82 FR 61792 - Certain Access Control Systems and Components Thereof Notice of Commission Determination To Review in Part a Final Initial Determination; Schedule for Filing Written Submissions; Extension of Target Date

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 249 (December 29, 2017)

Page Range		61792-61794
FR Document		2017-28135

Notice is hereby given that the U.S. International Trade Commission has determined to review in part the final initial determination (``ID'') issued by the presiding administrative law judge (``ALJ'') on October 23, 2017, finding a violation of section 337 of the Tariff Act of 1930, as amended, as to claims 1-4, 7-12, 15, and 16 of U.S. Patent No. 7,161,319 (``the '319 patent'') and no violation of section 337 as to claim 34 of U.S. Patent No. 7,339,336 (``the '336 patent''). The Commission has also determined to extend the target date to March 2, 2018.

Federal Register, Volume 82 Issue 249 (Friday, December 29, 2017)

[Federal Register Volume 82, Number 249 (Friday, December 29, 2017)]
[Notices]
[Pages 61792-61794]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-28135]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1016]

Certain Access Control Systems and Components Thereof Notice of
Commission Determination To Review in Part a Final Initial
Determination; Schedule for Filing Written Submissions; Extension of
Target Date

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 final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on October 23, 2017, finding a violation of section 337 of
the Tariff Act of 1930, as amended, as to claims 1-4, 7-12, 15, and 16
of U.S. Patent No. 7,161,319 (``the '319 patent'') and no violation of
section 337 as to claim 34 of U.S. Patent No. 7,339,336 (``the '336
patent''). The Commission has also determined to extend the target date
to March 2, 2018.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone 202-205-3042. 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 (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 August 9, 2016, based on a complaint filed by The Chamberlain Group,
Inc. of Elmhurst, Illinois (``Chamberlain'' or ``CGI''). 81 FR 52713
(Aug. 9, 2016). The complaint alleges violations of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation
into the United States, the sale for importation, and the sale within
the United States after importation of certain access control systems
and components thereof by reason of infringement of one or more of
claims 1, 10-12, and 18-25 of U.S. Patent No. 7,196,611 (``the '611
patent''); claims 1-4, 7-12, 15, and 16 of the '319 patent; and claims
7, 11-13,15-23, and 34-36 of the '336 patent. Id. The notice of
investigation named the following respondents: Techtronic Industries
Company Ltd. of Tsuen Wan, Hong Kong; Techtronic Industries North
America Inc. of Hunt Valley, Maryland; One World Technologies, Inc. of
Anderson, South Carolina; OWT Industries, Inc. of Pickens, South
Carolina; ET Technology (Wuxi). Co., Ltd. of Zhejiang, China
(collectively, ``Respondents''); and Ryobi Technologies Inc. of
Anderson, South Carolina (``Ryobi''). Id. The Office of Unfair Import
Investigations is not a party to the investigation.
On October 27, 2016, the Commission determined not to review the
ALJ's order (Order No. 4) granting a motion to amend the Notice of
Investigation to include the following two additional respondents:
Techtronic Trading Limited of Kwai Chung, Hong Kong; and Techtronic
Industries Factory Outlets Inc., d/b/a Direct Tools Factory Outlet of
Anderson, South Carolina (collectively, ``Techtronic''). See Order No.
4, Comm'n Notice of Non-Review (Oct. 27, 2016).

[[Page 61793]]

On November 7, 2016, the Commission determined not to review the
ALJ's order (Order No. 6) terminating the investigation as to Ryobi.
See Order No. 6, Comm'n Notice of Non-Review (Nov. 7, 2016).
On March 15, 2017, the Commission determined not to review the
ALJ's order (Order No. 15) granting a motion to terminate the
investigation as to Techtronic. Order No. 15, Comm'n Notice of Non-
Review (Mar. 15, 2017).
On March 20, 2017, the Commission determined not to review the
ALJ's order (Order No. 28) granting a motion to terminate the
investigation as to the '611 patent. Order No. 28; Comm'n Notice of
Non-Review (Mar. 20, 2017).
On March 27, 2017, the ALJ issued Order No. 23 granting
Respondents' motion for summary determination of non-infringement of
the asserted claims of the '319 patent, stemming from the ALJ's
construction of the claim term ``wall console'' to mean ``a wall-
mounted control unit including a passive infrared detector.'' See Order
No. 13 (Markman Order at 80).
The ALJ held an evidentiary hearing from May 1, 2017 through May 3,
2017, on issues solely relating to the '336 patent.
On May 3, the Commission determined to review Order No. 23 that
granted Respondents' motion for summary determination of non-
infringement of the '319 patent. On review, the Commission determined
to construe ``wall console'' as a ``wall-mounted control unit,''
vacated Order No. 23, and remanded the investigation as to the '319
patent to the ALJ for further proceedings. See Comm'n Op. (May 5, 2017)
at 1-2.
The ALJ held a second evidentiary hearing from July 12, 2017,
through July 13, 2017, on issues relating to the '319 patent.
On November 9, 2017, the Commission determined not to review the
ALJ's order (Order No. 36) granting a motion to terminate the
investigation as to certain accused products and claims 19-23 of the
'336 patent. Order No. 36; Comm'n Notice of Non-Review (Nov. 9, 2017).
On October 23, 2017, the ALJ issued his final ID, finding a
violation of section 337 by Respondents in connection with claims 1-4,
7-12, 15, and 16 of the '319 patent. Specifically, the ALJ found that
the Commission has subject matter jurisdiction, in rem jurisdiction
over the accused products, and in personam jurisdiction over
Respondents. ID at 24-26. The ALJ also found that Chamberlain satisfied
the importation requirement of section 337 (19 U.S.C. 1337(a)(1)(B)).
Id. The ALJ further found that the accused products directly infringe
asserted claims 1-4, 7-12, 15, and 16 of the '319 patent, and that
Respondents induce infringement of those claims. See ID at 130-141,
144. The ALJ also found that Respondents failed to establish that the
asserted claims of the '319 patent are invalid for obviousness. ID at
151-212. With respect to the '336 patent, the ALJ found that
Respondents do not directly or indirectly infringe asserted claim 34
and that clam 34 is not invalid as obvious. ID at 72-74, 105-119. The
ALJ further found that claims 15, 19, and 34 of the '336 patent are
invalid under 35 U.S.C. 101 for reciting unpatentable subject matter
and that claim 15 is invalid for anticipation but that claims 12, 14,
and 19 have not been shown invalid for anticipation. ID at 74-103.
Finally, the ALJ found that Chamberlain established the existence of a
domestic industry that practices the asserted patents under 19 U.S.C.
1337(a)(2). See ID at 257-261, 288-294.
Also on October 23, 2017, the ALJ issued his recommended
determination on remedy and bonding. Recommended Determination on
Remedy and Bonding (``RD''). The ALJ recommends that in the event the
Commission finds a violation of section 337, the Commission should
issue a limited exclusion order prohibiting the importation of
Respondents' accused products and components thereof that infringe the
asserted claims of the '319 patent. RD at 2. The ALJ also recommends
issuance of cease and desist orders against respondents Techtronic
Industries Company Ltd., Techtronic Industries North America Inc., One
World Technologies, Inc., and OWT Industries, Inc. based on the
presence of commercially significant inventory in the United States. RD
at 5. With respect to the amount of bond that should be posted during
the period of Presidential review, the ALJ recommends that the
Commission set a bond in the amount of zero (i.e., no bond) during the
period of Presidential review. RD at 6-7.
On November 6, 2017, Respondents filed a petition for review as to
the '319 patent and a contingent petition for review as to the '336
patent. See Respondents' Petition for Review. Also on November 6, 2017,
Chamberlain filed a petition for review of the ID, primarily
challenging the ALJ's findings of no violation of section 337 as it
pertains to the '336 patent. See Complainant's Petition for Review of
Initial Determination on Violation of Section 337.
On November 14, 2017, Chamberlain and Respondents filed their
respective responses to the petitions for review. See Complainant's
Response to Respondents' Petition for Review of Initial Determination
on Violation of Section 337; Respondents' Response to Complainant's
Petition for Review.
Having examined the record of this investigation, including the
ALJ's final ID, the petition for review, and the response thereto, for
the '319 patent the Commission has determined to review (1) the ID's
finding that a combination of prior art references Doppelt, Jacobs, and
Gilbert fail to render the asserted claims obvious; and (2) the ID's
finding that a combination of prior art references Matsuoka, Doppelt,
and Eckel fail to render the asserted claims obvious. For the '336
patent the Commission has determined to review (1) the ID's finding
that claim 34 recites ineligible patent subject matter under 35 U.S.C.
Sec. 101; and (2) the ID's finding that Pruessel, either alone or in
combination with Koestler, fails to render claim 34 obvious.
In connection with its review, the Commission is interested in
responses to the following question:

1. Given the ALJ's finding that Matsuoka, Doppelt, and Eckel are
analogous references to the '319 patent, please discuss whether they
disclose all elements of the asserted claims of the '319 patent. In
particular please discuss motivations to combine them, if any.
2. Discuss whether Pruessel, either alone or in combination with
Koestler, renders claim 34 of the '336 patent obvious.

The parties are requested to brief only the discrete issues 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 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

[[Page 61794]]

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 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 patent expires and the HTSUS
numbers under which the accused products are imported. Complainants are
further requested to supply the names of known importers of the
Respondents' products at issue in this investigation. The written
submissions and proposed remedial orders must be filed no later than
close of business on January 5, 2018. Reply submissions must be filed
no later than the close of business on January 12, 2018. Opening
submissions are limited to 50 pages. Reply submissions are limited to
25 pages. Such submissions should address the ALJ's recommended
determinations on remedy and bonding. 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 eight
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-1016'') 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 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 March 2, 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 22, 2017.
Katherine M. Hiner,
Supervisory Attorney.
[FR Doc. 2017-28135 Filed 12-28-17; 8:45 am]
BILLING CODE 7020-02-P

Federal Register / Vol. 82, No. 249 / Friday, December 29, 2017 / Notices 61793

On November 7, 2016, the further found that the accused products See Complainant’s Response to
Commission determined not to review directly infringe asserted claims 1–4, 7– Respondents’ Petition for Review of
the ALJ’s order (Order No. 6) 12, 15, and 16 of the ’319 patent, and Initial Determination on Violation of
terminating the investigation as to that Respondents induce infringement Section 337; Respondents’ Response to
Ryobi. See Order No. 6, Comm’n Notice of those claims. See ID at 130–141, 144. Complainant’s Petition for Review.
of Non-Review (Nov. 7, 2016). The ALJ also found that Respondents Having examined the record of this
On March 15, 2017, the Commission failed to establish that the asserted investigation, including the ALJ’s final
determined not to review the ALJ’s claims of the ’319 patent are invalid for ID, the petition for review, and the
order (Order No. 15) granting a motion obviousness. ID at 151–212. With response thereto, for the ’319 patent the
to terminate the investigation as to respect to the ’336 patent, the ALJ found Commission has determined to review
Techtronic. Order No. 15, Comm’n that Respondents do not directly or (1) the ID’s finding that a combination
Notice of Non-Review (Mar. 15, 2017). indirectly infringe asserted claim 34 and of prior art references Doppelt, Jacobs,
On March 20, 2017, the Commission that clam 34 is not invalid as obvious. and Gilbert fail to render the asserted
determined not to review the ALJ’s ID at 72–74, 105–119. The ALJ further claims obvious; and (2) the ID’s finding
order (Order No. 28) granting a motion found that claims 15, 19, and 34 of the that a combination of prior art
to terminate the investigation as to the ’336 patent are invalid under 35 U.S.C. references Matsuoka, Doppelt, and Eckel
’611 patent. Order No. 28; Comm’n 101 for reciting unpatentable subject fail to render the asserted claims
Notice of Non-Review (Mar. 20, 2017). matter and that claim 15 is invalid for obvious. For the ’336 patent the
On March 27, 2017, the ALJ issued anticipation but that claims 12, 14, and Commission has determined to review
Order No. 23 granting Respondents’ 19 have not been shown invalid for (1) the ID’s finding that claim 34 recites
motion for summary determination of anticipation. ID at 74–103. Finally, the ineligible patent subject matter under 35
non-infringement of the asserted claims ALJ found that Chamberlain established U.S.C. § 101; and (2) the ID’s finding
of the ’319 patent, stemming from the the existence of a domestic industry that that Pruessel, either alone or in
ALJ’s construction of the claim term practices the asserted patents under 19 combination with Koestler, fails to
‘‘wall console’’ to mean ‘‘a wall- U.S.C. 1337(a)(2). See ID at 257–261, render claim 34 obvious.
mounted control unit including a 288–294.
passive infrared detector.’’ See Order In connection with its review, the
Also on October 23, 2017, the ALJ
No. 13 (Markman Order at 80). Commission is interested in responses
issued his recommended determination
The ALJ held an evidentiary hearing to the following question:
on remedy and bonding. Recommended
from May 1, 2017 through May 3, 2017, Determination on Remedy and Bonding 1. Given the ALJ’s finding that Matsuoka,
on issues solely relating to the ’336 (‘‘RD’’). The ALJ recommends that in the Doppelt, and Eckel are analogous references
patent. event the Commission finds a violation to the ’319 patent, please discuss whether
On May 3, the Commission they disclose all elements of the asserted
of section 337, the Commission should
determined to review Order No. 23 that claims of the ’319 patent. In particular please
issue a limited exclusion order discuss motivations to combine them, if any.
granted Respondents’ motion for prohibiting the importation of 2. Discuss whether Pruessel, either alone or
summary determination of non- Respondents’ accused products and in combination with Koestler, renders claim
infringement of the ’319 patent. On components thereof that infringe the 34 of the ’336 patent obvious.
review, the Commission determined to asserted claims of the ’319 patent. RD at
construe ‘‘wall console’’ as a ‘‘wall- 2. The ALJ also recommends issuance of The parties are requested to brief only
mounted control unit,’’ vacated Order cease and desist orders against the discrete issues above, with reference
No. 23, and remanded the investigation respondents Techtronic Industries to the applicable law and evidentiary
as to the ’319 patent to the ALJ for Company Ltd., Techtronic Industries record. The parties are not to brief other
further proceedings. See Comm’n Op. North America Inc., One World issues on review, which are adequately
(May 5, 2017) at 1–2. Technologies, Inc., and OWT Industries, presented in the parties’ existing filings.
The ALJ held a second evidentiary Inc. based on the presence of In connection with the final
hearing from July 12, 2017, through July commercially significant inventory in disposition of this investigation, the
13, 2017, on issues relating to the ’319 the United States. RD at 5. With respect Commission may (1) issue an order that
patent. to the amount of bond that should be could result in the exclusion of the
On November 9, 2017, the posted during the period of Presidential subject articles from entry into the
Commission determined not to review review, the ALJ recommends that the United States, and/or (2) issue one or
the ALJ’s order (Order No. 36) granting Commission set a bond in the amount more cease and desist orders that could
a motion to terminate the investigation of zero (i.e., no bond) during the period result in the respondent being required
as to certain accused products and of Presidential review. RD at 6–7. to cease and desist from engaging in
claims 19–23 of the ’336 patent. Order On November 6, 2017, Respondents unfair acts in the importation and sale
No. 36; Comm’n Notice of Non-Review filed a petition for review as to the ’319 of such articles. Accordingly, the
(Nov. 9, 2017). patent and a contingent petition for Commission is interested in receiving
On October 23, 2017, the ALJ issued review as to the ’336 patent. See written submissions that address the
his final ID, finding a violation of Respondents’ Petition for Review. Also form of remedy, if any, that should be
section 337 by Respondents in on November 6, 2017, Chamberlain filed ordered. If a party seeks exclusion of an
connection with claims 1–4, 7–12, 15, a petition for review of the ID, primarily article from entry into the United States
and 16 of the ’319 patent. Specifically, challenging the ALJ’s findings of no for purposes other than entry for
the ALJ found that the Commission has violation of section 337 as it pertains to consumption, the party should so
ethrower on DSK3G9T082PROD with NOTICES

subject matter jurisdiction, in rem the ’336 patent. See Complainant’s indicate and provide information
jurisdiction over the accused products, Petition for Review of Initial establishing that activities involving
and in personam jurisdiction over Determination on Violation of Section other types of entry either are adversely
Respondents. ID at 24–26. The ALJ also 337. affecting it or likely to do so. For
found that Chamberlain satisfied the On November 14, 2017, Chamberlain background, see Certain Devices for
importation requirement of section 337 and Respondents filed their respective Connecting Computers via Telephone
(19 U.S.C. 1337(a)(1)(B)). Id. The ALJ responses to the petitions for review. Lines, Inv. No. 337–TA–360, USITC

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Document Created: 2018-01-03 13:16:43
Document Modified: 2018-01-03 13:16:43

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		Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 202-205-3042. 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 (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 61792