83 FR 58592 - Certain Digital Cameras, Software, and Components Thereof; Commission Determination To Review-In-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions; Extension of Target Date for Completion of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 83, Issue 224 (November 20, 2018)

Page Range		58592-58594
FR Document		2018-25291

Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's (``ALJ'') final initial determination (``Final ID'') issued on August 17, 2018, finding a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337'') in the above-captioned investigation. The Commission has also determined to extend the target date for completion of the above-captioned investigation to February 1, 2019.

Federal Register, Volume 83 Issue 224 (Tuesday, November 20, 2018)

[Federal Register Volume 83, Number 224 (Tuesday, November 20, 2018)]
[Notices]
[Pages 58592-58594]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-25291]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1059]

Certain Digital Cameras, Software, and Components Thereof;
Commission Determination To Review-In-Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions; Extension of Target Date for Completion of the
Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the presiding
administrative law judge's (``ALJ'') final initial determination
(``Final ID'') issued on August 17, 2018, finding a violation of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337'') in the above-captioned investigation. The Commission
has also determined to extend the target date for completion of the
above-captioned investigation to February 1, 2019.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2301. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW, Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its internet server (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 June 2, 2017, based on a complaint filed by Carl Zeiss AG of
Oberkochen, Germany, and ASML Netherlands B.V. of Veldhoven,
Netherlands. 82 FR 25627-28. The complaint alleges violations of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337), in the importation into the United States, the sale
for importation, and the sale within the United States after
importation of certain digital cameras, software, and components
thereof that infringe U.S. Patent Nos. 6,301,440 (``the '440 patent'');
6,463,163 (``the '163 patent''); 6,714,241 (``the '241 patent'');
6,731,335 (``the '335 patent''); 6,834,128 (``the '128 patent'');
7,297,916 (``the '916 patent''); and 7,933,454 (``the '454 patent'').
Id. The complaint further alleges that a domestic industry exists in
the United States. The Commission's Notice of Investigation named as
respondents Nikon Corporation of Tokyo, Japan; Sendai Nikon Corporation
of Natori, Japan; Nikon Inc. of Melville, New York; Nikon (Thailand)
Co., Ltd. of Ayutthaya, Thailand; Nikon Imaging (China) Co., Ltd. of
Wuxi, China; and PT Nikon Indonesia of Jakarta, Indonesia. Id. at
25627. The Office of Unfair Import Investigations is not participating
in this investigation. Id. The Commission later terminated respondent
PT Nikon from the investigation. Order No. 36 (Dec. 27, 2017)
(unreviewed Notice (Jan. 19, 2018)). The Commission also subsequently
terminated from the investigation all claims of the '163 and '335
patents and certain claims of the '440, '241, '128, '916, and '454
patents. Order No. 23 (Oct. 3, 2017) (unreviewed Notice (Oct. 17,
2017)); Order No. 32 (Nov. 22, 2017) (unreviewed Notice (Dec. 19,
2017)); Order No. 45 (Feb. 5, 2018) (unreviewed Notice (Mar. 6, 2018));
Order No. 65 (Mar. 27, 2018) (unreviewed Notice (Apr. 25, 2018)); Order
No. 67 (Apr. 13, 2018) (unreviewed Notice (May 4, 2018)).
On August 17, 2018, the ALJ issued her Final ID, finding a
violation of section 337 with respect to asserted claims 1 and 8 of the
'916, asserted claims 6, 35, and 39 of the '440 patent, and asserted
claim 22 of the '454 patent. The final ID finds no violation as to
asserted claims 1, 12, and 16 of the '128 patent, asserted claim 10 of
the '241 patent, and asserted claims 37, 46, and 50 of the '440 patent.
In particular, the Final ID finds that asserted claims 1 and 8 of
the '916 patent read on the accused products under the DOE. The Final
ID also finds that asserted claims 1 and 8 are not invalid for
obviousness under 35 U.S.C. 103. The Final ID further finds that Zeiss
has satisfied the technical prong of the domestic industry (``DI'')
requirement with respect to the '916 patent.
The Final ID finds that asserted claims 6, 35, 37, 39, 46, and 50
of the '440 patent read on the accused products. The Final ID also
finds that asserted claim 37 is invalid as anticipated under 35 U.S.C.
102, but that asserted claims 6, 35, 39, 46, and

[[Page 58593]]

50 are not invalid as anticipated under 35 U.S.C. 102 or for
obviousness under 35 U.S.C. 103. The Final ID further finds that Zeiss
has satisfied the technical prong of the DI requirement with respect to
the '440 patent.
The Final ID finds that asserted claim 22 of the '454 patent reads
on the accused products. The Final ID also finds that asserted claim 22
is not invalid as anticipated under 35 U.S.C. 102 or for obviousness
under 35 U.S.C. 103. The Final ID further finds that Zeiss has
satisfied the technical prong of the DI requirement with respect to the
'454 patent.
The Final ID finds that asserted claims 1, 12, and 16 of the '128
patent do not read on the accused products. The Final ID also finds
that asserted claims 1, 12, and 16 are invalid for obviousness under 35
U.S.C. 103 or as indefinite under 35 U.S.C. 112. The Final ID further
finds that Zeiss has not satisfied the technical prong of the DI
requirement with respect to the '128 patent.
The Final ID finds that asserted claim 10 of the '241 patent reads
on one of the accused products--the D610 camera. The Final ID also
finds that asserted claim 10 is not invalid for obviousness under 35
U.S.C. 103. The Final ID finds that Zeiss has not satisfied the
technical prong of the DI requirement with respect to the '241 patent.
In addition, the Final ID finds that Zeiss proved direct
infringement by Nikon of only the asserted apparatus and system claims
and failed to prove third-party direct infringement or indirect
infringement with respect to asserted method claims 46 and 50 of the
'440 patent and asserted method claims 12 and 16 of the '128 patent.
The Final ID finds that Zeiss has shown, with respect to the '916,
440, and '454 patent, that it has a domestic industry in the process of
being established pursuant to section 337(a)(2) and has satisfied the
economic prong of the DI requirement pursuant to section 337(a)(3)(B)
(significant employment of labor or capital) and/or (C) (substantial
investment in exploitation of the asserted patents).
The Final ID also contains the ALJ's recommended determination on
remedy and bonding. The ALJ recommended that the appropriate remedy is
a limited exclusion order, including a certification provision, and
cease and desist orders against each of the Nikon respondents. The ALJ
recommended the imposition of a bond of 0% (no bond) during the period
of Presidential review.
On September 4, 2018, the parties each filed petitions for review
of numerous aspects of the Final ID. On September 12, 2018, the parties
filed responses to the respective petitions for review.
On September 19, 2018, Zeiss filed a post-RD statement on the
public interest pursuant to Commission Rule 210.50(a)(4). Nikon did not
submit a public interest statement. No public interest submissions were
filed by the public in response to the post-RD Commission Notice issued
on August 20, 2018. See Notice of Request for Statements on the Public
Interest (Aug. 20, 2018); 83 FR 42938-39 (Aug. 24, 2018).
Having examined the record of this investigation, including the
Final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the Final ID in part.
With respect to the '916 patent, the Commission has determined to
review the Final ID's construction of the limitation ``wherein a
thickness of the second set of layers is larger than a thickness of the
first set of layers to reduce size of the sensor die.'' Accordingly,
the Commission has determined to review the Final ID's findings
regarding whether asserted claims 1 and 8 read on the accused products,
as well as the Final ID's findings concerning validity and the
technical prong of the DI requirement with respect to those claims.
With respect to the '440 patent, the Commission has determined to
review the Final ID's finding that the limitation ``photographic expert
unit which adjusts image capture parameters'' recited in unasserted
independent claim 1 is not a means-plus-function claim under 35 U.S.C.
112 ] 6. Accordingly, the Commission has determined to review the Final
ID's findings regarding whether asserted claims 6, 35, 37, and 39 read
on the accused products, as well as the Final ID's findings concerning
validity and the technical prong of the DI requirement with respect to
those claims.
With respect to the '454 patent, the Commission has determined to
review the Final ID's findings regarding whether asserted claim 22
reads on the accused products, as well as the Final ID's findings
concerning validity and the technical prong of the DI requirement with
respect to that claim.
With respect to the '128 patent, the Commission has determined to
review the Final ID's construction of the limitations ``coarse motion
vector'' and ``refined mosaic'' recited in asserted claim 1. The
Commission has also determined to review the Final ID's finding that
claim 1, in particular the limitation ``means for generating a refined
mosaic,'' is invalid as indefinite under 35 U.S.C. 112. The Commission
has further determined to review the Final ID's findings regarding
whether asserted claim 1 reads on the accused products as well as the
Final ID's findings concerning obviousness and the technical prong of
the DI requirement with respect to that claim.
The Commission has determined to review the Final ID's finding that
Zeiss has satisfied the economic prong of the DI requirement under
section 337(a)(3)(B) and (C) with respect to the '440 patent.
The Commission has determined not to review the remaining issues
decided in the Final ID. In particular, the Commission has determined
not to review the ID's findings that Zeiss failed to show use in the
United States of the steps of the asserted claimed methods--i.e.,
claims 46 and 50 of the '440 patent and claims 12 and 16 of the '128
patent. See Final ID at 282, 285. Zeiss has abandoned these method
claims by failing to seek Commission review of these findings. Under
Commission Rule 210.43(b) ``[a]ny issue not raised in a petition for
review will be deemed to have been abandoned by the petitioning party
and may be disregarded by the Commission . . . .'' 19 CFR 210.43(b).
The Commission's determination not to review the ALJ's findings that
Zeiss failed to show use of the steps of the asserted claimed methods
in the United States results in a determination of no violation based
on those claims. The Commission also reviews and strikes the sentence
that traverses pages 276-277 in the Final ID, which is the last
sentence just prior to heading XII.A.
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in responses to the following questions:
1. If the Commission were to construe the limitation ``photographic
expert unit which adjusts image capture parameters'' recited in claim 1
of the '440 patent as a means-plus-function claim under 35 U.S.C. 112 ]
6, please explain whether the patent specification discloses sufficient
structure to preclude a finding of indefiniteness under 35 U.S.C. 112.
2. Please address whether, under Zeiss's proposed construction, the
limitation ``refined mosaic'' recited in claim 1 of the '128 patent is
invalid under 35 U.S.C. 112 for indefiniteness.
The parties have been invited to brief only these discrete issues,
as enumerated above, with reference to the applicable law and
evidentiary record. The parties are not to brief other issues

[[Page 58594]]

on review, which are adequately presented in the parties' existing
filings.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent(s) being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or likely to do so.
For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December
1994) (Commission Opinion).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove the Commission's action. See Presidential Memorandum of
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission and prescribed by the
Secretary of the Treasury. The Commission is therefore interested in
receiving submissions concerning the amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: The parties to the investigation 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. Complainant is also requested to submit proposed
remedial orders for the Commission's consideration. Complainant is
further requested to state the dates that the patents expire, the HTSUS
numbers under which the accused products are imported, and any known
importers of the accused products. The written submissions and proposed
remedial orders must be filed no later than close of business on
November 26, 2018. Initial submissions are limited to 30 pages, not
including any attachments or exhibits related to discussion of the
public interest. Reply submissions must be filed no later than the
close of business on December 3, 2018. Reply submissions are limited to
15 pages, not including any attachments or exhibits related to
discussion of remedy, the public interest, and bonding. No further
submissions on these issues will be permitted unless otherwise ordered
by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to section 210.4(f) of the Commission's Rules of Practice and
Procedure (19 CFR 210.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1059'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel \1\, solely for
cybersecurity purposes. All nonconfidential written submissions will be
available for public inspection at the Office of the Secretary and on
EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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The Commission has also determined to extend the target date for
completion of the above-captioned investigation to February 1, 2019.
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: November 15, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-25291 Filed 11-19-18; 8:45 am]
BILLING CODE 7020-02-P

58592 Federal Register / Vol. 83, No. 224 / Tuesday, November 20, 2018 / Notices

cannot guarantee that we will be able to INTERNATIONAL TRADE United States after importation of
do so. COMMISSION certain digital cameras, software, and
Authority: 5 U.S.C. Appendix 2
components thereof that infringe U.S.
[Investigation No. 337–TA–1059]
Patent Nos. 6,301,440 (‘‘the ’440
Margaret Triebsch, Certain Digital Cameras, Software, and patent’’); 6,463,163 (‘‘the ’163 patent’’);
Program Analyst. Components Thereof; Commission 6,714,241 (‘‘the ’241 patent’’); 6,731,335
[FR Doc. 2018–25331 Filed 11–19–18; 8:45 am] Determination To Review-In-Part a (‘‘the ’335 patent’’); 6,834,128 (‘‘the ’128
Final Initial Determination Finding a patent’’); 7,297,916 (‘‘the ’916 patent’’);
BILLING CODE 4334–63–P
Violation of Section 337; Request for and 7,933,454 (‘‘the ’454 patent’’). Id.
Written Submissions; Extension of The complaint further alleges that a
Target Date for Completion of the domestic industry exists in the United
States. The Commission’s Notice of
INTERNATIONAL TRADE Investigation
Investigation named as respondents
COMMISSION Nikon Corporation of Tokyo, Japan;
AGENCY: U.S. International Trade
Commission. Sendai Nikon Corporation of Natori,
[Investigation No. 731–TA–1203 (Review)] ACTION: Notice. Japan; Nikon Inc. of Melville, New York;
Nikon (Thailand) Co., Ltd. of Ayutthaya,
Xanthan Gum From China SUMMARY: Notice is hereby given that Thailand; Nikon Imaging (China) Co.,
the U.S. International Trade Ltd. of Wuxi, China; and PT Nikon
Determination
Commission has determined to review Indonesia of Jakarta, Indonesia. Id. at
On the basis of the record 1 developed in part the presiding administrative law 25627. The Office of Unfair Import
in the subject five-year review, the judge’s (‘‘ALJ’’) final initial Investigations is not participating in this
United States International Trade determination (‘‘Final ID’’) issued on investigation. Id. The Commission later
Commission (‘‘Commission’’) August 17, 2018, finding a violation of terminated respondent PT Nikon from
determines, pursuant to the Tariff Act of section 337 of the Tariff Act of 1930, as the investigation. Order No. 36 (Dec. 27,
1930 (‘‘the Act’’), that revocation of the amended, 19 U.S.C. 1337 (‘‘section 2017) (unreviewed Notice (Jan. 19,
337’’) in the above-captioned 2018)). The Commission also
antidumping duty order on xanthan
investigation. The Commission has also subsequently terminated from the
gum from China would be likely to lead investigation all claims of the ’163 and
determined to extend the target date for
to continuation or recurrence of material ’335 patents and certain claims of the
completion of the above-captioned
injury to an industry in the United ’440, ’241, ’128, ’916, and ’454 patents.
investigation to February 1, 2019.
States within a reasonably foreseeable Order No. 23 (Oct. 3, 2017) (unreviewed
FOR FURTHER INFORMATION CONTACT:
time. Notice (Oct. 17, 2017)); Order No. 32
Megan M. Valentine, Office of the
Background General Counsel, U.S. International (Nov. 22, 2017) (unreviewed Notice
Trade Commission, 500 E Street SW, (Dec. 19, 2017)); Order No. 45 (Feb. 5,
The Commission, pursuant to section Washington, DC 20436, telephone (202) 2018) (unreviewed Notice (Mar. 6,
751(c) of the Act (19 U.S.C. 1675(c)), 708–2301. Copies of non-confidential 2018)); Order No. 65 (Mar. 27, 2018)
instituted this review on June 1, 2018 documents filed in connection with this (unreviewed Notice (Apr. 25, 2018));
(83 FR 25485) and determined on investigation are or will be available for Order No. 67 (Apr. 13, 2018)
September 4, 2018 that it would inspection during official business (unreviewed Notice (May 4, 2018)).
conduct an expedited review (83 FR On August 17, 2018, the ALJ issued
hours (8:45 a.m. to 5:15 p.m.) in the
her Final ID, finding a violation of
48653, September 26, 2018). Office of the Secretary, U.S.
section 337 with respect to asserted
The Commission made this International Trade Commission, 500 E
claims 1 and 8 of the ’916, asserted
determination pursuant to section Street SW, Washington, DC 20436,
claims 6, 35, and 39 of the ’440 patent,
751(c) of the Act (19 U.S.C. 1675(c)). It telephone (202) 205–2000. General
and asserted claim 22 of the ’454 patent.
completed and filed its determination in information concerning the Commission
The final ID finds no violation as to
this review on November 15, 2018. The may also be obtained by accessing its
asserted claims 1, 12, and 16 of the ’128
internet server (https://www.usitc.gov). patent, asserted claim 10 of the ’241
views of the Commission are contained
The public record for this investigation patent, and asserted claims 37, 46, and
in USITC Publication 4839 (November
may be viewed on the Commission’s 50 of the ’440 patent.
2018), entitled Xanthan Gum from electronic docket (EDIS) at https://
China: Investigation No. 731–TA–1203 In particular, the Final ID finds that
edis.usitc.gov. Hearing-impaired asserted claims 1 and 8 of the ’916
(Review). persons are advised that information on patent read on the accused products
By order of the Commission. this matter can be obtained by under the DOE. The Final ID also finds
Issued: November 15, 2018. contacting the Commission’s TDD that asserted claims 1 and 8 are not
Lisa Barton, terminal on (202) 205–1810. invalid for obviousness under 35 U.S.C.
Secretary to the Commission. SUPPLEMENTARY INFORMATION: The 103. The Final ID further finds that
[FR Doc. 2018–25290 Filed 11–19–18; 8:45 am] Commission instituted this investigation Zeiss has satisfied the technical prong of
on June 2, 2017, based on a complaint the domestic industry (‘‘DI’’)
BILLING CODE 7020–02–P
filed by Carl Zeiss AG of Oberkochen, requirement with respect to the ’916
Germany, and ASML Netherlands B.V. patent.
of Veldhoven, Netherlands. 82 FR The Final ID finds that asserted
25627–28. The complaint alleges claims 6, 35, 37, 39, 46, and 50 of the
violations of section 337 of the Tariff ’440 patent read on the accused
Act of 1930, as amended, 19 U.S.C. 1337 products. The Final ID also finds that
1 The record is defined in sec. 207.2(f) of the (‘‘section 337), in the importation into asserted claim 37 is invalid as
Commission’s Rules of Practice and Procedure (19 the United States, the sale for anticipated under 35 U.S.C. 102, but
CFR 207.2(f)). importation, and the sale within the that asserted claims 6, 35, 39, 46, and

VerDate Sep<11>2014 20:31 Nov 19, 2018 Jkt 247001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\20NON1.SGM 20NON1

Federal Register / Vol. 83, No. 224 / Tuesday, November 20, 2018 / Notices 58593

50 are not invalid as anticipated under September 12, 2018, the parties filed under 35 U.S.C. 112. The Commission
35 U.S.C. 102 or for obviousness under responses to the respective petitions for has further determined to review the
35 U.S.C. 103. The Final ID further finds review. Final ID’s findings regarding whether
that Zeiss has satisfied the technical On September 19, 2018, Zeiss filed a asserted claim 1 reads on the accused
prong of the DI requirement with post-RD statement on the public interest products as well as the Final ID’s
respect to the ’440 patent. pursuant to Commission Rule findings concerning obviousness and
The Final ID finds that asserted claim 210.50(a)(4). Nikon did not submit a the technical prong of the DI
22 of the ’454 patent reads on the public interest statement. No public requirement with respect to that claim.
accused products. The Final ID also interest submissions were filed by the The Commission has determined to
finds that asserted claim 22 is not public in response to the post-RD review the Final ID’s finding that Zeiss
invalid as anticipated under 35 U.S.C. Commission Notice issued on August has satisfied the economic prong of the
102 or for obviousness under 35 U.S.C. 20, 2018. See Notice of Request for DI requirement under section
103. The Final ID further finds that Statements on the Public Interest (Aug. 337(a)(3)(B) and (C) with respect to the
Zeiss has satisfied the technical prong of 20, 2018); 83 FR 42938–39 (Aug. 24, ’440 patent.
the DI requirement with respect to the 2018). The Commission has determined not
’454 patent. Having examined the record of this to review the remaining issues decided
The Final ID finds that asserted investigation, including the Final ID, the in the Final ID. In particular, the
claims 1, 12, and 16 of the ’128 patent petitions for review, and the responses Commission has determined not to
do not read on the accused products. thereto, the Commission has determined review the ID’s findings that Zeiss failed
The Final ID also finds that asserted to review the Final ID in part. to show use in the United States of the
claims 1, 12, and 16 are invalid for With respect to the ’916 patent, the steps of the asserted claimed methods—
obviousness under 35 U.S.C. 103 or as Commission has determined to review i.e., claims 46 and 50 of the ’440 patent
indefinite under 35 U.S.C. 112. The the Final ID’s construction of the and claims 12 and 16 of the ’128 patent.
Final ID further finds that Zeiss has not limitation ‘‘wherein a thickness of the See Final ID at 282, 285. Zeiss has
satisfied the technical prong of the DI second set of layers is larger than a abandoned these method claims by
requirement with respect to the ’128 thickness of the first set of layers to failing to seek Commission review of
patent. reduce size of the sensor die.’’ these findings. Under Commission Rule
The Final ID finds that asserted claim Accordingly, the Commission has 210.43(b) ‘‘[a]ny issue not raised in a
10 of the ’241 patent reads on one of the determined to review the Final ID’s petition for review will be deemed to
accused products—the D610 camera. findings regarding whether asserted have been abandoned by the petitioning
The Final ID also finds that asserted claims 1 and 8 read on the accused party and may be disregarded by the
claim 10 is not invalid for obviousness products, as well as the Final ID’s Commission . . . .’’ 19 CFR 210.43(b).
under 35 U.S.C. 103. The Final ID finds findings concerning validity and the The Commission’s determination not to
that Zeiss has not satisfied the technical technical prong of the DI requirement review the ALJ’s findings that Zeiss
prong of the DI requirement with with respect to those claims. failed to show use of the steps of the
respect to the ’241 patent. With respect to the ’440 patent, the asserted claimed methods in the United
In addition, the Final ID finds that Commission has determined to review States results in a determination of no
Zeiss proved direct infringement by the Final ID’s finding that the limitation violation based on those claims. The
Nikon of only the asserted apparatus ‘‘photographic expert unit which adjusts Commission also reviews and strikes the
and system claims and failed to prove image capture parameters’’ recited in sentence that traverses pages 276–277 in
third-party direct infringement or unasserted independent claim 1 is not a the Final ID, which is the last sentence
indirect infringement with respect to means-plus-function claim under 35 just prior to heading XII.A.
asserted method claims 46 and 50 of the U.S.C. 112 ¶ 6. Accordingly, the The parties are requested to brief their
’440 patent and asserted method claims Commission has determined to review positions on the issues under review
12 and 16 of the ’128 patent. the Final ID’s findings regarding with reference to the applicable law and
The Final ID finds that Zeiss has whether asserted claims 6, 35, 37, and the evidentiary record. In connection
shown, with respect to the ’916, 440, 39 read on the accused products, as well with its review, the Commission is
and ’454 patent, that it has a domestic as the Final ID’s findings concerning particularly interested in responses to
industry in the process of being validity and the technical prong of the the following questions:
established pursuant to section 337(a)(2) DI requirement with respect to those 1. If the Commission were to construe
and has satisfied the economic prong of claims. the limitation ‘‘photographic expert unit
the DI requirement pursuant to section With respect to the ’454 patent, the which adjusts image capture
337(a)(3)(B) (significant employment of Commission has determined to review parameters’’ recited in claim 1 of the
labor or capital) and/or (C) (substantial the Final ID’s findings regarding ’440 patent as a means-plus-function
investment in exploitation of the whether asserted claim 22 reads on the claim under 35 U.S.C. 112 ¶ 6, please
asserted patents). accused products, as well as the Final explain whether the patent specification
The Final ID also contains the ALJ’s ID’s findings concerning validity and discloses sufficient structure to preclude
recommended determination on remedy the technical prong of the DI a finding of indefiniteness under 35
and bonding. The ALJ recommended requirement with respect to that claim. U.S.C. 112.
that the appropriate remedy is a limited With respect to the ’128 patent, the 2. Please address whether, under
exclusion order, including a Commission has determined to review Zeiss’s proposed construction, the
certification provision, and cease and the Final ID’s construction of the limitation ‘‘refined mosaic’’ recited in
desist orders against each of the Nikon limitations ‘‘coarse motion vector’’ and claim 1 of the ’128 patent is invalid
respondents. The ALJ recommended the ‘‘refined mosaic’’ recited in asserted under 35 U.S.C. 112 for indefiniteness.
imposition of a bond of 0% (no bond) claim 1. The Commission has also The parties have been invited to brief
during the period of Presidential review. determined to review the Final ID’s only these discrete issues, as
On September 4, 2018, the parties finding that claim 1, in particular the enumerated above, with reference to the
each filed petitions for review of limitation ‘‘means for generating a applicable law and evidentiary record.
numerous aspects of the Final ID. On refined mosaic,’’ is invalid as indefinite The parties are not to brief other issues

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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		Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-2301. Copies of non- confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server (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		83 FR 58592