83 FR 59415 - Certain Two-Way Radio Equipment and Systems, Related Software and Components Thereof; Commission Decision To Affirm-in-Part, Modify-in-Part, Reverse-in-Part, and Strike Certain Portions of a Final Initial Determination Finding a Violation of Section 337; Issuance of Limited Exclusion Order and Cease and Desist Orders; and Termination of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 83, Issue 226 (November 23, 2018)

Notice is hereby given that the U.S. International Trade Commission has determined to affirm-in-part, modify-in-part, reverse- in-part, and strike certain portions of a final initial determination (``ID'') of the presiding administrative law judge (``ALJ''). Accordingly, the Commission has determined that a violation of section 337 has occurred in the above-captioned investigation, and has issued a limited exclusion order directed against infringing two-way radio products and cease and desist orders directed against two domestic respondents found in violation. The Commission has terminated the investigation.

[Federal Register Volume 83, Number 226 (Friday, November 23, 2018)]
[Notices]
[Pages 59415-59417]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-25463]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1053]


Certain Two-Way Radio Equipment and Systems, Related Software and 
Components Thereof; Commission Decision To Affirm-in-Part, Modify-in-
Part, Reverse-in-Part, and Strike Certain Portions of a Final Initial 
Determination Finding a Violation of Section 337; Issuance of Limited 
Exclusion Order and Cease and Desist Orders; and Termination 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 affirm-in-part, modify-in-part, reverse-
in-part, and strike certain portions of a final initial determination 
(``ID'') of the presiding administrative law judge (``ALJ''). 
Accordingly, the Commission has determined that a violation of section 
337 has occurred in the above-captioned investigation, and has issued a 
limited exclusion order directed against infringing two-way radio 
products and cease and desist orders directed against two domestic 
respondents found in violation. The Commission has terminated the 
investigation.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International

[[Page 59416]]

Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 
(202) 708-2310. 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 at 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 May 3, 2017, based on a complaint filed on behalf of Motorola 
Solutions, Inc. (``Motorola'') of Chicago, Illinois. 82 FR 20635-36. 
The complaint alleges violations of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337, by reason of infringement of certain 
claims of U.S. Patent Nos.: 8,116,284 (``the '284 patent''); 7,369,869 
(``the '869 patent''); 7,729,701 (``the '701 patent''); 8,279,991 
(``the `991 patent''); 9,099,972 (``the '972 patent''); 8,032,169 
(``the '169 patent''); and 6,591,111 (``the '111 patent''). The 
Commission's Notice of Investigation named as respondents Hytera 
Communications Corp. Ltd. of Shenzhen, China; Hytera America, Inc. 
(``Hytera America'') of Miramar, Florida; and Hytera Communications 
America (West), Inc. (``Hytera Communications America'') of Irvine, 
California (collectively, ``Hytera''). The Office of Unfair Import 
Investigations is not participating in the investigation. Id.
    On September 18, 2017, the Commission issued notice of its 
determination not to review an ID (Order No. 10) terminating the 
investigation as to: (1) Claims 2, 5, 10, and 16 of the '284 patent; 
(2) claims 2-3, 8, 12, 14-15, 20, 22-24, and 30 of the '169 patent; (3) 
claims 5, 8, 11-14, 18, and 22 of the '869 patent; (4) claims 3, 5, 8-
10, 15, and 17-18 of the '701 patent; (5) claim 3 of the '972 patent; 
and (6) claims 3-5, 8-10, and 14 of the '111 patent. On October 17, 
2017, the Commission issued notice of its determination not to review 
an ID (Order No. 16) terminating the investigation as to claim 10 of 
the '869 patent. On November 14, 2017, the Commission issued notice of 
its determination not to review an ID (Order No. 19) terminating the 
investigation as to: (1) Claims 1, 4, 12, and 18 of the '284 patent; 
(2) claims 4, 13, 16, and 25 of the '169 patent; (3) claims 3-4, 9, 19-
20, and 23-24 of the '869 patent; (4) claims 2, 4, and 14 of the '701 
patent; (5) claims 4 and 8 of the '972 patent; (6) claims 6 and 12 of 
the '111 patent; and (7) claim 19 of the '991 patent for the purposes 
of satisfying the technical prong of the domestic industry requirement.
    On December 4, 2017, the Commission issued notice of its 
determination not to review an ID (Order No. 21) terminating the 
investigation as to claims 5 and 18 of the '169 patent. On January 3, 
2018, the Commission issued notice of its determination not to review 
an ID (Order No. 23) terminating the investigation as to: (1) The '111 
and '169 patents; (2) claims 2 and 7 of the '869 patent; and (3) claims 
7-8 and 19 of the '284 patent. On the same date, the Commission issued 
notice of its determination not to review an ID (Order No. 24) 
terminating the investigation as to claim 1 of the '701 patent. On 
February 6, 2018, the Commission issued notice of its determination not 
to review an ID (Order No. 31) terminating the investigation as to the 
following patent claims: (1) Claim 13 of the '701 patent; (2) claim 6 
of the '284 patent; and (3) claim 1 of the '972 patent. On February 26, 
2018, the Commission issued notice of its determination not to review 
an ID (Order No. 40) terminating the investigation as to the '972 
patent.
    On January 26, 2018, the ALJ issued Order No. 38 which granted 
Motorola's motion in limine to preclude Hytera's licensing defense. On 
May 18, 2018, the ALJ issued Order No. 47, which granted-in-part 
Motorola's motion to strike certain portions of Hytera's expert 
testimony at the evidentiary hearing. On July 3, 2018, the ALJ issued 
her final ID and recommended determination (``RD'') on remedy and 
bonding in one document. The ID finds that Hytera's accused products 
infringe claims 1, 6, 17, and 21 of the '869 patent; claims 1 and 11 of 
the '701 patent; and claims 7-8 of the '991 patent. The ID also finds 
that Hytera's accused legacy products literally infringe claims 9 and 
13-15 of the '284 patent and that Hytera's accused redesigned products 
infringe these claims under the doctrine of equivalents. The ID also 
finds that Hytera induced infringement of and contributorily infringed 
all of the claims of the asserted patents. As part of the ID's finding 
of indirect infringement, the ID applied an adverse inference against 
Hytera for certain of its witnesses' invocation of their Fifth 
Amendment right against self-incrimination. The ID also finds that 
Motorola satisfies the domestic industry requirement with respect to 
the '869, '701, and '991 patents, but that its domestic products do not 
satisfy the technical prong of the domestic industry requirement with 
respect to the '284 patent. Accordingly, the ID finds a violation of 
section 337 with respect to the '869, '701, and '991 patents. The RD 
recommended the issuance of limited exclusion orders directed against 
Hytera's infringing products and cease and desist orders directed 
against two domestic Hytera respondents.
    On July 17, 2018, Motorola and Hytera petitioned for review of the 
final ID. Hytera's petition for review included a petition for review 
of Order Nos. 38 and 47. On July 25, 2018, Motorola and Hytera each 
filed a response in opposition to the other party's petition for 
review. On August 6 and 7, 2018, respectively, Hytera and Motorola 
filed statements on the public interest. On August 10, 2018, the 
Commission received statements on the public interest from interested 
non-parties.
    On September 4, 2018, the Commission issued notice of its 
determination to review the following: (1) Order No. 38's finding that 
Hytera's licensing defense is precluded; (2) Order No. 47's finding 
that certain expert testimony from Hytera at the evidentiary hearing is 
stricken; (3) the ID's finding that Hytera's accused redesigned 
products infringe claims 9 and 13-15 of the '284 patent under the 
doctrine of equivalents; (4) the ID's application of an adverse 
inference against Hytera as part of the finding of indirect 
infringement; and (5) the ID's finding that insufficient record 
evidence exists to make a conclusive determination as to whether any 
redesigned products infringe the '701 patent and ID's lack of an 
express finding on this issue with respect to the '869 or '991 patent. 
The Commission determined not to review the remainder of the final ID. 
The determinations made in the final ID that were not reviewed became 
final determinations of the Commission by operation of rule. See 19 CFR 
210.43(h)(2). The Commission also (1) requested the parties to respond 
to certain questions concerning the issues under review; and (2) 
requested written submissions on the issues of remedy, the public 
interest, and bonding from the parties, interested government agencies, 
and interested non-parties, including requesting the parties to respond 
to certain questions concerning the public interest. 83 FR 45679-81 
(Sept. 10, 2018).

[[Page 59417]]

    On September 18 and 25, 2018, respectively, complainant and 
respondents each filed a brief and a reply brief on all issues for 
which the Commission requested written submissions. The Commission also 
received written submissions on the public interest from interested 
non-parties on September 18, 2018.
    Having reviewed the record in this investigation, including the 
final ID and the parties' written submissions, the Commission has 
determined to affirm-in-part, reverse-in-part, modify-in-part, and 
strike certain portions of the final ID's findings under review. 
Specifically, the Commission has: (1) Reversed the ID's finding that 
Hytera's accused redesigned products infringe claims 9 and 13-15 of the 
'284 patent under the doctrine of equivalents; (2) struck the first and 
second sentences of the fourth paragraph on page 8 in Order No. 38, and 
struck the third sentence of this paragraph ``There is no analysis'' 
and substituted ``There is no analysis in Dr. Akl's Report,'' and 
struck the second sentence of the first full paragraph on page 9 of 
Order No. 38; (3) affirmed Order No. 47 and supplemented and clarified 
its reasoning; (4) took no position on the ID's drawing of an adverse 
inference against Hytera as part of its finding of indirect 
infringement; and (5) found that Hytera's redesigned products do not 
infringe the '701, '869, or '991 patents. Accordingly, the Commission 
has found that there is a violation of section 337 with respect to the 
'991, '869, and '701 patents.
    Having found a violation of section 337 as to these patents, the 
Commission has made its determination on the issues of remedy, the 
public interest, and bonding. The Commission has determined that the 
appropriate form of relief is (1) a limited exclusion order prohibiting 
the unlicensed entry of two-way radio equipment and systems, related 
software and components thereof that infringe one or more of claims 1, 
6, 17, and 21 of the '869 patent; claims 1 and 11 of the '701 patent; 
and claims 7-8 of the '991 patent, which are manufactured abroad by or 
on behalf of, or are imported by or on behalf of, Hytera, or any of its 
affiliated companies, parents, subsidiaries, or other related business 
entities, or their successors or assigns; and (2) cease and desist 
orders prohibiting Hytera America or Hytera Communications America from 
conducting any of the following activities in the United States: 
Importing, selling, marketing, advertising, distributing, offering for 
sale, transferring (except for exportation), and soliciting U.S. agents 
or distributors for two-way radio equipment and systems, related 
software and components thereof that infringe one or more of claims 1, 
6, 17, and 21 of the '869 patent; claims 1 and 11 of the '701 patent; 
and claims 7-8 of the '991 patent.
    The Commission further determined that the public interest factors 
enumerated in section 337(d)(1) and (f)(1) (19 U.S.C. 1337(d)(1), 
(f)(1)) do not preclude issuance of the limited exclusion order or 
cease and desist orders. Finally, the Commission determined that a bond 
of 44 percent of the entered value of the covered products is required 
to permit temporary importation during the period of Presidential 
review (19 U.S.C. 1337(j)). The Commission has also issued an opinion 
explaining the basis for the Commission's action. The Commission's 
order and opinion were delivered to the President and to the United 
States Trade Representative on the day of their issuance. The 
investigation is terminated.
    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 16, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-25463 Filed 11-21-18; 8:45 am]
BILLING CODE 7020-02-P