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)

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, 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