82 FR 9221 - Certain Automated Teller Machines, ATM Modules, Components Thereof, and Products Containing the Same; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; and Granting a Motion To Amend the Complaint and Notice of Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 22 (February 3, 2017)

Notice is hereby given that the U.S. International Trade Commission has determined to review in part the final initial determination (``final ID'') issued by the presiding administrative law judge (``ALJ'') on November 30, 2016, finding a violation of section 337 of the Tariff Act of 1930, in the above-captioned investigation. The Commission has also determined to grant the motion filed on December 23, 2016, by the complainants to amend the complaint and notice of investigation. The Commission requests certain briefing from the parties on the issues under review, as indicated in this notice. The Commission also requests briefing from the parties and interested persons on the issues of remedy, the public interest, and bonding.

[Federal Register Volume 82, Number 22 (Friday, February 3, 2017)]
[Notices]
[Pages 9221-9223]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-02276]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-972]


Certain Automated Teller Machines, ATM Modules, Components 
Thereof, and Products Containing the Same; Commission Determination To 
Review in Part a Final Initial Determination Finding a Violation of 
Section 337; Schedule for Filing Written Submissions on the Issues 
Under Review and on Remedy, the Public Interest, and Bonding; and 
Granting a Motion To Amend the Complaint and Notice of 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 final initial 
determination (``final ID'') issued by the presiding administrative law 
judge (``ALJ'') on November 30, 2016, finding a violation of section 
337 of the Tariff Act of 1930, in the above-captioned investigation. 
The Commission has also determined to grant the motion filed on 
December 23, 2016, by the complainants to amend the complaint and 
notice of investigation. The Commission requests certain briefing from 
the parties on the issues under review, as indicated in this notice. 
The Commission also requests briefing from the parties and interested 
persons on the issues of remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-708-2532. 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 November 20, 2015, based on a complaint filed by Diebold 
Incorporated and Diebold Self-Service Systems (collectively, 
``Diebold''). 80 FR 72735-36 (Nov. 20, 2015). The complaint alleged 
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 automated teller machines, ATM modules, components thereof, and 
products containing the same by reason of infringement of certain 
claims of six United States Patents: 7,121,461 (``the '461 patent''); 
7,249,761 (``the '761 patent''); 7,314,163 (``the '163 patent''); 
6,082,616 (``the '616 patent''); 7,229,010 (``the '010 patent''); and 
7,832,631 (``the '631 patent''). Id. The notice of investigation named 
as respondents Nautilus Hyosung Inc. of Seoul, Republic of Korea; 
Nautilus Hyosung America Inc. of Irving, Texas; and HS Global, Inc. of 
Brea, California (collectively, ``Nautilus''). Id. at 72736. The Office 
of Unfair Import Investigations was not named as a party. Id.
    The '461 patent, '761 patent, and '163 patent were previously 
terminated from the investigation. See Order No. 12 (Apr. 28, 2016), 
not reviewed, Notice (May 11, 2016); Order No. 21 (June 28, 2016), not 
reviewed, Notice (July 28, 2016). The presiding administrative law 
judge (``ALJ'') conducted an evidentiary hearing from August 29, 2016 
through September 1, 2016. On November 30, 2016, the ALJ issued the 
final Initial Determination (``final ID'' or ``ID''). The final ID 
found a violation of section 337 with respect to the '616 and '631 
patents, and no violation with respect to the '010 patent. ID at 207-
09. The ALJ recommended that a limited exclusion order and cease and 
desist orders issue against Nautilus.
    Nautilus and Diebold each filed a petition for review of the ID. No 
party petitioned for review concerning the '010 patent, the Commission 
has determined not to review the ID's finding of no violation as to the 
'010 patent, and the investigation is hereby terminated as to that 
patent. What remain are asserted claims 1, 5-8, 10, 16, 26 and 27 of 
the '616 patent; and asserted claims 1-7 and 18-20 of the '631 patent. 
Diebold's petition deals principally with the '616 patent, and 
Nautilus's petition deals principally with the '631 patent.
    Separately, on December 23, 2016, Diebold moved the Commission for 
leave to amend the complaint and notice of investigation to change the 
name of Diebold, Incorporated (one of the two complainants) to Diebold 
Nexdorf, Incorporated. Nautilus did not oppose the motion. The 
Commission hereby grants the motion.
    On December 30, 2016, the parties submitted statements on the 
public interest. Diebold contends that the investigation does not raise 
any public interest concerns. Nautilus asserts that a Commission 
exclusion order should include a certification provision and that any 
Commission remedial orders be tailored to allow repair of existing 
Nautilus ATMs in the United States. In addition, the Commission 
received submissions from United States Representative James B. 
Renacci, United States Senator Sherrod Brown, and certain Nautilus 
customers.
    Having reviewed the record of investigation, including the ALJ's 
orders and initial determinations, including the final ID, as well as 
the parties' petitions for review and responses thereto, the Commission 
has determined to review the ID in part.
    For the '616 patent, the Commission has determined to review the 
constructions of the terms ``service opening'' and ``a second position

[[Page 9222]]

wherein . . . the service opening is not accessible from outside the 
housing.'' The Commission finds that the term ``service opening'' is to 
receive its plain and ordinary meaning. The Commission finds that the 
term means ``an opening through which a component may be serviced.'' 
The Commission finds that the term ``second position wherein . . . the 
service opening is not accessible from outside the housing'' is to be 
afforded its plain and ordinary meaning. The claim language ``the 
service opening is not accessible from outside the housing'' in the 
second position, read in view of the intrinsic record of the '616 
patent, expressly states that ``the service opening is not 
accessible''; it does not state that the ``service point'' is not 
accessible from outside the housing in the second position. The 
Commission's reasoning in support of its claim construction 
determinations is set forth more fully in the Commission Claim 
Construction Opinion.
    In view of the Commission's determination to review and modify the 
construction of these two claim limitations, the Commission has also 
determined to review:
    (1) Whether the accused products infringe each of the asserted 
claims of the '616 patent literally or under the doctrine of 
equivalents;
    (2) whether the asserted claims of the '616 patent are obvious in 
view of Diebold's 1064i ATM; and
    (3) whether Diebold has satisfied the technical prong for the 
domestic industry requirement for the '616 patent.
    The Commission has determined to review and to take no position on 
whether, for the '631 patent, Diebold satisfied the economic prong of 
the domestic industry requirement under 19 U.S.C. 1337(a)(3)(B) based 
on its field service labor expenditures.
    The Commission has determined not to review the remainder of the 
ID.
    The parties are asked to brief the issues for the '616 patent of 
infringement, obviousness in view of Diebold's 1064i ATM, and the 
technical prong, in view of the Commission's constructions, and with 
reference to the applicable law and the existing evidentiary record. 
For each argument presented, the parties' submissions should 
demonstrate that the argument has been preserved in accordance with the 
ALJ's Ground Rules as well as Commission Rule 210.43(b), 19 CFR 
210.43(b).
    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, Comm'n Op. 
(December 1994).
    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. 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 under review as set forth 
above. 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. The complainants are requested to submit 
proposed remedial orders for the Commission's consideration. The 
complainants are also requested to state the date that the '631 and 
'616 patents expire, the HTSUS numbers under which the accused products 
are imported, and the names of known importers of the products at issue 
in this investigation. The written submissions and proposed remedial 
orders must be filed no later than close of business on February 10, 
2017, and should not exceed 40 pages. Reply submissions must be filed 
no later than the close of business on February 17, 2017, and such 
replies should not exceed 30 pages. 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-972'') 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, solely for cybersecurity 
purposes. All nonconfidential written submissions will be available for 
public inspection at the Office of the Secretary and on EDIS.

[[Page 9223]]

    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: January 30, 2017.
Lisa R. Barton,
Secretary to the Commission.

[FR Doc. 2017-02276 Filed 2-2-17; 8:45 am]
BILLING CODE 7020-02-P