83 FR 31416 - Certain Non-Volatile Memory Devices and Products Containing Same; Notice of Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest and Bonding; Extension of Target Date

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 83, Issue 129 (July 5, 2018)

Page Range		31416-31418
FR Document		2018-14380

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 April 27, 2018, finding no violation of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), as to claims 1-8 of U.S. Patent No. 6,552,360 (``the '360 patent''); claims 1-10 of U.S. Patent No. 6,788,602 (``the '602 patent''); and claims 11-16 of U.S. Patent No. 8,035,417 (``the '417 patent''). The Commission has also determined to extend the target date for completion of this investigation until September 4, 2018.

Federal Register, Volume 83 Issue 129 (Thursday, July 5, 2018)

[Federal Register Volume 83, Number 129 (Thursday, July 5, 2018)]
[Notices]
[Pages 31416-31418]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-14380]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1046]

Certain Non-Volatile Memory Devices and Products Containing Same;
Notice of Commission Determination To Review in Part a Final Initial
Determination Finding No Violation of Section 337; Schedule for Filing
Written Submissions on the Issues Under Review and on Remedy, the
Public Interest and Bonding; 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 April 27, 2018, finding no violation of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), as to claims 1-8 of
U.S. Patent No. 6,552,360 (``the '360 patent''); claims 1-10 of U.S.
Patent No. 6,788,602 (``the '602 patent''); and claims 11-16 of U.S.
Patent No. 8,035,417 (``the '417 patent''). The Commission has also
determined to extend the target date for completion of this
investigation until September 4, 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 (http://www.usitc.gov). The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at http://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 Inv. No. 337-TA-
1046 on April 12, 2017, based on a complaint filed by Macronix
International Co., Ltd. of Hsin-chu, Taiwan and Macronix America, Inc.
of Milpitas, California (collectively, ``Macronix''). 82 FR 17687-88
(Apr. 12, 2017). 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 non-volatile memory
devices and products containing the same that infringe one or more of
claims 1-8 of the '360 patent; claims 1-12 and 16 of the '602 patent;
and claims 1-7, 11-16, and 18 of the '417 patent. The notice of
investigation named the following respondents: Toshiba Corporation of
Tokyo, Japan; Toshiba America, Inc. of New York, New York; Toshiba
America Electronic Components, Inc. of Irvine, California; Toshiba
America Information Systems, Inc. of Irvine, California; and Toshiba
Information Equipment (Philippines), Inc. of Binan, Philippines
(collectively, ``Toshiba''). The Office of Unfair Import Investigations
is a party to the investigation.
On June 16, 2017, the Commission determined not to review the ALJ's
order (Order No. 11) granting an unopposed motion to amend the Notice
of investigation to add Toshiba Memory Corporation of Tokyo, Japan as a
respondent. See Order No. 11, Comm'n Notice of Non-Review (June 16,
2017).
On October 17, 2017, the Commission determined not to review the
ALJ's order (Order No. 20) granting an unopposed motion to terminate
the investigation as to claims 11, 12, and 16 of the '602 patent. See
Order No. 20, Comm'n Notice of Non-Review (Oct. 17, 2017).
On October 4, 2017, the ALJ held a Markman hearing to construe
certain disputed claim terms. On December 5, 2017, the ALJ issued Order
No. 23 (Markman Order), setting forth her construction of the disputed
claim terms.
On January 18, 2018, the Commission determined not to review the
ALJ's

[[Page 31417]]

order (Order No. 24) granting an unopposed motion to terminate the
investigation as to claims 1-7 and 18 of the '417 patent. Order No. 24;
Comm'n Notice of Non-Review (Jan. 18, 2018).
The ALJ held an evidentiary hearing from February 8, 2018, through
February 14, 2018, and thereafter received post-hearing briefs.
On April, 27 2018, the ALJ issued her final ID, finding no
violation of section 337 by Toshiba in connection with the remaining
claims, i.e., claims 1-8 of the '360 patent; claims 1-10 of the '602
patent; and claims 11-16 of the '417 patent. Specifically, the ALJ
found that the Commission has subject matter jurisdiction, in rem
jurisdiction over the accused products, and in personam jurisdiction
over Toshiba. ID at 15-17. The ALJ also found that Macronix satisfied
the importation requirement of section 337 (19 U.S.C. 1337(a)(1)(B)).
Id. The ALJ, however, found that the accused products do not infringe
the asserted claims of the '360 patent and '417 patent. See ID at 19-
65, 118-130. The ALJ also found that Toshiba failed to establish that
the asserted claims of the '417 patent are invalid for obviousness. ID
at 132-141. Toshiba did not challenge the validity of the '360 patent.
ID at 70. With respect to the '602 patent, the ALJ found that certain
accused products infringe asserted claims 1-10, but that claims 1-5 and
7-10 are invalid for obviousness. ID at 71-88, 91-117. Finally, the ALJ
found that Macronix failed to establish the existence of a domestic
industry that practices the asserted patents under 19 U.S.C. 1337(a)(2)
and also failed to show a domestic industry in the process of being
established. See ID at 257-261, 288-294.
On May 10, 2018, the ALJ issued her 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 Toshiba's accused
products that infringe the asserted claims of the asserted patents. RD
at 1-5. The ALJ also recommends issuance of cease and desist orders
against the domestic Toshiba respondents 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 100 percent of entered value for Toshiba flash
memory devices and solid state drives, and a bond in the amount of six
percent of entered value for Toshiba PCs imported during the period of
Presidential review. RD at 6-9.
On May 14, 2018, Macronix filed a petition for review challenging
the ID's finding of no violation of section 337. The IA also filed a
petition for review that day, challenging the ID's finding that
Macronix failed to establish a domestic industry in the process of
being established and certain findings as to the '602 patent. Also on
May 14, 2018, Toshiba filed a contingent petition for review of the ID
``in the event that the Commission decides to review the ID.'' On May
22, 2018, Macronix and Toshiba filed their respective responses to the
petitions for review. On May 23, 2018, the IA filed a response to the
private parties' petitions for review. The Chairman granted the IA's
motion for leave to file the response one day late.
Having examined the record of this investigation, including the
ALJ's 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 the following:
(1) The finding that Macronix failed to satisfy the domestic industry
requirement; and (2) the findings of infringement and invalidity as to
the '602 patent.
In connection with its review, the Commission is interested in
responses to the following questions:
1. Would one of ordinary skill in the art understand that the claim
term ``coupled'' in the asserted claims of the '602 patent construed to
mean ``conductively connected'' requires select transistors? If yes,
how does it affect the ID's infringement, domestic industry technical
prong, and invalidity findings?
2. Would one of ordinary skill in the art understand that the claim
term ``memory array'' in the asserted claims of the '602 patent
construed to mean ``multiple memory cells coupled to a grid of word
lines and bit lines'' necessarily includes select transistors? If yes,
how does it affect the ID's infringement, domestic industry technical
prong, and invalidity findings?
3. The ID states that under the adopted construction of ``memory
array'' (set forth above), ``a memory array consistent with the '602
patent . . . could span an entire plane or only a subset of memory
cells in a plane.'' ID at 80. Is this additional language consistent
with the ID's construction? If that additional language is omitted, how
will the ID's infringement, domestic industry technical prong, and
invalidity findings be affected?
4. Please discuss the showing necessary to meet the statutory
requirement of ``articles protected by the patent'' for a domestic
industry in the process of being established under section 337(a)(2).
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 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. In connection with this, the
Commission is interested in responses to the following questions:
1. If an exclusion order issues against Toshiba's accused products,
can Dell's other SSD suppliers or other SSD suppliers in general fill
any void that may be created?
2. What domestic Dell products will be impacted by an exclusion
order?
3. Toshiba and Dell request a delay in implementing any exclusion
order. If an exclusion order issues, what specific

[[Page 31418]]

product(s) should a delay apply to? What should be the duration of the
delay?
4. Macronix and Toshiba present vastly different views about the
ability of suppliers to satisfy domestic demand if an exclusion order
issues. Please discuss the ability of suppliers other than Toshiba to
satisfy domestic demand for each and every product that may be affected
by an exclusion order.
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.
The Commission has also determined to extend the target date for
completion of this investigation until September 4, 2018.
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 and the IA are requested to submit
proposed remedial orders for the Commission's consideration.
Complainants are also requested to state the date that the patents
expire 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 July 12, 2018. Reply
submissions must be filed no later than the close of business on July
19, 2018. Opening submissions are limited to 75 pages. Reply
submissions are limited to 50 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-1046'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.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 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: June 28, 2018.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2018-14380 Filed 7-3-18; 8:45 am]
BILLING CODE 7020-02-P

31416 Federal Register / Vol. 83, No. 129 / Thursday, July 5, 2018 / Notices

• Clay Cut, LLC (ITP TE69952C–0) organizations or businesses, will be information concerning the Commission
anticipates taking 8.6 acres of species’ made available for public disclosure in may also be obtained by accessing its
habitat incidental to land preparation their entirety. internet server (http://www.usitc.gov).
and construction in Section 3, Authority: We provide this notice under The public record for this investigation
Township 27 South, Range 28 East, in section 10(c) of the ESA (16 U.S.C. 1531 et may be viewed on the Commission’s
Polk County, Florida. seq.) and its implementing regulations (50 electronic docket (EDIS) at http://
• Land Acquisition One, LLC (ITP CFR 17.22 and 17.32) and NEPA (42 U.S.C. edis.usitc.gov. Hearing-impaired
TE69953C–0) anticipates taking 11.2 4321 et seq.) and its implementing persons are advised that information on
acres of species’ habitat incidental to regulations (40 CFR 1506.6 and 43 CFR this matter can be obtained by
land preparation and construction in 46.305). contacting the Commission’s TDD
Sections 18 and 19, Township 25 South, Roxanna Hinzman, terminal on 202–205–1810.
Range 27 East, in Osceola County, Field Supervisor, South Florida Ecological SUPPLEMENTARY INFORMATION: The
Florida. Services Office. Commission instituted Inv. No. 337–
None of the applicants currently has [FR Doc. 2018–14395 Filed 7–3–18; 8:45 am] TA–1046 on April 12, 2017, based on a
a timeframe for development or specific BILLING CODE 4333–15–P complaint filed by Macronix
site plans; however, each applicant International Co., Ltd. of Hsin-chu,
intends to develop its parcel by Taiwan and Macronix America, Inc. of
constructing one or more structures and Milpitas, California (collectively,
INTERNATIONAL TRADE
parking areas and installing associated ‘‘Macronix’’). 82 FR 17687–88 (Apr. 12,
COMMISSION
utilities. 2017). The complaint alleges violations
The applicants propose to mitigate for [Investigation No. 337–TA–1046] of section 337 of the Tariff Act of 1930,
impacts to the species by purchasing as amended (19 U.S.C. 1337), in the
credits from a Service-approved Certain Non-Volatile Memory Devices
and Products Containing Same; Notice importation into the United States, the
conservation bank as follows: sale for importation, and the sale within
• Tohopekaliga Water Authority of Commission Determination To
Review in Part a Final Initial the United States after importation of
proposes to purchase the equivalent of
Determination Finding No Violation of certain non-volatile memory devices
4.4 acres of credits.
• Mystic Dunes, LLC proposes to Section 337; Schedule for Filing and products containing the same that
purchase the equivalent of 13.4 acres of Written Submissions on the Issues infringe one or more of claims 1–8 of the
credits. Under Review and on Remedy, the ’360 patent; claims 1–12 and 16 of the
• Clay Cut, LLC proposes to purchase Public Interest and Bonding; Extension ’602 patent; and claims 1–7, 11–16, and
the equivalent of 17.2 acres of credits. of Target Date 18 of the ’417 patent. The notice of
• Land Acquisition One, LLC investigation named the following
proposes to purchase the equivalent of AGENCY: U.S. International Trade respondents: Toshiba Corporation of
22.4 acres of credits. Commission. Tokyo, Japan; Toshiba America, Inc. of
ACTION: Notice. New York, New York; Toshiba America
Our Preliminary Determination Electronic Components, Inc. of Irvine,
SUMMARY: Notice is hereby given that California; Toshiba America Information
The Service has made a preliminary
the U.S. International Trade Systems, Inc. of Irvine, California; and
determination that each of the
Commission has determined to review Toshiba Information Equipment
applicants’ projects, including the
in part the final initial determination (Philippines), Inc. of Binan, Philippines
mitigation measures, will individually
(‘‘ID’’) issued by the presiding (collectively, ‘‘Toshiba’’). The Office of
and cumulatively have a minor or
administrative law judge (‘‘ALJ’’) on Unfair Import Investigations is a party to
negligible effect on the species.
April 27, 2018, finding no violation of the investigation.
Therefore, we have determined that the
section 337 of the Tariff Act of 1930, as On June 16, 2017, the Commission
ITPs for each of these projects would be
amended (19 U.S.C. 1337), as to claims determined not to review the ALJ’s
‘‘low effect’’ and qualify for categorical
1–8 of U.S. Patent No. 6,552,360 (‘‘the order (Order No. 11) granting an
exclusions under the National
’360 patent’’); claims 1–10 of U.S. Patent unopposed motion to amend the Notice
Environmental Policy Act (NEPA; 42
No. 6,788,602 (‘‘the ’602 patent’’); and of investigation to add Toshiba Memory
U.S.C. 4321 et seq.).
claims 11–16 of U.S. Patent No. Corporation of Tokyo, Japan as a
Public Availability of Comments 8,035,417 (‘‘the ’417 patent’’). The respondent. See Order No. 11, Comm’n
Written comments we receive become Commission has also determined to Notice of Non-Review (June 16, 2017).
part of the administrative record extend the target date for completion of On October 17, 2017, the Commission
associated with this action. Before this investigation until September 4, determined not to review the ALJ’s
including your address, phone number, 2018. order (Order No. 20) granting an
email address, or other personal FOR FURTHER INFORMATION CONTACT: unopposed motion to terminate the
identifying information in your Panyin A. Hughes, Office of the General investigation as to claims 11, 12, and 16
comment, you should be aware that Counsel, U.S. International Trade of the ’602 patent. See Order No. 20,
your entire comment—including your Commission, 500 E Street SW, Comm’n Notice of Non-Review (Oct. 17,
personal identifying information—may Washington, DC 20436, telephone 202– 2017).
be made publicly available at any time. 205–3042. Copies of non-confidential On October 4, 2017, the ALJ held a
While you can request in your comment documents filed in connection with this Markman hearing to construe certain
amozie on DSK3GDR082PROD with NOTICES1

that we withhold your personal investigation are or will be available for disputed claim terms. On December 5,
identifying information from public inspection during official business 2017, the ALJ issued Order No. 23
review, we cannot guarantee that we hours (8:45 a.m. to 5:15 p.m.) in the (Markman Order), setting forth her
will be able to do so. All submissions Office of the Secretary, U.S. construction of the disputed claim
from organizations or businesses, and International Trade Commission, 500 E terms.
from individuals identifying themselves Street SW, Washington, DC 20436, On January 18, 2018, the Commission
as representatives or officials of telephone 202–205–2000. General determined not to review the ALJ’s

VerDate Sep<11>2014 16:43 Jul 03, 2018 Jkt 244001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\05JYN1.SGM 05JYN1

Federal Register / Vol. 83, No. 129 / Thursday, July 5, 2018 / Notices 31417

order (Order No. 24) granting an of six percent of entered value for 4. Please discuss the showing
unopposed motion to terminate the Toshiba PCs imported during the period necessary to meet the statutory
investigation as to claims 1–7 and 18 of of Presidential review. RD at 6–9. requirement of ‘‘articles protected by the
the ’417 patent. Order No. 24; Comm’n On May 14, 2018, Macronix filed a patent’’ for a domestic industry in the
Notice of Non-Review (Jan. 18, 2018). petition for review challenging the ID’s process of being established under
The ALJ held an evidentiary hearing finding of no violation of section 337. section 337(a)(2).
from February 8, 2018, through The IA also filed a petition for review The parties are requested to brief only
February 14, 2018, and thereafter that day, challenging the ID’s finding the discrete issues above, with reference
received post-hearing briefs. that Macronix failed to establish a to the applicable law and evidentiary
On April, 27 2018, the ALJ issued her domestic industry in the process of record. The parties are not to brief other
final ID, finding no violation of section being established and certain findings as issues on review, which are adequately
337 by Toshiba in connection with the to the ’602 patent. Also on May 14, presented in the parties’ existing filings.
remaining claims, i.e., claims 1–8 of the 2018, Toshiba filed a contingent petition In connection with the final
’360 patent; claims 1–10 of the ’602 for review of the ID ‘‘in the event that disposition of this investigation, the
patent; and claims 11–16 of the ’417 the Commission decides to review the Commission may (1) issue an order that
patent. Specifically, the ALJ found that ID.’’ On May 22, 2018, Macronix and could result in the exclusion of the
the Commission has subject matter Toshiba filed their respective responses subject articles from entry into the
jurisdiction, in rem jurisdiction over the to the petitions for review. On May 23, United States, and/or (2) issue one or
accused products, and in personam 2018, the IA filed a response to the more cease and desist orders that could
jurisdiction over Toshiba. ID at 15–17. private parties’ petitions for review. The result in the respondent being required
The ALJ also found that Macronix Chairman granted the IA’s motion for to cease and desist from engaging in
satisfied the importation requirement of leave to file the response one day late. unfair acts in the importation and sale
section 337 (19 U.S.C. 1337(a)(1)(B)). Id. Having examined the record of this of such articles. Accordingly, the
The ALJ, however, found that the investigation, including the ALJ’s final Commission is interested in receiving
accused products do not infringe the ID, the petitions for review, and the written submissions that address the
asserted claims of the ’360 patent and responses thereto, the Commission has form of remedy, if any, that should be
’417 patent. See ID at 19–65, 118–130. determined to review the final ID in ordered. If a party seeks exclusion of an
The ALJ also found that Toshiba failed part. Specifically, the Commission has article from entry into the United States
to establish that the asserted claims of determined to review the following: (1) for purposes other than entry for
the ’417 patent are invalid for The finding that Macronix failed to consumption, the party should so
obviousness. ID at 132–141. Toshiba did satisfy the domestic industry indicate and provide information
not challenge the validity of the ’360 requirement; and (2) the findings of establishing that activities involving
patent. ID at 70. With respect to the ’602 infringement and invalidity as to the other types of entry either are adversely
patent, the ALJ found that certain ’602 patent. affecting it or likely to do so. For
accused products infringe asserted In connection with its review, the background, see Certain Devices for
claims 1–10, but that claims 1–5 and Commission is interested in responses Connecting Computers via Telephone
7–10 are invalid for obviousness. ID at to the following questions: Lines, Inv. No. 337–TA–360, USITC
71–88, 91–117. Finally, the ALJ found 1. Would one of ordinary skill in the Pub. No. 2843 (December 1994)
that Macronix failed to establish the art understand that the claim term (Commission Opinion).
existence of a domestic industry that ‘‘coupled’’ in the asserted claims of the If the Commission contemplates some
practices the asserted patents under 19 ’602 patent construed to mean form of remedy, it must consider the
U.S.C. 1337(a)(2) and also failed to show ‘‘conductively connected’’ requires effects of that remedy upon the public
a domestic industry in the process of select transistors? If yes, how does it interest. The factors the Commission
being established. See ID at 257–261, affect the ID’s infringement, domestic will consider include the effect that an
288–294. industry technical prong, and invalidity exclusion order and/or cease and desist
On May 10, 2018, the ALJ issued her findings? orders would have on (1) the public
recommended determination on remedy 2. Would one of ordinary skill in the health and welfare, (2) competitive
and bonding. Recommended art understand that the claim term conditions in the U.S. economy, (3) U.S.
Determination on Remedy and Bonding ‘‘memory array’’ in the asserted claims production of articles that are like or
(‘‘RD’’). The ALJ recommends that in the of the ’602 patent construed to mean directly competitive with those that are
event the Commission finds a violation ‘‘multiple memory cells coupled to a subject to investigation, and (4) U.S.
of section 337, the Commission should grid of word lines and bit lines’’ consumers. The Commission is
issue a limited exclusion order necessarily includes select transistors? If therefore interested in receiving written
prohibiting the importation of Toshiba’s yes, how does it affect the ID’s submissions that address the
accused products that infringe the infringement, domestic industry aforementioned public interest factors
asserted claims of the asserted patents. technical prong, and invalidity in the context of this investigation. In
RD at 1–5. The ALJ also recommends findings? connection with this, the Commission is
issuance of cease and desist orders 3. The ID states that under the interested in responses to the following
against the domestic Toshiba adopted construction of ‘‘memory questions:
respondents based on the presence of array’’ (set forth above), ‘‘a memory 1. If an exclusion order issues against
commercially significant inventory in array consistent with the ’602 patent Toshiba’s accused products, can Dell’s
the United States. RD at 5. With respect . . . could span an entire plane or only other SSD suppliers or other SSD
amozie on DSK3GDR082PROD with NOTICES1

to the amount of bond that should be a subset of memory cells in a plane.’’ ID suppliers in general fill any void that
posted during the period of Presidential at 80. Is this additional language may be created?
review, the ALJ recommends that the consistent with the ID’s construction? If 2. What domestic Dell products will
Commission set a bond in the amount that additional language is omitted, how be impacted by an exclusion order?
of 100 percent of entered value for will the ID’s infringement, domestic 3. Toshiba and Dell request a delay in
Toshiba flash memory devices and solid industry technical prong, and invalidity implementing any exclusion order. If an
state drives, and a bond in the amount findings be affected? exclusion order issues, what specific

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Document Created: 2018-07-03 23:40:37
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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 (http:// www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://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		83 FR 31416