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)

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, 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

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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