82 FR 49847 - Certain Radio Frequency Identification (“RFID”) Products and Components Thereof Commission Determination Finding No Violation of Section 337; Termination of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 207 (October 27, 2017)

Notice is hereby given that the U.S. International Trade Commission has determined to find no violation of section 337 of the Tariff Act of 1930, in the above-identified investigation. The investigation is terminated in its entirety.

[Federal Register Volume 82, Number 207 (Friday, October 27, 2017)]
[Notices]
[Pages 49847-49848]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-23366]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-979]


Certain Radio Frequency Identification (``RFID'') Products and 
Components Thereof Commission Determination Finding No Violation of 
Section 337; Termination of the Investigation

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 find no violation of section 337 of the 
Tariff Act of 1930, in the above-identified investigation. The 
investigation is terminated in its entirety.

FOR FURTHER INFORMATION CONTACT: Cathy Chen, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2392. 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 11, 2016, based on a complaint filed by Neology, Inc. of 
Poway, California (``Neology''). 81 FR 1205-06 (Jan. 11, 2016). The 
complaint, as supplemented, alleges violations of section 337 in the 
importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain radio 
frequency identification (``RFID'') products and components thereof by 
reason of infringement of certain claims of U.S. Patent Nos. 8,325,044 
(``the '044 patent''); 7,119,664 (``the '664 patent''); and 8,587,436 
(``the '436 patent''). The complaint further alleges that an industry 
in the United States exists as required by 19 U.S.C. 1337(a)(2). The 
notice of investigation named numerous respondents. Respondents Kapsch 
TrafficCom IVHS, Inc. of McLean, Virginia; Kapsch TrafficCom Holding 
Corp. of McLean, Virginia; Kapsch TrafficCom Canada, Inc. of 
Mississauga, Ontario, Canada; Star Systems International, Ltd. of Kwai 
Chung, Hong Kong; and STAR RFID Co., Ltd. of Bangkok, Thailand 
(collectively, ``Respondents'') remain in the investigation. The Office 
of Unfair Import Investigations is also a party in this investigation.
    All asserted claims of the '664 patent and certain asserted claims 
of the '044 patent and the '436 patent have been terminated from the 
investigation. See Comm'n Notice (Sept. 27, 2016). Only claims 13, 14, 
and 25 of the '044 patent and claims 1, 2, and 4 of the '436 patent 
remain in the investigation (collectively, ``the Asserted Claims'').
    On June 22, 2017, the ALJ issued her final ID finding no violation 
of section 337 by the Respondents in connection with the Asserted 
Claims. The final ID found that all of the Asserted Claims are invalid 
on multiple grounds. Had the Asserted Claims not been found invalid, 
the final ID also found that the accused products infringe the Asserted 
Claims; that Neology's domestic industry products practice claim 25 of 
the '044 patent and claims 1, 2, and 4 of the '436 patent; and that 
Neology has satisfied the economic prong of the domestic industry 
requirement as to the '044 and the '436 patents.
    Neology filed a timely petition for review of the final ID, 
challenging the final ID's finding that the Asserted Claims are 
invalid. That same day, the Commission's Investigative Attorney 
(``IA'') filed a contingent petition for review of the final ID and 
Respondents filed a joint contingent petition for review of the final 
ID. Neology and the IA both challenge certain of the final ID's 
findings with respect to the economic prong of the domestic industry 
requirement as to the '436 patent. Respondents also challenge the final 
ID's finding that the Asserted

[[Page 49848]]

Claims are not invalid under 35 U.S.C. 101. On July 13, 2017, the 
parties each filed a timely response to the petitions for review. On 
July 24, 2017, Respondents filed their public interest comments 
pursuant to Commission Rule 210.50(a)(4). Two days later, Neology filed 
a response to Respondents' public interest comments. The Commission 
also received public interest comments from multiple non-parties.
    On August 16, 2017, the Commission determined to review-in-part the 
final ID. Specifically, the Commission determined to review the 
following findings in the final ID: (1) The Asserted Claims are not 
entitled to claim priority to an earlier filing date; (2) the Asserted 
Claims are invalid under 35 U.S.C. 102, 103, and/or 112; (3) the 
Asserted Claims are not invalid under 35 U.S.C. 101; and (4) Neology 
has satisfied the economic prong of the domestic industry requirement 
with respect to the '436 patent. The Commission requested briefing from 
the parties on certain issues under review. The Commission did not 
solicit briefing from the parties and from the public on the issues of 
remedy, bonding, and the public interest.
    Having reviewed the parties' submissions and the record evidence, 
the Commission has determined to affirm, with modified reasoning, the 
ID's finding of no violation of section 337 by the Respondents in 
connection with the Asserted Claims because Respondents have shown that 
the Asserted Claims are invalid under 35 U.S.C. 102, 103 and/or 112. 
The Commission has also determined to affirm with modifications the 
ID's finding that the Asserted Claims are not entitled to claim 
priority to an earlier filing date. The Commission has further 
determined to take no position on the ID's findings that the Asserted 
Claims are directed at patent eligible subject matter under 35 U.S.C. 
101 and that Neology has satisfied the economic prong of the domestic 
industry requirement with respect to the '436 patent. A Commission 
opinion will be issued shortly.
    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: October 23, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-23366 Filed 10-26-17; 8:45 am]
 BILLING CODE 7020-02-P