82 FR 38934 - Certain Digital Video Receivers and Hardware and Software Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Grant of Joint Unopposed Motion for Leave To Amend the Complaint and Notice of Investigation To Correct Corporate Names

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 157 (August 16, 2017)

Page Range		38934-38936
FR Document		2017-17283

Notice is hereby given that the U.S. International Trade Commission (the ``Commission'') has determined to review in part the final initial determination (``the Final ID'') issued by the presiding administrative law judge (``ALJ'') on May 26, 2017, finding a violation of section 337 of the Tariff Act of 1930, as amended in connection with certain asserted patents. The Commission has also determined to deny Respondents' motion requesting leave to file a reply to Rovi's response to Respondents' petition for review of the Final ID. The Commission has further determined to grant a joint unopposed motion for leave to amend the complaint and notice of investigation to correct the corporate names of certain respondents.

Federal Register, Volume 82 Issue 157 (Wednesday, August 16, 2017)

[Federal Register Volume 82, Number 157 (Wednesday, August 16, 2017)]
[Notices]
[Pages 38934-38936]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-17283]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1001]


Certain Digital Video Receivers and Hardware and Software 
Components Thereof; Commission Determination To Review in Part a Final 
Initial Determination Finding a Violation of Section 337; Schedule for 
Written Submissions on the Issues Under Review and on Remedy, the 
Public Interest, and Bonding; Grant of Joint Unopposed Motion for Leave 
To Amend the Complaint and Notice of Investigation To Correct Corporate 
Names

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (the ``Commission'') has determined to review in part the 
final initial determination (``the Final ID'') issued by the presiding 
administrative law judge (``ALJ'') on May 26, 2017, finding a violation 
of section 337 of the Tariff Act of 1930, as amended in connection with 
certain asserted patents. The Commission has also determined to deny 
Respondents' motion requesting leave to file a reply to Rovi's response 
to Respondents' petition for review of the Final ID. The Commission has 
further determined to grant a joint unopposed motion for leave to amend 
the complaint and notice of investigation to correct the corporate 
names of certain respondents.

FOR FURTHER INFORMATION CONTACT: Ron Traud, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-205-3427. 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, telephone 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on May 26, 2016, based on a complaint filed on behalf of Rovi 
Corporation and Rovi Guides, Inc. (collectively, ``Rovi''), both of San 
Carlos, California. 81 FR 33547-48 (May 26, 2016). The complaint, as 
amended, alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337, by reason of infringement of certain claims 
of U.S. Patent No. 8,006,263 (``the '263 patent''); U.S. Patent No. 
8,578,413 (``the '413 patent''); U.S. Patent No. 8,046,801 (``the '801 
patent''); U.S. Patent No. 8,621,512 (``the '512 patent''); U.S. Patent 
No. 8,768,147 (``the '147 patent''); U.S. Patent No. 8,566,871 (``the 
'871 patent''); and U.S. Patent No. 6,418,556 (``the '556 patent''). 
The complaint further alleges that a domestic industry exists. Id. at 
33548.
    The Commission's notice of investigation named sixteen respondents. 
The respondents are Comcast Corporation of Philadelphia, PA; Comcast 
Cable Communications, LLC of Philadelphia, PA; Comcast Cable 
Communications Management, LLC of Philadelphia, PA; Comcast Business 
Communications, LLC of Philadelphia, PA; Comcast Holdings Corporation 
of Philadelphia, PA; Comcast Shared Services, LLC of Chicago, IL; 
Technicolor SA of Issy-les-Moulineaux, France; Technicolor USA, Inc. of 
Indianapolis, IN; Technicolor Connected Home USA LLC of Indianapolis, 
IN; Pace Ltd. of Saltaire, England (now ARRIS Global Ltd.); Pace 
Americas, LLC of Boca Raton, FL; ARRIS International plc of Suwanee, 
GA; ARRIS Group Inc. of Suwanee, GA; ARRIS Technology, Inc. of Horsham, 
PA; ARRIS Enterprises Inc. of Suwanee, GA (now ARRIS Enterprises LLC); 
and ARRIS Solutions, Inc. of Suwanee, GA. 81 FR at 33548. The Office of 
Unfair Import Investigations is not a party to this investigation. Id.
    Prior to the evidentiary hearing, Rovi withdrew its allegations as 
to certain patent claims. See Notice of Commission Determination Not to 
Review an Initial Determination Granting Complainants' Motion to 
Terminate Certain Asserted Patent Claims from the Investigation (Oct. 
21, 2016); Notice of Commission Determination Not to Review an Initial 
Determination Granting Complainants' Motion to Terminate Certain 
Asserted Patent Claims from the Investigation (Dec. 2, 2016); Notice of 
Commission Determination Not to Review an Initial Determination 
Terminating U.S. Patent No. 8,768,147 from the Investigation (Dec. 28, 
2016). Rovi proceeded at the evidentiary hearing on the following 
patents and claims: Claims 7, 18, and 40 of the '556 patent; claims 1, 
2, 14, and 17 of the '263 patent; claims 1, 5, 10, and 15 of the '801 
patent; claims 12, 17, and 18 of the '871 patent; claims 1, 3, 5, 9, 
10, 14, and 18 of the '413 patent; and claims 1, 10, 13, and 22 of the 
'512 patent.
    On May 26, 2017, the ALJ issued the Final ID, which finds a 
violation of section 337 by the respondents in connection with the 
asserted claims of the '263 and '413 patents. The Final ID finds no 
violation of section 337 in connection with the asserted claims of the 
'556, '801, '871, and '512 patents. The ALJ recommended that, subject 
to any public interest determinations of the Commission, the Commission 
should issue a limited exclusion order directed to the accused 
products, that cease and desist orders issue to the respondents, and 
that the Commission should not require any bond during the Presidential 
review period.
    On June 12, 2017, Rovi and the respondents filed petitions for 
review of the Final ID. The respondents petitioned thirty-two of the 
Final ID's conclusions, and Rovi petitioned seven of the Final ID's 
conclusions. On June 20, 2017, the parties filed responses to the 
petitions for review. On July 11, 2017, Rovi and the respondents filed 
statements on the public interest. The Commission also received 
numerous comments on the public interest from the public.
    On June 26, 2017, Respondents filed a motion requesting leave to 
file a reply to Rovi's response to Respondents' petition for review, 
and on June 29, 2017, Rovi filed a response in opposition to that 
motion. That motion is denied.
    On July 5, 2017, Rovi and the ARRIS respondents filed a Joint 
Unopposed Motion for, and Memorandum in Support of, Leave to Amend the 
Complaint and Notice of Investigation to Correct Corporate Names of Two 
ARRIS Respondents. The motion indicates that ARRIS Enterprises, Inc. 
has changed its name to ARRIS Enterprises LLC and that Pace Ltd. has 
changed its name to ARRIS Global Ltd. That motion is granted.
    On July 25, 2017, Comcast submitted with the Office of the 
Secretary a letter including supplemental disclosure and

[[Page 38935]]

representations. On July 31, 2017, Rovi submitted with the Office of 
the Secretary a response thereto, which asserted that ``this new 
evidence confirms that there is no reason for the Commission to 
review'' certain of the Final ID's conclusions. On August 9, 2017, 
Comcast filed a response to Rovi's submission. The Commission has 
determined to reopen the evidentiary record and accept the supplemental 
disclosure, response thereto, and reply to the response.
    Having examined the record in 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. In 
particular, the Commission has determined to review the following:
    (1) The Final ID's determination that Comcast is an importer of the 
accused products (Issue 1 in Respondents' Petition for Review).
    (2) The Final ID's determination that Comcast has not sold accused 
products in the United States after the importation of those products 
into the United States (the issue discussed in section III of Rovi's 
Petition for Review).
    (3) The Final ID's determination that the accused Legacy products 
are ``articles that infringe'' (Issue 2 in Respondents' Petition for 
Review).
    (4) The issue of whether the X1 products are ``articles that 
infringe'' (Issue 3 in Respondents' Petition for Review), the issue of 
direct infringement of the '263 and '413 patents by the X1 accused 
products (Issue 5 in Respondents' Petition for Review), and the issue 
of ``the nature and scope of the violation found'' (the issue discussed 
in section X of Respondents' Petition for Review).
    (5) The issue of whether Comcast's two alternative designs infringe 
the '263 and '413 patents (Issue 4 in Respondents' Petition for 
Review).
    (6) The Final ID's claim construction of ``cancel a function of the 
second tuner to permit the second tuner to perform the requested tuning 
operation'' in the '512 patent, and the Final ID's infringement 
determinations as to that patent (Issue 26 in Respondents' Petition for 
Review).
    (7) The Final ID's conclusion that the asserted claims of the '512 
patent are invalid as obvious (the issue discussed in section VI.B.4 of 
Rovi's Petition for Review).
    (8) The issue of whether the ARRIS-Rovi Agreement provides a 
defense to the allegations against the ARRIS respondents (the issue 
discussed in section XI of Respondents' Petition for Review).
    (9) The Final ID's conclusion that Rovi did not establish the 
economic prong of the domestic industry requirement based on patent 
licensing (the issue discussed in section IV of Rovi's Petition for 
Review).
    The Commission has determined to not review the remainder of the 
Final ID. The Commission has further determined that Respondents' 
petition of the Final ID's determinations is improper as to the 
following issues: (1) The representative accused X1 products for the 
'263, '413, and '801 patents; (2) the induced infringement of the '263 
and '413 patents; and (3) the eligibility under 35 U.S.C. 101 of the 
'512 patent. See 19 CFR 210.43(b)(2) (``Petitions for review may not 
incorporate statements, issues, or arguments by reference.''). Those 
assignments of error are therefore waived.
    The parties are requested to brief their positions with reference 
to the applicable law and the evidentiary record regarding the 
questions provided below:
    (1) As to whether the Legacy accused products are ``articles that 
infringe'' (Issue 2 in Respondents' Petition for Review):
    Has Rovi shown (or has Comcast conceded) that a Legacy accused 
product that infringes the asserted patents (and if so, which patents) 
has been imported or re-imported by any respondent or that respondent's 
agent(s)?
    (2) As to whether the X1 products are ``articles that infringe'' 
(Issue 3 in Respondents' Petition for Review), the issue of direct 
infringement of the '263 and '413 patents by the X1 accused products 
(Issue 5 in Respondents' Petition for Review), and the issue of ``the 
nature and scope of the violation found'' (the issue discussed in 
section X of Respondents' Petition for Review):
    a. For purposes of giving rise to a section 337 violation and 
whether the X1 STBs are ``articles that infringe,'' is the importation 
of and infringement through the use of the X1 STBs distinguishable from 
the importation of and infringement through the use of the scanners in 
Suprema v. Int'l Trade Comm'n, 796 F.3d 1338 (Fed. Cir. 2015)? For 
example, is Suprema distinguishable because the imported X1 STBs 
require cooperation with hardware (a mobile device and Comcast's 
servers) that is not imported by the respondents for an act of 
infringement to occur? Note that, in Suprema, the imported scanners 
were ``not standalone products,'' but rather, to function, the scanners 
had to ``be connected to a computer, and that computer must have 
custom-developed software installed and running.'' 796 F.3d at 1341-42.
    b. Please discuss any relevant statutory language, legislative 
history, case law, and Commission precedent that does or does not 
support interpreting the language of section 337 such that the X1 STBs 
are ``articles that infringe'' and that a violation arises from the 
importation or sale in the United States after importation of the X1 
STBs.
    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 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.
    The parties and the public are requested to brief their positions 
regarding the public interest. The Commission is particularly 
interested in responses to the following:
    Should the Commission tailor any remedy to mitigate any harm 
considered by the public interest factors? Please provide any support, 
factual or otherwise, and relate that support to specific public 
interest factors.
    If the Commission orders some form of remedy, the U.S. Trade

[[Page 38936]]

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 
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. 
Complainants are requested to submit proposed remedial orders for the 
Commission's consideration. Complainants are also requested to state 
the date that the patents expire and the HTSUS numbers under which the 
accused products are imported. Complainants are 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 August 24, 2017. Reply 
submissions must be filed no later than the close of business on August 
31, 2017. No further submissions on any of 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-1001'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://www.usitc.gov/secretary/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 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, solely for cybersecurity 
purposes (all contract personnel will sign appropriate nondisclosure 
agreements). All nonconfidential written submissions will be available 
for public inspection at the Office of the Secretary and on EDIS.
    This action is taken under the authority of 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: August 10, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-17283 Filed 8-15-17; 8:45 am]
BILLING CODE 7020-02-P

38934 Federal Register / Vol. 82, No. 157 / Wednesday, August 16, 2017 / Notices

Reclamation Act of 1977, as amended (30 Internet server at https://www.usitc.gov. Determination Not to Review an Initial
U.S.C. 1201 et seq.), and the Paperwork The public record for this investigation Determination Granting Complainants’
Reduction Act of 1995 (44 U.S.C. 3501 et may be viewed on the Commission’s Motion to Terminate Certain Asserted
seq.). electronic docket (‘‘EDIS’’) at https:// Patent Claims from the Investigation
Dated: June 15, 2017. edis.usitc.gov. Hearing-impaired (Dec. 2, 2016); Notice of Commission
John A. Trelease, persons are advised that information on Determination Not to Review an Initial
Acting Chief, Division of Regulatory Support. this matter can be obtained by Determination Terminating U.S. Patent
[FR Doc. 2017–17290 Filed 8–15–17; 8:45 am] contacting the Commission’s TDD No. 8,768,147 from the Investigation
BILLING CODE 4310–05–P
terminal, telephone 202–205–1810. (Dec. 28, 2016). Rovi proceeded at the
SUPPLEMENTARY INFORMATION: The evidentiary hearing on the following
Commission instituted this investigation patents and claims: Claims 7, 18, and 40
on May 26, 2016, based on a complaint of the ’556 patent; claims 1, 2, 14, and
INTERNATIONAL TRADE
filed on behalf of Rovi Corporation and 17 of the ’263 patent; claims 1, 5, 10,
COMMISSION
Rovi Guides, Inc. (collectively, ‘‘Rovi’’), and 15 of the ’801 patent; claims 12, 17,
[Investigation No. 337–TA–1001] both of San Carlos, California. 81 FR and 18 of the ’871 patent; claims 1, 3,
33547–48 (May 26, 2016). The 5, 9, 10, 14, and 18 of the ’413 patent;
Certain Digital Video Receivers and and claims 1, 10, 13, and 22 of the ’512
Hardware and Software Components complaint, as amended, alleges
violations of section 337 of the Tariff patent.
Thereof; Commission Determination On May 26, 2017, the ALJ issued the
To Review in Part a Final Initial Act of 1930, as amended, 19 U.S.C.
Final ID, which finds a violation of
Determination Finding a Violation of 1337, by reason of infringement of
section 337 by the respondents in
Section 337; Schedule for Written certain claims of U.S. Patent No.
connection with the asserted claims of
Submissions on the Issues Under 8,006,263 (‘‘the ’263 patent’’); U.S.
the ’263 and ’413 patents. The Final ID
Review and on Remedy, the Public Patent No. 8,578,413 (‘‘the ’413 patent’’);
finds no violation of section 337 in
Interest, and Bonding; Grant of Joint U.S. Patent No. 8,046,801 (‘‘the ’801
connection with the asserted claims of
Unopposed Motion for Leave To patent’’); U.S. Patent No. 8,621,512 (‘‘the
the ’556, ’801, ’871, and ’512 patents.
Amend the Complaint and Notice of ’512 patent’’); U.S. Patent No. 8,768,147
The ALJ recommended that, subject to
Investigation To Correct Corporate (‘‘the ’147 patent’’); U.S. Patent No.
any public interest determinations of
Names 8,566,871 (‘‘the ’871 patent’’); and U.S. the Commission, the Commission
Patent No. 6,418,556 (‘‘the ’556 patent’’). should issue a limited exclusion order
AGENCY: U.S. International Trade The complaint further alleges that a directed to the accused products, that
Commission. domestic industry exists. Id. at 33548. cease and desist orders issue to the
ACTION: Notice. The Commission’s notice of respondents, and that the Commission
investigation named sixteen should not require any bond during the
SUMMARY: Notice is hereby given that respondents. The respondents are Presidential review period.
the U.S. International Trade Comcast Corporation of Philadelphia, On June 12, 2017, Rovi and the
Commission (the ‘‘Commission’’) has PA; Comcast Cable Communications, respondents filed petitions for review of
determined to review in part the final LLC of Philadelphia, PA; Comcast Cable the Final ID. The respondents petitioned
initial determination (‘‘the Final ID’’) Communications Management, LLC of thirty-two of the Final ID’s conclusions,
issued by the presiding administrative Philadelphia, PA; Comcast Business and Rovi petitioned seven of the Final
law judge (‘‘ALJ’’) on May 26, 2017, Communications, LLC of Philadelphia, ID’s conclusions. On June 20, 2017, the
finding a violation of section 337 of the PA; Comcast Holdings Corporation of parties filed responses to the petitions
Tariff Act of 1930, as amended in Philadelphia, PA; Comcast Shared for review. On July 11, 2017, Rovi and
connection with certain asserted Services, LLC of Chicago, IL; the respondents filed statements on the
patents. The Commission has also Technicolor SA of Issy-les-Moulineaux, public interest. The Commission also
determined to deny Respondents’ France; Technicolor USA, Inc. of received numerous comments on the
motion requesting leave to file a reply Indianapolis, IN; Technicolor public interest from the public.
to Rovi’s response to Respondents’ Connected Home USA LLC of On June 26, 2017, Respondents filed
petition for review of the Final ID. The Indianapolis, IN; Pace Ltd. of Saltaire, a motion requesting leave to file a reply
Commission has further determined to England (now ARRIS Global Ltd.); Pace to Rovi’s response to Respondents’
grant a joint unopposed motion for leave Americas, LLC of Boca Raton, FL; petition for review, and on June 29,
to amend the complaint and notice of ARRIS International plc of Suwanee, 2017, Rovi filed a response in
investigation to correct the corporate GA; ARRIS Group Inc. of Suwanee, GA; opposition to that motion. That motion
names of certain respondents. ARRIS Technology, Inc. of Horsham, is denied.
FOR FURTHER INFORMATION CONTACT: Ron PA; ARRIS Enterprises Inc. of Suwanee, On July 5, 2017, Rovi and the ARRIS
Traud, Office of the General Counsel, GA (now ARRIS Enterprises LLC); and respondents filed a Joint Unopposed
U.S. International Trade Commission, ARRIS Solutions, Inc. of Suwanee, GA. Motion for, and Memorandum in
500 E Street SW., Washington, DC 81 FR at 33548. The Office of Unfair Support of, Leave to Amend the
20436, telephone 202–205–3427. Copies Import Investigations is not a party to Complaint and Notice of Investigation to
of non-confidential documents filed in this investigation. Id. Correct Corporate Names of Two ARRIS
asabaliauskas on DSKBBXCHB2PROD with NOTICES

connection with this investigation are or Prior to the evidentiary hearing, Rovi Respondents. The motion indicates that
will be available for inspection during withdrew its allegations as to certain ARRIS Enterprises, Inc. has changed its
official business hours (8:45 a.m. to 5:15 patent claims. See Notice of name to ARRIS Enterprises LLC and that
p.m.) in the Office of the Secretary, U.S. Commission Determination Not to Pace Ltd. has changed its name to
International Trade Commission, 500 E Review an Initial Determination ARRIS Global Ltd. That motion is
Street SW., Washington, DC 20436, Granting Complainants’ Motion to granted.
telephone 202–205–2000. General Terminate Certain Asserted Patent On July 25, 2017, Comcast submitted
information concerning the Commission Claims from the Investigation (Oct. 21, with the Office of the Secretary a letter
may also be obtained by accessing its 2016); Notice of Commission including supplemental disclosure and

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Federal Register / Vol. 82, No. 157 / Wednesday, August 16, 2017 / Notices 38935

representations. On July 31, 2017, Rovi (9) The Final ID’s conclusion that software installed and running.’’ 796
submitted with the Office of the Rovi did not establish the economic F.3d at 1341–42.
Secretary a response thereto, which prong of the domestic industry b. Please discuss any relevant
asserted that ‘‘this new evidence requirement based on patent licensing statutory language, legislative history,
confirms that there is no reason for the (the issue discussed in section IV of case law, and Commission precedent
Commission to review’’ certain of the Rovi’s Petition for Review). that does or does not support
Final ID’s conclusions. On August 9, The Commission has determined to interpreting the language of section 337
2017, Comcast filed a response to Rovi’s not review the remainder of the Final such that the X1 STBs are ‘‘articles that
submission. The Commission has ID. The Commission has further infringe’’ and that a violation arises
determined to reopen the evidentiary determined that Respondents’ petition from the importation or sale in the
record and accept the supplemental of the Final ID’s determinations is United States after importation of the X1
disclosure, response thereto, and reply improper as to the following issues: (1) STBs.
to the response. The representative accused X1 products In connection with the final
Having examined the record in this for the ’263, ’413, and ’801 patents; (2) disposition of this investigation, the
investigation, including the Final ID, the the induced infringement of the ’263 Commission may (1) issue an order that
petitions for review, and the responses and ’413 patents; and (3) the eligibility could result in the exclusion of the
thereto, the Commission has determined under 35 U.S.C. 101 of the ’512 patent. subject articles from entry into the
to review the Final ID in part. In See 19 CFR 210.43(b)(2) (‘‘Petitions for United States, and/or (2) issue one or
particular, the Commission has review may not incorporate statements, more cease and desist orders that could
determined to review the following: issues, or arguments by reference.’’). result in the respondent being required
(1) The Final ID’s determination that Those assignments of error are therefore to cease and desist from engaging in
Comcast is an importer of the accused waived. unfair acts in the importation and sale
products (Issue 1 in Respondents’ The parties are requested to brief their of such articles. Accordingly, the
Petition for Review). positions with reference to the Commission is interested in receiving
applicable law and the evidentiary written submissions that address the
(2) The Final ID’s determination that
record regarding the questions provided form of remedy, if any, that should be
Comcast has not sold accused products
below: ordered. If a party seeks exclusion of an
in the United States after the (1) As to whether the Legacy accused article from entry into the United States
importation of those products into the products are ‘‘articles that infringe’’ for purposes other than entry for
United States (the issue discussed in (Issue 2 in Respondents’ Petition for consumption, the party should so
section III of Rovi’s Petition for Review). Review): indicate and provide information
(3) The Final ID’s determination that Has Rovi shown (or has Comcast establishing that activities involving
the accused Legacy products are conceded) that a Legacy accused other types of entry either are adversely
‘‘articles that infringe’’ (Issue 2 in product that infringes the asserted affecting it or likely to do so. For
Respondents’ Petition for Review). patents (and if so, which patents) has background, see Certain Devices for
(4) The issue of whether the X1 been imported or re-imported by any Connecting Computers via Telephone
products are ‘‘articles that infringe’’ respondent or that respondent’s Lines, Inv. No. 337–TA–360, USITC
(Issue 3 in Respondents’ Petition for agent(s)? Pub. No. 2843 (December 1994)
Review), the issue of direct infringement (2) As to whether the X1 products are (Commission Opinion).
of the ’263 and ’413 patents by the X1 ‘‘articles that infringe’’ (Issue 3 in If the Commission contemplates some
accused products (Issue 5 in Respondents’ Petition for Review), the form of remedy, it must consider the
Respondents’ Petition for Review), and issue of direct infringement of the ’263 effects of that remedy upon the public
the issue of ‘‘the nature and scope of the and ’413 patents by the X1 accused interest. The factors the Commission
violation found’’ (the issue discussed in products (Issue 5 in Respondents’ will consider include the effect that an
section X of Respondents’ Petition for Petition for Review), and the issue of exclusion order and/or cease and desist
Review). ‘‘the nature and scope of the violation orders would have on (1) the public
(5) The issue of whether Comcast’s found’’ (the issue discussed in section X health and welfare, (2) competitive
two alternative designs infringe the ’263 of Respondents’ Petition for Review): conditions in the U.S. economy, (3) U.S.
and ’413 patents (Issue 4 in a. For purposes of giving rise to a production of articles that are like or
Respondents’ Petition for Review). section 337 violation and whether the directly competitive with those that are
(6) The Final ID’s claim construction X1 STBs are ‘‘articles that infringe,’’ is subject to investigation, and (4) U.S.
of ‘‘cancel a function of the second the importation of and infringement consumers. The Commission is
tuner to permit the second tuner to through the use of the X1 STBs therefore interested in receiving written
perform the requested tuning operation’’ distinguishable from the importation of submissions that address the
in the ’512 patent, and the Final ID’s and infringement through the use of the aforementioned public interest factors
infringement determinations as to that scanners in Suprema v. Int’l Trade in the context of this investigation.
patent (Issue 26 in Respondents’ Comm’n, 796 F.3d 1338 (Fed. Cir. The parties and the public are
Petition for Review). 2015)? For example, is Suprema requested to brief their positions
(7) The Final ID’s conclusion that the distinguishable because the imported regarding the public interest. The
asserted claims of the ’512 patent are X1 STBs require cooperation with Commission is particularly interested in
asabaliauskas on DSKBBXCHB2PROD with NOTICES

invalid as obvious (the issue discussed hardware (a mobile device and responses to the following:
in section VI.B.4 of Rovi’s Petition for Comcast’s servers) that is not imported Should the Commission tailor any
Review). by the respondents for an act of remedy to mitigate any harm considered
(8) The issue of whether the ARRIS- infringement to occur? Note that, in by the public interest factors? Please
Rovi Agreement provides a defense to Suprema, the imported scanners were provide any support, factual or
the allegations against the ARRIS ‘‘not standalone products,’’ but rather, otherwise, and relate that support to
respondents (the issue discussed in to function, the scanners had to ‘‘be specific public interest factors.
section XI of Respondents’ Petition for connected to a computer, and that If the Commission orders some form
Review). computer must have custom-developed of remedy, the U.S. Trade

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Document Created: 2017-08-16 10:26:56
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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		Ron Traud, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone 202-205-3427. 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, telephone 202-205-1810.
FR Citation		82 FR 38934