82 FR 60038 - Certain Magnetic Data Storage Tapes and Cartridges Containing the Same; Commission Determination To Review-in-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions; Extension of Target Date for Completion of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 241 (December 18, 2017)

Page Range		60038-60041
FR Document		2017-27168

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 September 1, 2017, finding a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337'') in the above-captioned investigation. The Commission has also determined to extend the target date for completion of the above-captioned investigation to February 20, 2018.

Federal Register, Volume 82 Issue 241 (Monday, December 18, 2017)

[Federal Register Volume 82, Number 241 (Monday, December 18, 2017)]
[Notices]
[Pages 60038-60041]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-27168]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1012]

Certain Magnetic Data Storage Tapes and Cartridges Containing the
Same; Commission Determination To Review-in-Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions; Extension of Target Date for Completion 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 review in part the presiding
administrative law judge's (``ALJ'') final initial determination
(``Final ID'') issued on September 1, 2017, finding a violation of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337'') in the above-captioned investigation. The Commission
has also determined to extend the target date for completion of the
above-captioned investigation to February 20, 2018.

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 July 1, 2016, based on a Complaint filed by Fujifilm Corporation of
Tokyo, Japan, and Fujifilm Recording Media U.S.A., Inc. of Bedford,
Massachusetts (collectively, ``Fujifilm''). 81 FR 43243-44 (July 1,
2016). The Complaint alleges violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in the sale
for importation, importation, and sale within the United States after
importation of certain magnetic data storage tapes and cartridges
containing the same by reason of infringement of certain claims of U.S.
Patent Nos. 6,641,891 (``the '891 patent''); 6,703,106 (``the '106
patent''); 6,703,101 (``the '101 patent''); 6,767,612 (``the '612
patent''); 8,236,434 (``the '434 patent''); and 7,355,805 (``the '805
patent''). The Complaint further alleges the existence of a domestic
industry. The Commission's Notice of Investigation named as respondents
Sony Corporation of Tokyo, Japan, Sony Corporation of America of New
York, New York, and Sony Electronics Inc. of San Diego, California
(collectively, ``Sony''). The Office of Unfair Import Investigations
(``OUII'') was also named as a party to the investigation. The
Commission later terminated the investigation as to the '101 patent.
Order No. 24 (Jan. 18, 2017); Notice (Feb. 15, 2017).
On September 1, 2017, the ALJ issued his final ID finding a
violation of section 337 with respect to claims 1, 4-9, 11, and 14 of
the '891 patent and asserted claims 1, 2, 4, 5, 7, and 8 of the '612
patent. The ALJ found no violation of section 337 with respect to
asserted claims 9-11 of the '612 patent; asserted claim 2, 5, and 6 of
the '106 patent; asserted claim 1 of the '434 patent; and asserted
claims 3 and 10 of the '805 patent.
In particular, the Final ID finds that Sony's accused products
infringe claims 1, 4-9, 11, and 14 of the '891 Patent under 35 U.S.C.
271(a). The Final ID also finds that Fujifilm's domestic industry
(``DI'') products practice the asserted claims of the '891 Patent, thus
Fujifilm has satisfied the technical prong of the domestic industry
requirement with respect to the '891 Patent regarding its LTO-6 and
LTO-7 DI products. The Final ID finds that Sony has not shown that the
asserted claims of the '891 Patent are invalid under 35 U.S.C. 102,
103, or 112.
The Final ID finds that Sony's accused products infringe asserted
claims 1, 2, 4, 5, 7, and 8 of the '612 Patent under 35 U.S.C. 271(a).
The Final ID finds, however, that Fujifilm failed to show that Sony has
induced infringement of claims 9-11 of the '612 Patent under 35 U.S.C.
271(b). The Final ID further finds that Fujifilm's DI products practice
claims 1, 2, 4, 5, and 7-11 of the '612 Patent and, thus, Fujifilm has
satisfied the technical prong of the domestic industry requirement with
respect to the '612 Patent regarding its LTO-6 and LTO-7 DI products.
The Final ID finds that Sony has not shown that the asserted claims of
the '612 Patent are invalid under 35 U.S.C. 102, 103, or 112.
The Final ID finds that the accused products do not infringe
asserted claims 2, 5, and 6 of the '106 Patent under 35 U.S.C. 271(a).
The Final ID further finds that neither Fujifilm's LTO-6 nor LTO-7 DI
products practice any claim of the '106 Patent, thus Fujifilm has
failed to satisfy the technical prong of the domestic industry
requirement with respect to the '106 Patent. The Final ID also finds
that Sony has not shown that the asserted claims of the '106 Patent are
invalid under 35 U.S.C. 102 or 103, but has shown that the asserted
claims of the '106 Patent are indefinite under 35 U.S.C. 112.
The Final ID finds that the accused products do not infringe
asserted claim 1 of the '434 under 35 U.S.C. 271(a). The Final ID
further finds that Fujifilm's LTO-7 DI products do not practice any
claim of the '434 Patent, thus Fujifilm has failed to satisfy the
technical prong of the domestic industry requirement with respect to
the '434 Patent. The Final ID finds that Sony has not shown that the
asserted claims of the '434 Patent are invalid under 35 U.S.C. 102,
103, or 112.
The Final ID finds the accused products do not infringe asserted
claims 3 and 10 of the '805 Patent under 35 U.S.C. 271(a). The Final ID
further finds that Fujifilm's LTO-7 DI products practice claims 1, 2,
3, and 10 of the '805 Patent. The Commission notes that the Final ID
misstates its finding concerning the technical prong in the Conclusions
of Fact and Law with respect to the '805 Patent The Final ID finds that
Sony has not shown that the asserted claims of the '805 Patent are
invalid under 35 U.S.C. 102, 103, or 112.
The Final ID finds that Fujifilm has satisfied the economic prong
of the domestic industry requirement with

[[Page 60039]]

respect to the '891, '612, and '106 Patent pursuant to 19 U.S.C. 337(A)
and (B) for the asserted LTO-6 DI products. The Final ID finds that
Fujifilm has not satisfied the economic prong requirement for the
asserted LTO-7 DI products, which Fujifilm asserted alone with respect
to the '434 and '805 patents.
The Final ID finds Sony has not shown that the '612, '106, and '805
Patents are essential to the LTO-7 Standard. The Final ID also finds
that Fujifilm has not breached any provisions of the Fujifilm AP-75
agreement, in particular Sec. Sec. 8.2 or 11.11. The Final ID further
finds that Sony has not shown that the AP-75 agreement warrants barring
Fujifilm's claims or terminating the investigation. The Final ID also
finds that patent misuse does apply to bar Fujifilm's claims. The Final
ID further finds that Fujifilm has not waived its rights to enforce the
patents-in-suit. The Final ID also finds that Sony does not have an
implied license to the patents-in-suit. The Final ID further finds that
Sony has not shown that patent exhaustion applies.
On September 12, 2017, the ALJ issued his recommended determination
on remedy and bonding. As instructed by the Commission, the ALJ also
made findings concerning the public interest factors set forth in 19
U.S.C. 1337(d)(1) and (f)(1). See 81 FR 43243. The ALJ recommended that
the appropriate remedy is a limited exclusion order and a cease and
desist order against Sony. The ALJ recommended that the Commission
require no bond during the period of Presidential review. The ALJ
further found that public interest factors do not bar or require
tailoring the recommended exclusion order. The ALJ also found that even
if the asserted claims are essential, the public interest does not
favor tailoring or curbing and exclusion order because Fujifilm did not
breach its obligations under the AP-75 Agreement.
On September 18, 2017, Sony and OUII each filed petitions for
review of various aspects of the Final ID. Also on September 18, 2017,
Fujifilm filed a contingent petition for review of various aspects of
the Final ID.
Sony petitions for review of the Final ID's finding that the
asserted claims of the '891 Patent are not invalid as indefinite,
anticipated, or obvious. Sony also petitions for review of the Final
ID's findings that Sony's accused products infringe the asserted claims
1, 2, 4, 5, 7, and 8 of the '612 Patent and that the asserted claims of
the '612 Patent are not invalid as obvious or indefinite. Sony
contingently petitions for review of the Final ID's finding that the
asserted claims are not invalid as obvious. Sony also contingently
petitions for review of the Final ID's findings that the asserted claim
of the '434 Patent is not invalid as indefinite or obvious. Sony
further contingently petitions for review of the Final ID's findings
that claims 3 and 10 are not invalid as anticipated. Sony also
petitions for review of the Final ID's finding regarding Fujifilm's AP-
75 Agreement. Sony further petitions for review of the Final ID's
finding that Fujifilm has satisfied the economic prong of the domestic
industry requirement with respect to its LTO-6 DI products.
OUII petitions for review of the Final ID's finding that Fujifilm
failed to satisfy the technical prong of the domestic industry
requirement with respect to the '434 Patent and that Sony's accused
products do not infringe claim 1 of the '434 Patent.
Fujifilm contingently petitions for review of the Final ID's
findings that Sony's accused LTO-7 products do not infringe claim 1 of
the '434 Patent and that Fujifilm's LTO-7 DI products do not satisfy
the technical prong with respect to claim 1 of the '434 Patent.
Fujifilm also contingently petitions for review of the Final ID's
finding that Sony's accused products do not infringe the asserted
claims of the '805 Patent. Fujifilm further contingently petitions for
review of the Final ID's findings that Sony's accused LTO-7 products do
not infringe the asserted claims of the '106 Patent, that Fujifilm's
LTO products do not satisfy the technical prong with respect to the
asserted claims of the '106 Patent, and that the asserted claims of the
'106 Patent are invalid as indefinite. Fujifilm also contingently
petitions for review of the Final ID's findings with respect to
secondary considerations of non-obviousness with respect to the
patents-in-suit. Fujifilm further contingently petitions for review of
the Final ID's finding that Fujifilm has failed to satisfy the economic
prong with respect to its LTO-7 DI products.
On September 26, 2017, Fujifilm, Sony, and OUII filed responses to
the various petitions for review.
On October 6, 2017, Fujifilm filed a post-RD statement on the
public interest pursuant to Commission Rule 210.50(a)(4). Sony filed
its statement on October 13, 2017. No responses were filed by the
public in response to the post-RD Commission Notice issued on September
13, 2017. See Notice of Request for Statements on the Public Interest
(Sept. 13, 2017); 82 FR 43567-68 (Sept. 18, 2017).
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.
Specifically, the Commission has determined to review-in-part the
Final ID's finding of violation with respect to the '891 Patent. In
particular, the Commission has determined to review the Final ID's
findings with respect to anticipation and obviousness. The Commission
has further determined to review the Final ID's findings concerning
secondary considerations.
The Commission has also determined to review-in-part the Final ID's
finding of violation with respect to the '612 Patent. Specifically, the
Commission has determined to review the Final ID's finding that the
asserted claims of the '612 Patent are not obvious. Accordingly, the
Commission has also determined to review the Final ID's finding that
Fujifilm has satisfied the technical prong of the domestic industry
requirement with respect to the '612 Patent.
The Commission has further determined to review-in-part the Final
ID's findings with respect to the '106 Patent. Specifically, the
Commission has determined not to review the Final ID's finding that the
asserted claims of the '106 Patent are invalid as indefinite. The
Commission has also determined to determine to review the Final ID's
findings with respect to obviousness, infringement, and the technical
prong of the domestic industry requirement.
The Commission has also determined to review-in-part the Final ID's
findings with respect to the '434 Patent. Specifically the Commission
has determined to review the Final ID's finding that Sony's accused
LTO-7 products do not infringe claim 1 of the '434 Patent. The
Commission has also determined to review the Final ID's finding that
Fujifilm's LTO-7 DI products do not practice claim 1. The Commission
has further determined to review the Final ID's finding that claim 1 is
not obvious.
The Commission has further determined to review-in-part the Final
ID's findings with respect to the '805 Patent. Specifically, the
Commission has determined to review the Final ID's finding that Sony's
accused LTO-7 products do not infringe asserted claims 3 and 10 of the
'805 Patent. The Commission has also determined to review the Final
ID's finding that U.S. Patent No. 6,710,967 (``Hennecken'') does not
anticipate claims 3 and 10.
The Commission has also determined review the Final ID's findings
that the asserted claims of the '612, '106, and '805 Patents are not
essential to the LTO-7 Standard.

[[Page 60040]]

The Commission has further determined to review the Final ID's
findings concerning the economic prong of the domestic industry.
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. With respect to claim 1 of the '434 patent, please address the
proper scope of the limitations ``a power spectrum density at a pitch
of 10 micrometers ranges from 800 to 10,000 nm\3\ on the magnetic layer
surface.'' In particular, please explain whether the entirety of the
claimed ``magnetic layer surface'' must exhibit the recited range of
power spectrum densities such that a finding of infringement would
require that no portion of the claimed ``magnetic layer surface''
exhibits a power spectrum density outside of the claimed range.
2. With respect to claim 1 of the '434 patent, please address the
proper scope of the limitations ``a power spectrum density at a pitch
of 10 micrometers ranges from 20,000 to 80,000 nm\3\ on the backcoat
layer surface.'' In particular, please explain whether the entirety of
the claimed ``backcoat layer surface'' must exhibit the recited range
of power spectrum densities such that a finding of infringement would
require that no portion of the claimed ``backcoat layer surface''
exhibits a power spectrum density outside of the claimed range.
3. Please address whether the backcoat layer of the accused
products exhibit any power spectrum density values outside of the range
recited in claim 1 of the '434 patent.
4. Please address whether the backcoat layer of the asserted
domestic industry products exhibit any power spectrum density values
outside of the range recited in claim 1 of the '434 patent.
5. Please address whether the magnetic layer of the asserted
domestic industry products exhibit any power spectrum density values
outside of the range recited in claim 1 of the '434 patent.
6. Please address how the asserted domestic industry products
practice the limitation ``a first step of encoding data for specifying
a servo band where the servo signal positions'' recited in claims 3 and
10 of the '805 patent and how, or if, that informs whether the accused
products infringe that claim limitation.
7. Please provide a comparison of Fujifilm's domestic revenues to
its global revenues for the LTO-6 DI Products for fiscal year 2013-
2015, and address whether Fujifilm's domestic investments in the LTO-6
are significant in this context.
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 December 27, 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 January 5, 2018. 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-1012'') 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

[[Page 60041]]

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,\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 Commission has also determined to extend the target date for
completion of the above-captioned investigation to February 20, 2018.
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: December 12, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-27168 Filed 12-15-17; 8:45 am]
BILLING CODE 7020-02-P

60038 Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Notices

An agency may not conduct or The public record for this investigation Sony has not shown that the asserted
sponsor, and a person is not required to may be viewed on the Commission’s claims of the ’891 Patent are invalid
respond to, a collection of information electronic docket (EDIS) at https:// under 35 U.S.C. 102, 103, or 112.
unless it displays a currently valid OMB edis.usitc.gov. Hearing-impaired The Final ID finds that Sony’s
control number. persons are advised that information on accused products infringe asserted
ONRR Information Collection this matter can be obtained by claims 1, 2, 4, 5, 7, and 8 of the ’612
Clearance Officer: Luis Aguilar (303) contacting the Commission’s TDD Patent under 35 U.S.C. 271(a). The Final
231–3418. terminal on (202) 205–1810. ID finds, however, that Fujifilm failed to
Authority: The authorities for this action SUPPLEMENTARY INFORMATION: The show that Sony has induced
are the Outer Continental Shelf Lands Act Commission instituted this investigation infringement of claims 9–11 of the ’612
Amendments of 1978 (43 U.S.C. 1337) and on July 1, 2016, based on a Complaint Patent under 35 U.S.C. 271(b). The Final
the Paperwork Reduction Act of 1995 (44 filed by Fujifilm Corporation of Tokyo, ID further finds that Fujifilm’s DI
U.S.C. 3501 et. seq.).
Japan, and Fujifilm Recording Media products practice claims 1, 2, 4, 5, and
U.S.A., Inc. of Bedford, Massachusetts 7–11 of the ’612 Patent and, thus,
Gregory J. Gould,
(collectively, ‘‘Fujifilm’’). 81 FR 43243– Fujifilm has satisfied the technical
Director for Office of Natural Resources
44 (July 1, 2016). The Complaint alleges prong of the domestic industry
Revenue.
violations of section 337 of the Tariff requirement with respect to the ’612
[FR Doc. 2017–27204 Filed 12–15–17; 8:45 am]
Act of 1930, as amended, 19 U.S.C. 1337 Patent regarding its LTO–6 and LTO–7
BILLING CODE 4335–30–P DI products. The Final ID finds that
(‘‘section 337’’), in the sale for
Sony has not shown that the asserted
importation, importation, and sale
claims of the ’612 Patent are invalid
INTERNATIONAL TRADE within the United States after
under 35 U.S.C. 102, 103, or 112.
COMMISSION importation of certain magnetic data The Final ID finds that the accused
storage tapes and cartridges containing products do not infringe asserted claims
[Investigation No. 337–TA–1012] the same by reason of infringement of 2, 5, and 6 of the ’106 Patent under 35
certain claims of U.S. Patent Nos. U.S.C. 271(a). The Final ID further finds
Certain Magnetic Data Storage Tapes 6,641,891 (‘‘the ’891 patent’’); 6,703,106
and Cartridges Containing the Same; that neither Fujifilm’s LTO–6 nor LTO–
(‘‘the ’106 patent’’); 6,703,101 (‘‘the ’101 7 DI products practice any claim of the
Commission Determination To Review- patent’’); 6,767,612 (‘‘the ’612 patent’’);
in-Part a Final Initial Determination ’106 Patent, thus Fujifilm has failed to
8,236,434 (‘‘the ’434 patent’’); and satisfy the technical prong of the
Finding a Violation of Section 337; 7,355,805 (‘‘the ’805 patent’’). The
Request for Written Submissions; domestic industry requirement with
Complaint further alleges the existence respect to the ’106 Patent. The Final ID
Extension of Target Date for of a domestic industry. The
Completion of the Investigation also finds that Sony has not shown that
Commission’s Notice of Investigation the asserted claims of the ’106 Patent are
AGENCY: U.S. International Trade named as respondents Sony Corporation invalid under 35 U.S.C. 102 or 103, but
Commission. of Tokyo, Japan, Sony Corporation of has shown that the asserted claims of
ACTION: Notice. America of New York, New York, and the ’106 Patent are indefinite under 35
Sony Electronics Inc. of San Diego, U.S.C. 112.
SUMMARY: Notice is hereby given that California (collectively, ‘‘Sony’’). The The Final ID finds that the accused
the U.S. International Trade Office of Unfair Import Investigations products do not infringe asserted claim
Commission has determined to review (‘‘OUII’’) was also named as a party to 1 of the ’434 under 35 U.S.C. 271(a). The
in part the presiding administrative law the investigation. The Commission later Final ID further finds that Fujifilm’s
judge’s (‘‘ALJ’’) final initial terminated the investigation as to the LTO–7 DI products do not practice any
determination (‘‘Final ID’’) issued on ’101 patent. Order No. 24 (Jan. 18, claim of the ’434 Patent, thus Fujifilm
September 1, 2017, finding a violation 2017); Notice (Feb. 15, 2017). has failed to satisfy the technical prong
of section 337 of the Tariff Act of 1930, On September 1, 2017, the ALJ issued of the domestic industry requirement
as amended, 19 U.S.C. 1337 (‘‘section his final ID finding a violation of section with respect to the ’434 Patent. The
337’’) in the above-captioned 337 with respect to claims 1, 4–9, 11, Final ID finds that Sony has not shown
investigation. The Commission has also and 14 of the ’891 patent and asserted that the asserted claims of the ’434
determined to extend the target date for claims 1, 2, 4, 5, 7, and 8 of the ’612 Patent are invalid under 35 U.S.C. 102,
completion of the above-captioned patent. The ALJ found no violation of 103, or 112.
investigation to February 20, 2018. section 337 with respect to asserted The Final ID finds the accused
FOR FURTHER INFORMATION CONTACT: claims 9–11 of the ’612 patent; asserted products do not infringe asserted claims
Megan M. Valentine, Office of the claim 2, 5, and 6 of the ’106 patent; 3 and 10 of the ’805 Patent under 35
General Counsel, U.S. International asserted claim 1 of the ’434 patent; and U.S.C. 271(a). The Final ID further finds
Trade Commission, 500 E Street SW, asserted claims 3 and 10 of the ’805 that Fujifilm’s LTO–7 DI products
Washington, DC 20436, telephone (202) patent. practice claims 1, 2, 3, and 10 of the
708–2301. Copies of non-confidential In particular, the Final ID finds that ’805 Patent. The Commission notes that
documents filed in connection with this Sony’s accused products infringe claims the Final ID misstates its finding
investigation are or will be available for 1, 4–9, 11, and 14 of the ’891 Patent concerning the technical prong in the
inspection during official business under 35 U.S.C. 271(a). The Final ID Conclusions of Fact and Law with
hours (8:45 a.m. to 5:15 p.m.) in the also finds that Fujifilm’s domestic respect to the ’805 Patent The Final ID
daltland on DSKBBV9HB2PROD with NOTICES

Office of the Secretary, U.S. industry (‘‘DI’’) products practice the finds that Sony has not shown that the
International Trade Commission, 500 E asserted claims of the ’891 Patent, thus asserted claims of the ’805 Patent are
Street SW, Washington, DC 20436, Fujifilm has satisfied the technical invalid under 35 U.S.C. 102, 103, or
telephone (202) 205–2000. General prong of the domestic industry 112.
information concerning the Commission requirement with respect to the ’891 The Final ID finds that Fujifilm has
may also be obtained by accessing its Patent regarding its LTO–6 and LTO–7 satisfied the economic prong of the
internet server at https://www.usitc.gov. DI products. The Final ID finds that domestic industry requirement with

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Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Notices 60039

respect to the ’891, ’612, and ’106 Patent the asserted claims are not invalid as petitions for review, and the responses
pursuant to 19 U.S.C. 337(A) and (B) for obvious. Sony also contingently thereto, the Commission has determined
the asserted LTO–6 DI products. The petitions for review of the Final ID’s to review the Final ID in part.
Final ID finds that Fujifilm has not findings that the asserted claim of the Specifically, the Commission has
satisfied the economic prong ’434 Patent is not invalid as indefinite determined to review-in-part the Final
requirement for the asserted LTO–7 DI or obvious. Sony further contingently ID’s finding of violation with respect to
products, which Fujifilm asserted alone petitions for review of the Final ID’s the ’891 Patent. In particular, the
with respect to the ’434 and ’805 findings that claims 3 and 10 are not Commission has determined to review
patents. invalid as anticipated. Sony also the Final ID’s findings with respect to
The Final ID finds Sony has not petitions for review of the Final ID’s anticipation and obviousness. The
shown that the ’612, ’106, and ’805 finding regarding Fujifilm’s AP–75 Commission has further determined to
Patents are essential to the LTO–7 Agreement. Sony further petitions for review the Final ID’s findings
Standard. The Final ID also finds that review of the Final ID’s finding that concerning secondary considerations.
Fujifilm has not breached any Fujifilm has satisfied the economic The Commission has also determined
provisions of the Fujifilm AP–75 prong of the domestic industry to review-in-part the Final ID’s finding
agreement, in particular §§ 8.2 or 11.11. requirement with respect to its LTO–6 of violation with respect to the ’612
The Final ID further finds that Sony has DI products. Patent. Specifically, the Commission
not shown that the AP–75 agreement OUII petitions for review of the Final has determined to review the Final ID’s
warrants barring Fujifilm’s claims or ID’s finding that Fujifilm failed to finding that the asserted claims of the
terminating the investigation. The Final satisfy the technical prong of the ’612 Patent are not obvious.
ID also finds that patent misuse does domestic industry requirement with Accordingly, the Commission has also
apply to bar Fujifilm’s claims. The Final respect to the ’434 Patent and that determined to review the Final ID’s
ID further finds that Fujifilm has not Sony’s accused products do not infringe finding that Fujifilm has satisfied the
waived its rights to enforce the patents- claim 1 of the ’434 Patent. technical prong of the domestic industry
in-suit. The Final ID also finds that Fujifilm contingently petitions for requirement with respect to the ’612
Sony does not have an implied license review of the Final ID’s findings that Patent.
to the patents-in-suit. The Final ID Sony’s accused LTO–7 products do not The Commission has further
further finds that Sony has not shown infringe claim 1 of the ’434 Patent and determined to review-in-part the Final
that patent exhaustion applies. that Fujifilm’s LTO–7 DI products do ID’s findings with respect to the ’106
On September 12, 2017, the ALJ not satisfy the technical prong with Patent. Specifically, the Commission
issued his recommended determination respect to claim 1 of the ’434 Patent. has determined not to review the Final
on remedy and bonding. As instructed Fujifilm also contingently petitions for ID’s finding that the asserted claims of
by the Commission, the ALJ also made review of the Final ID’s finding that the ’106 Patent are invalid as indefinite.
findings concerning the public interest Sony’s accused products do not infringe The Commission has also determined to
factors set forth in 19 U.S.C. 1337(d)(1) the asserted claims of the ’805 Patent. determine to review the Final ID’s
and (f)(1). See 81 FR 43243. The ALJ Fujifilm further contingently petitions findings with respect to obviousness,
recommended that the appropriate for review of the Final ID’s findings that infringement, and the technical prong of
remedy is a limited exclusion order and Sony’s accused LTO–7 products do not the domestic industry requirement.
a cease and desist order against Sony. infringe the asserted claims of the ’106 The Commission has also determined
The ALJ recommended that the Patent, that Fujifilm’s LTO products do to review-in-part the Final ID’s findings
Commission require no bond during the not satisfy the technical prong with with respect to the ’434 Patent.
period of Presidential review. The ALJ respect to the asserted claims of the ’106 Specifically the Commission has
further found that public interest factors Patent, and that the asserted claims of determined to review the Final ID’s
do not bar or require tailoring the the ’106 Patent are invalid as indefinite. finding that Sony’s accused LTO–7
recommended exclusion order. The ALJ Fujifilm also contingently petitions for products do not infringe claim 1 of the
also found that even if the asserted review of the Final ID’s findings with ’434 Patent. The Commission has also
claims are essential, the public interest respect to secondary considerations of determined to review the Final ID’s
does not favor tailoring or curbing and non-obviousness with respect to the finding that Fujifilm’s LTO–7 DI
exclusion order because Fujifilm did not patents-in-suit. Fujifilm further products do not practice claim 1. The
breach its obligations under the AP–75 contingently petitions for review of the Commission has further determined to
Agreement. Final ID’s finding that Fujifilm has review the Final ID’s finding that claim
On September 18, 2017, Sony and failed to satisfy the economic prong 1 is not obvious.
OUII each filed petitions for review of with respect to its LTO–7 DI products. The Commission has further
various aspects of the Final ID. Also on On September 26, 2017, Fujifilm, determined to review-in-part the Final
September 18, 2017, Fujifilm filed a Sony, and OUII filed responses to the ID’s findings with respect to the ’805
contingent petition for review of various various petitions for review. Patent. Specifically, the Commission
aspects of the Final ID. On October 6, 2017, Fujifilm filed a has determined to review the Final ID’s
Sony petitions for review of the Final post-RD statement on the public interest finding that Sony’s accused LTO–7
ID’s finding that the asserted claims of pursuant to Commission Rule products do not infringe asserted claims
the ’891 Patent are not invalid as 210.50(a)(4). Sony filed its statement on 3 and 10 of the ’805 Patent. The
indefinite, anticipated, or obvious. Sony October 13, 2017. No responses were Commission has also determined to
also petitions for review of the Final filed by the public in response to the review the Final ID’s finding that U.S.
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ID’s findings that Sony’s accused post-RD Commission Notice issued on Patent No. 6,710,967 (‘‘Hennecken’’)
products infringe the asserted claims 1, September 13, 2017. See Notice of does not anticipate claims 3 and 10.
2, 4, 5, 7, and 8 of the ’612 Patent and Request for Statements on the Public The Commission has also determined
that the asserted claims of the ’612 Interest (Sept. 13, 2017); 82 FR 43567– review the Final ID’s findings that the
Patent are not invalid as obvious or 68 (Sept. 18, 2017). asserted claims of the ’612, ’106, and
indefinite. Sony contingently petitions Having examined the record of this ’805 Patents are not essential to the
for review of the Final ID’s finding that investigation, including the Final ID, the LTO–7 Standard.

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Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Notices 60041

statement of the reasons why the inconsistent with the public interest.’’ Registrant with a copy of the Order to
Commission should grant such GX 5, at 1 (citing 21 U.S.C. 823(f)). Show Cause why Registrant’s
treatment. See 19 CFR 201.6. Documents As to the Agency’s jurisdiction, the application for a new DEA COR should
for which confidential treatment by the Show Cause Order alleged that, on not be denied.’’ GX 6, at 2 (hereinafter,
Commission is properly sought will be February 14, 2017, Applicant applied DI Declaration). Based on the
treated accordingly. All information, for DEA Certificate of Registration. GX Government’s sworn statement, I find
including confidential business 5, at 2. See also GX 4 (DEA Form 224 that the Government’s service of the
information and documents for which submitted by Applicant). Show Cause Order on Applicant was
confidential treatment is properly As the substantive grounds for the
legally sufficient.
sought, submitted to the Commission for proceeding, the Show Cause Order
purposes of this Investigation may be alleged that Applicant was registered In its Request for Final Agency Action
disclosed to and used: (i) By the with the DEA as a practitioner in dated August 25, 2017, the Government
Commission, its employees and Offices, schedules II through V pursuant to represented that ‘‘more than thirty days
and contract personnel (a) for Certificate of Registration No. have passed since the Order to Show
developing or maintaining the records AT9432460, and that Applicant Cause was served on . . . [Applicant]
of this or a related proceeding, or (b) in surrendered that registration for cause and no request for hearing or other
internal investigations, audits, reviews, on November 29, 2016. GX 5, at 1. The correspondence has been received by
and evaluations relating to the Show Cause Order further alleged that DEA.’’ Request for Final Agency Action
programs, personnel, and operations of Applicant ‘‘continued to issue (hereinafter, RFAA), at 1. The
the Commission including under 5 prescriptions for controlled substances’’ Government requested that Applicant’s
U.S.C. Appendix 3; or (ii) by U.S. after he surrendered that DEA application for a DEA Certificate of
government employees and contract registration. GX 5, at 2. According to the Registration be denied based on
personnel,1 solely for cybersecurity Show Cause Order, ‘‘DEA’s
Applicant’s ‘‘issuing prescriptions
purposes. All nonconfidential written investigation of . . . [Applicant’s]
without a DEA COR and then
submissions will be available for public medical practice reveals that . . .
[Applicant] issued approximately 17 committing a material falsification on
inspection at the Office of the Secretary his subsequent application for a new
and on EDIS. prescriptions for controlled substances
after November 29, 2016 in violation of DEA COR.’’ RFAA, at 5.
The Commission has also determined
to extend the target date for completion Federal law.’’ Id. (citing 21 U.S.C. 841(a) Based on the Government’s sworn
of the above-captioned investigation to and 843(a)(2)). statement and written representations,
The Show Cause Order further alleged and based on my review of the record,
February 20, 2018.
that Applicant materially falsified his I find that more than 30 days have now
The authority for the Commission’s
application for a Certificate of passed since the date on which
determination is contained in section
Registration. GX 5, at 2. Specifically, the Applicant was served with the Show
337 of the Tariff Act of 1930, as
Show Cause Order alleged that Cause Order. Further, based on the
amended (19 U.S.C. 1337), and in part
Applicant’s material falsification was Government’s written representations, I
210 of the Commission’s Rules of
his having ‘‘answered ‘no’ when asked, find that neither Applicant, nor anyone
Practice and Procedure (19 CFR part
‘[h]as the applicant ever surrendered
210). purporting to represent him, has
(for cause) or had a federal controlled
By order of the Commission. requested a hearing, submitted a written
substance(s) registration revoked,
Issued: December 12, 2017. suspended, restricted, or denied, or is statement while waiving Applicant’s
Lisa R. Barton, any such answer pending.’ ’’ GX 5, at 2. right to a hearing, or submitted a
According to the Show Cause Order, corrective action plan. Accordingly, I
Secretary to the Commission.
‘‘this answer represents a material find that Applicant has waived his right
[FR Doc. 2017–27168 Filed 12–15–17; 8:45 am]
falsification on an application for a DEA to a hearing and his right to submit a
BILLING CODE 7020–02–P
Registration and, as such, is sufficient written statement and corrective action
for denial of the pending application.’’ plan. 21 CFR 1301.43(d) and 21 U.S.C.
GX 5, at 2 (citing 21 U.S.C. 843(a)(4) and 824(c)(2)(C). I, therefore, issue this
DEPARTMENT OF JUSTICE 824(a)(1)). Decision and Order based on the record
The Show Cause Order notified submitted by the Government. 21 CFR
Drug Enforcement Administration
Applicant of his right to request a 1301.43(e).
Michel P. Toret, M.D.; Decision and hearing on the allegations or to submit
a written statement while waiving his Findings of Fact
Order
right to a hearing, the procedures for Jurisdictional Facts
On July 13, 2017, the Acting Assistant electing each option, and the
Administrator, Diversion Control consequences for failing to elect either On or about February 13, 2017,
Division, Drug Enforcement option. GX 5, at 2 (citing 21 CFR Applicant submitted an application for
Administration (hereinafter, DEA or 1301.43). The Show Cause Order also a DEA registration under the Controlled
Government), issued an Order to Show notified Applicant of the opportunity to Substances Act. GX 4. On that
Cause to Michel P. Toret, M.D. submit a corrective action plan. GX 5, at application, Applicant certified to the
(hereinafter, Applicant) of Jeannette, 3 (citing 21 U.S.C. 824(c)(2)(C)). truth and correctness of the information
Pennsylvania. GX 5. The Show Cause he furnished on the application,
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Order proposed the denial of Adequacy of Service
including that he never ‘‘surrendered
Applicant’s application for a DEA By Declaration dated August 23, 2017, (for cause) or had a federal controlled
Certificate of Registration on the ground a Diversion Investigator (hereinafter,
substance registration revoked,
that Applicant’s ‘‘registration is DI), who described herself as the lead DI
suspended, restricted or denied.’’ Id. at
assigned to the regulatory matter
1 All contract personnel will sign appropriate involving Applicant, stated that, on July 1. Based on the evidence in the record,
nondisclosure agreements. 21, 2017, she ‘‘personally served I find that this certification was false.

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Document Created: 2017-12-15 23:54:47
Document Modified: 2017-12-15 23:54:47

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 60038