborates upon General Counsel, U.S. International infringe asserted claims 1, 7, 9, 10, and
the Commission’s rules with respect to Trade Commission, 500 E Street SW., 15 of the ’577 patent; and asserted
electronic filing. Washington, DC 20436, telephone (202) claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and
Additional written submissions to the 708–2301. Copies of non-confidential 64 of the ’668 patent. The Final ID finds
Commission, including requests documents filed in connection with this that Cisco has failed to show by a
pursuant to section 201.12 of the investigation are or will be available for preponderance of the evidence that the
Commission’s rules, shall not be inspection during official business accused products infringe asserted
accepted unless good cause is shown for hours (8:45 a.m. to 5:15 p.m.) in the claim 2 of the ’577 patent; asserted
accepting such submissions, or unless Office of the Secretary, U.S. claims 46 and 63 of the ’853 patent;
the submission is pursuant to a specific International Trade Commission, 500 E asserted claims 1, 3, and 4 of the ’492
request by a Commissioner or Street SW., Washington, DC 20436, patent; asserted claims 1–4, and 10 of
Commission staff. telephone (202) 205–2000. General the ’875 patent; and asserted claims 2,
In accordance with sections 201.16(c) information concerning the Commission 6, 13, and 17 of the ’211 patent.
and 207.3 of the Commission’s rules, may also be obtained by accessing its The Final ID also finds that assignor
each document filed by a party to the Internet server at https://www.usitc.gov. estoppel bars Arista from asserting that
reviews must be served on all other The public record for this investigation the ’577 and ’853 patents are invalid.
parties to the reviews (as identified by may be viewed on the Commission’s The Final ID finds, however, that if
either the public or BPI service list), and electronic docket (EDIS) at https:// assignor estoppel did not apply, Arista
a certificate of service must be timely edis.usitc.gov. Hearing-impaired has shown by clear and convincing
filed. The Secretary will not accept a persons are advised that information on evidence that claims 1, 7, 9, 10, and 15
document for filing without a certificate this matter can be obtained by of the ’577 patent and claim 46 of the
of service. contacting the Commission’s TDD ’853 patent are invalid as anticipated by
The Commission has determined that terminal on (202) 205–1810. U.S. Patent No. 5,920,886
these reviews are extraordinarily SUPPLEMENTARY INFORMATION: The (‘‘Feldmeier’’). The Final ID further
complicated and therefore has Commission instituted this investigation finds that Arista has failed to show by
determined to exercise its authority to on January 27, 2015, based on a clear and convincing evidence that any
extend the review period by up to 90 Complaint filed by Cisco Systems, Inc. of the remaining asserted claims are
days pursuant to 19 U.S.C.1675(c)(5)(B). of San Jose, California (‘‘Cisco’’). 80 FR invalid. The Final ID also finds that
Authority: These reviews are being 4313–14 (Jan. 27, 2015). The Complaint Arista has not proven by clear and
conducted under authority of title VII of the alleges violations of section 337 of the convincing evidence that Cisco’s patent
Tariff Act of 1930; this notice is published Tariff Act of 1930, as amended, 19 claims are barred by equitable estoppel,
pursuant to section 207.62 of the U.S.C. 1337, in the sale for importation, waiver, implied license, laches, unclean
Commission’s rules. hands, or patent misuse.
importation, and sale within the United
By order of the Commission. States after importation of certain The Final ID finds that Cisco has
Issued: March 2, 2017. network devices, related software and satisfied the economic prong of the
Lisa R. Barton, components thereof by reason of domestic industry requirement for all of
Secretary to the Commission. infringement of certain claims of U.S. the patents-in-suit pursuant to 19 U.S.C.
[FR Doc. 2017–04372 Filed 3–6–17; 8:45 am] Patent Nos. 7,023,853; 6,377,577; 337(A), (B), and (C). The Final ID finds,
7,460,492; 7,061,875; 7,224,668; and however, that Cisco has failed to satisfy
BILLING CODE 7020–02–P
8,051,211. The Complaint further the technical prong of the domestic
alleges the existence of a domestic industry requirement with respect to the
INTERNATIONAL TRADE industry. The Commission’s Notice of ’875, ’492, and ’211 patents. The Final
COMMISSION Investigation named Arista Networks, ID finds that Cisco has satisfied the
Inc. of Santa Clara, California (‘‘Arista’’) technical prong with respect to the ’577,
[Investigation No. 337–TA–945] as respondent. The Office of Unfair ’853, and ’668 patents.
Import Investigations (‘‘OUII’’) was also The Final ID also contains the ALJ’s
Certain Network Devices, Related recommended determination on remedy
named as a party to the investigation.
Software and Components Thereof (II); and bonding. The ALJ recommended
The Commission previously terminated
Commission Decision To Review in that the appropriate remedy is a limited
the investigation in part as to certain
Part a Final Initial Determination exclusion order with a certification
claims of the asserted patents. Order No.
Finding a Violation of Section 337; provision and a cease and desist order
sradovich on DSK3GMQ082PROD with NOTICES

38 (Oct. 27, 2015), unreviewed Notice
Request for Written Submissions against Arista. The ALJ recommended
(Nov. 18, 2015); Order No. 47 (Nov. 9,
AGENCY: U.S. International Trade 2015), unreviewed Notice (Dec. 1, 2015). the imposition of a bond of 5% during
Commission. On December 9, 2016, the ALJ issued the period of Presidential review.
ACTION: Notice. her Final ID, finding a violation of On December 29, 2016, Cisco, Arista,
section 337 with respect to claims 1, 7, and OUII each filed petitions for review
SUMMARY: Notice is hereby given that 9, 10, and 15 of the ’577 patent; and of various aspects of the Final ID. As
the U.S. International Trade claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and described below, some of the issues

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Federal Register / Vol. 82, No. 43 / Tuesday, March 7, 2017 / Notices 12845

presented for review were in the form of of the Final ID’s construction of certain infringement and the Final ID’s finding
contingent petitions. means-plus-functions claims recited in of indirect infringement, in particular as
Cisco petitions for review of the Final claim 46 of the ’853 patent should the concerns Arista’s importation of
ID’s construction of certain limitations Commission review the Final ID’s Imported Components.
recited in claim 46 of the ’853 patent finding that the accused products do not With respect to the ’211 patent, the
and the resulting finding that Arista’s infringe that claim. Commission has determined to review
accused products do not infringe that On January 10, 2017, Cisco, Arista, the Final ID’s finding that Cisco has
claim. Cisco also petitions for review of and OUII filed responses to the various failed to satisfy the technical prong with
the Final ID’s findings of non- petitions for review. respect to claims 1 and 12 of the ’211
infringement and non-satisfaction of the On January 11, 2017, Cisco and Arista patent, including the Final ID’s finding
technical prong of the domestic industry each filed a post-RD statement on the that claims 1 and 12 are invalid.
requirement with respect to the ’875, public interest pursuant to Commission The Commission has determined not
’492, and ’211 patents. Cisco requests Rule 210.50(a)(4). No responses were to review the remaining issues decided
contingent review of the Final ID’s filed by the public in response to the in the Final ID.
finding that Arista does not indirectly post-RD Commission Notice issued on The parties are requested to brief their
infringe the asserted claims of the ’577 December 20, 2016. See Notice of positions on the issues under review
patent should the Commission review Request for Statements on the Public with reference to the applicable law and
the Final ID’s finding that Arista’s post- Interest (Dec. 20, 2016); 81 FR 95194– the evidentiary record. In connection
importation direct infringement cannot 95 (Dec. 27, 2016). with its review, the Commission is
alone support a finding of violation of Having examined the record of this particularly interested in responses to
section 337. Cisco also requests investigation, including the Final ID, the the following questions:
contingent review of the Final ID’s petitions for review, and the responses 1. Discuss the relevant case law
finding that Feldmeier anticipates the thereto, the Commission has determined regarding the requirement, pursuant to
asserted claims of the ’577 patent to review the Final ID in part. 35 U.S.C. 271(c), that to be found liable
should the Commission review the Final With respect to the ’577 patent, the for contributory infringement, the
ID’s finding that assignor estoppel Commission has determined to review accused infringer must import into the
applies. the Final ID’s finding that Arista has United States or sell within the United
Arista petitions for review of the Final indirectly infringed the ’577 patent by State a device that constitutes a
ID’s construction of certain limitations importing Imported Components, as ‘‘material part of the invention.’’ In
recited in the asserted claims of the ’577 referenced at page 110 in the Final ID. addition, please address whether the
and ’668 patents and the resulting The Commission has also determined to Imported Components satisfy this
finding that certain of Arista’s accused review the Final ID’s finding that requirement with respect to the ’577,
products infringe those claims. Arista Arista’s post-importation direct ’853, and ’668 patents. Please cite to and
also petitions for review of the Final infringement cannot alone support a discuss any relevant evidence in the
ID’s findings of indirect infringement finding of violation of section 337. The record.
with respect to the ’577 and ’668 Commission has further determined to 2. Please address whether the
patents. Arista further petitions for review the Final ID’s finding that Accused ACL Products infringe asserted
review of the Final ID’s finding that Feldmeier anticipates claims 1, 7, 9, 10, claim 46 of the ’853 patent if the 35
assignor estoppel precludes Arista from and 15 of the ’577 patent. U.S.C. 112, ¶ 6 (means-plus-function)
challenging the validity of the ’577 and With respect to the ’853 patent, the limitation ‘‘means for matching
’853 patents. Arista requests contingent Commission has determined to review matchable information, said matchable
review of the Final ID’s finding that the Final ID’s claim construction information being responsive to said
claim 46 of the ’853 patent is invalid as findings with respect to claim elements packet label, with said set of access
anticipated and indefinite should the (c), (d), and (f) of claim 46. The control patterns in parallel’’ is
Commission review the ALJ’s non- Commission has also determined to construed to require as the
infringement findings with respect to review the Final ID’s findings corresponding structure an access
that claim. Arista also requests concerning direct and indirect control memory, including one or more
contingent review of the issue of infringement regarding the ’853 patent. content-addressable memory units of
indirect infringement regarding the ’853, The Commission has further determined the type shown in Figure 2 of the ’853
’211, ’875, and ’492 patents should the to review the Final ID’s finding that patent.
Commission review the Final ID’s assignor estoppel applies to validity 3. Please address whether the
findings of no direct infringement with challenges based on indefiniteness. The Accused ACL Products infringe asserted
respect to those patents. Commission has also determined to claim 46 of the ’853 patent if the 35
OUII petitions for review of the Final review the Final ID’s finding that U.S.C. 112, ¶ 6 (means-plus-function)
ID’s finding that the ‘‘configurable PiP Feldmeier does not anticipate claim 46. limitation ‘‘means for generating a set of
CoPP’’ implementation in Arista’s With respect to the ’875 and ’492 matches in response thereto, each said
accused products infringes the asserted patents, the Commission has match having priority information
claims of the ’668 patent. OUII also determined to review the Final ID’s associated therewith’’ is construed to
petitions for review of the Final ID’s finding of no direct infringement and require as the corresponding structure
reliance on the Patent Trial and Appeal the related finding of no indirect an access control memory, including
Board decision in finding that claims 1 infringement. The Commission has also one or more content-addressable
and 12 of the ’211 patent are invalid as
sradovich on DSK3GMQ082PROD with NOTICES

determined to review the Final ID’s memory units of the type shown in
anticipated. OUII requests contingent finding that Cisco has failed to satisfy Figure 2 of the ’853 patent.
review of the Final ID’s finding that the technical prong of the domestic 4. Please address whether the
Feldmeier anticipates the asserted industry requirement with respect to the Accused ACL Products with the Petra
claims of the ’577 patent should the ’875 and ’492 patents. chip infringe asserted claim 46 of the
Commission review the Final ID’s With respect to the ’668 patent, the ’853 patent, in particular with respect to
finding that assignor estoppel applies. Commission has determined to review the 35 U.S.C. 112, ¶ 6 (means-plus-
OUII further requests contingent review the Final ID’s finding of direct function) limitation ‘‘means for

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Federal Register / Vol. 82, No. 43 / Tuesday, March 7, 2017 / Notices 12847

Commission, its employees and Offices, Dated: February 27, 2017. under specified circumstances.
and contract personnel (a) for Rebecca A. Womeldorf, Specifically, Odysseus Data Services
developing or maintaining the records Rules Committee Secretary. Inc., Cambridge, MA; Mike Furness
of this or a related proceeding, or (b) in [FR Doc. 2017–04322 Filed 3–6–17; 8:45 am] (individual member), Ely,
internal investigations, audits, reviews, BILLING CODE 2210–55–P
Cambridgeshire, United Kingdom; and
and evaluations relating to the Copyright Clearance Center, Danvers,
programs, personnel, and operations of MA, have been added as parties to this
the Commission including under 5 JUDICIAL CONFERENCE OF THE venture.
U.S.C. Appendix 3; or (ii) by U.S. UNITED STATES Also, Sanofi, Frankfurt, Germany;
government employees and contract BioReference Laboratories, Elmwood
personnel,1 solely for cybersecurity Meeting of the Judicial Conference Park, NJ; BioVariance GmbH, Munich,
purposes. All nonconfidential written Advisory; Committee on Rules of Civil Germany; and UCB Pharma SA,
submissions will be available for public Procedure Brussels, Belgium, have withdrawn as
inspection at the Office of the Secretary parties to this venture.
AGENCY: Advisory Committee on Rules No other changes have been made in
and on EDIS.
The authority for the Commission’s of Civil Procedure, Judicial Conference either the membership or planned
determination is contained in section of the United States. activity of the group research project.
337 of the Tariff Act of 1930, as ACTION: Notice of open meeting. Membership in this group research
amended (19 U.S.C. 1337), and in Part project remains open, and Pistoia
SUMMARY: The Advisory Committee on Alliance, Inc. intends to file additional
210 of the Commission’s Rules of
Rules of Civil Procedure will hold a written notifications disclosing all
Practice and Procedure (19 CFR part
meeting on April 25–26, 2017. The changes in membership.
210).
meeting will be open to public On May 28, 2009, Pistoia Alliance,
By order of the Commission. observation but not participation. An Inc. filed its original notification
Issued: March 1, 2017. agenda and supporting materials will be pursuant to Section 6(a) of the Act. The
Lisa R. Barton, posted at least 7 days in advance of the Department of Justice published a notice
Secretary to the Commission. meeting at: http://www.uscourts.gov/ in the Federal Register pursuant to
[FR Doc. 2017–04343 Filed 3–6–17; 8:45 am]
rules-policies/records-and-archives- Section 6(b) of the Act on July 15, 2009
rules-committees/agenda-books. (74 FR 34364).
BILLING CODE 7020–02–P
DATES: The last notification was filed with
April 25–9:00 a.m. to 5:00 p.m. the Department on November 14, 2016.
JUDICIAL CONFERENCE OF THE April 26–9:00 a.m. to 12:00 p.m. A notice was published in the Federal
UNITED STATES ADDRESSES: Hotel Ella, 1900 Rio Grande, Register pursuant to Section 6(b) of the
Austin, Texas 78705. Act on December 13, 2016 (81 FR
Meeting of the Judicial Conference 89992).
FOR FURTHER INFORMATION CONTACT:
Advisory; Committee on Rules of Rebecca A. Womeldorf, Rules Patricia A. Brink,
Criminal Procedure Committee Secretary, Rules Committee Director of Civil Enforcement, Antitrust
AGENCY: Advisory Committee on Rules Support Office, Administrative Office of Division.
of Criminal Procedure, Judicial the United States Courts, Washington, [FR Doc. 2017–04362 Filed 3–6–17; 8:45 am]
Conference of the United States. DC 20544, telephone (202) 502–1820. BILLING CODE 4410–11–P
ACTION: Notice of open meeting. Dated: February 28, 2017.
Rebecca A. Womeldorf,
SUMMARY: The Advisory Committee on DEPARTMENT OF JUSTICE
Rules of Criminal Procedure will hold a Rules Committee Secretary.
meeting on April 28, 2017. The meeting [FR Doc. 2017–04320 Filed 3–6–17; 8:45 am] Antitrust Division
will be open to public observation but BILLING CODE 2210–55–P
not participation. An agenda and Notice Pursuant to the National
supporting materials will be posted at Cooperative Research and Production
least 7 days in advance of the meeting DEPARTMENT OF JUSTICE Act of 1993—Medical CBRN Defense
at: http://www.uscourts.gov/rules- Consortium
policies/records-and-archives-rules- Antitrust Division Notice is hereby given that, on
committees/agenda-books. February 3, 2017, pursuant to Section
Notice Pursuant to the National
DATES: April 28, 2017 from 8:30 a.m.–
Cooperative Research and Production 6(a) of the National Cooperative
5:30 p.m. Act of 1993—Pistoia Alliance, Inc. Research and Production Act of 1993,
ADDRESSES: Thurgood Marshall Federal 15 U.S.C. 4301 et seq. (‘‘the Act’’),
Judiciary Building, Mecham Conference Notice is hereby given that, on Medical CBRN Defense Consortium
Center, Administrative Office of the February 3, 2017, pursuant to Section (‘‘MCDC’’) has filed written notifications
United States Courts, One Columbus 6(a) of the National Cooperative simultaneously with the Attorney
Circle NE., Washington, DC 20544. Research and Production Act of 1993, General and the Federal Trade
FOR FURTHER INFORMATION CONTACT: 15 U.S.C. 4301 et seq. (‘‘the Act’’), Commission disclosing changes in its
Pistoia Alliance, Inc. has filed written membership. The notifications were
sradovich on DSK3GMQ082PROD with NOTICES

Rebecca A. Womeldorf, Rules
Committee Secretary, Rules Committee notifications simultaneously with the filed for the purpose of extending the
Support Office, Administrative Office of Attorney General and the Federal Trade Act’s provisions limiting the recovery of
the United States Courts, Washington, Commission disclosing changes in its antitrust plaintiffs to actual damages
DC 20544, telephone (202) 502–1820. membership. The notifications were under specified circumstances.
filed for the purpose of extending the Specifically, Biologics Modular,
1 All contract personnel will sign appropriate Act’s provisions limiting the recovery of Brownsburg, IN; DynPort Vaccine
nondisclosure agreements. antitrust plaintiffs to actual damages Company, LLC, a CSRA Company,

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Document Created: 2018-02-01 14:49:23
Document Modified: 2018-02-01 14:49:23

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
Contact		Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2301. Copies of non- confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at https:// www.usitc.gov. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810.
FR Citation		82 FR 12844