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)
Federal Register Volume 83, Issue 226 (November 23, 2018)
| Page Range | 59415-59417 | |
| FR Document | 2018-25463 |
[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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
![Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices 59415
this ICR, contact Paul Matuska by email summarize each comment in our request and return flows. Reclamation
at pmatuska@usbr.gov, or by telephone to OMB to approve this ICR. Before determines the consumptive use by
at 702–293–8164. including your address, phone number, subtracting return flow from diversions
SUPPLEMENTARY INFORMATION: In email address, or other personal or by other engineering means.
accordance with the Paperwork identifying information in your Title of Collection: Diversions, Return
Reduction Act of 1995, we provide the comment, you should be aware that Flow, and Consumptive Use of Colorado
general public and other Federal your entire comment—including your River Water in the Lower Colorado
agencies with an opportunity to personal identifying information—may River Basin.
comment on new, proposed, revised, be made publicly available at any time. OMB Control Number: 1006–0015.
and continuing collections of While you can ask us in your comment Form Number: LC–2A, LC–2B,
information. This helps us assess the to withhold your personal identifying Custom Forms.
impact of our information collection information from public review, we Type of Review: Revision of a
requirements and minimize the public’s cannot guarantee that we will be able to currently approved collection.
reporting burden. It also helps the do so.
Respondents/Affected Public: The
public understand our information Abstract: The Bureau of Reclamation
delivers Colorado River water to water respondents will include the Lower
collection requirements and provide the Basin States (Arizona, California, and
requested data in the desired format. users for diversion and beneficial
consumptive use in the States of Nevada), local and tribal entities, water
We are soliciting comments on the districts, and individuals that use
proposed ICR that is described below. Arizona, California, and Nevada. The
Consolidated Decree of the United Colorado River water.
We are especially interested in public
States Supreme Court in the case of Total Estimated Number of Annual
comment addressing the following
Arizona v. California, et al., entered Respondents: 53.
issues: (1) Is the collection necessary to
the proper functions of Reclamation; (2) March 27, 2006 (547 U.S. 150 (2006)), Total Estimated Number of Annual
will this information be processed and requires the Secretary of the Interior to Responses: 306.
used in a timely manner; (3) is the prepare and maintain complete, Estimated Completion Time per
estimate of burden accurate; (4) how detailed, and accurate records of Response: See table.
might Reclamation enhance the quality, diversions of water, return flow, and Total Estimated Number of Annual
utility, and clarity of the information to consumptive use and make these Burden Hours: 51 hours.
be collected; and (5) how might records available at least annually. The Respondent’s Obligation: Required to
Reclamation minimize the burden of information collected ensures that a obtain or retain a benefit.
this collection on the respondents, State or a water user within a State does Frequency of Collection: Monthly,
including through the use of not exceed its authorized use of annually, or otherwise as stipulated by
information technology. Colorado River water. Water users are the entity’s water delivery contract with
Comments that you submit in obligated by provisions in their water the Secretary of the Interior.
response to this notice are a matter of delivery contracts to provide Total Estimated Annual Non-hour
public record. We will include or Reclamation information on diversions Burden Cost: 0.
Number Total Total
Number of Minutes/
Monthly/annual Form No. responses/ hours/ responses/
respondents response respondent year year
Annual ................................. LC–72A .............................. 1 10 1 0.17 1
Annual ................................. LC–72B .............................. 12 10 1 2 12
Monthly ................................ Custom Forms .................... 23 10 12 46 276
Annual ................................. Custom Forms .................... 17 10 1 2.8 17
Total ............................. ............................................. 53 ........................ ........................ 51 306
An agency may not conduct or INTERNATIONAL TRADE SUMMARY: Notice is hereby given that
sponsor and a person is not required to COMMISSION the U.S. International Trade
respond to a collection of information Commission has determined to affirm-
unless it displays a currently valid OMB [Investigation No. 337–TA–1053] in-part, modify-in-part, reverse-in-part,
control number. and strike certain portions of a final
Certain Two-Way Radio Equipment and initial determination (‘‘ID’’) of the
The authority for this action is the
Systems, Related Software and presiding administrative law judge
Paperwork Reduction Act of 1995 (44
Components Thereof; Commission (‘‘ALJ’’). Accordingly, the Commission
U.S.C. 3501 et seq.). has determined that a violation of
Decision To Affirm-in-Part, Modify-in-
Dated: October 26, 2018. Part, Reverse-in-Part, and Strike section 337 has occurred in the above-
Terrance J. Fulp, Certain Portions of a Final Initial captioned investigation, and has issued
Regional Director, Lower Colorado Region. Determination Finding a Violation of a limited exclusion order directed
[FR Doc. 2018–25498 Filed 11–21–18; 8:45 am] Section 337; Issuance of Limited against infringing two-way radio
Exclusion Order and Cease and Desist products and cease and desist orders
amozie on DSK3GDR082PROD with NOTICES1
BILLING CODE 4332–90–P
Orders; and Termination of the directed against two domestic
Investigation respondents found in violation. The
Commission has terminated the
AGENCY:U.S. International Trade investigation.
Commission. FOR FURTHER INFORMATION CONTACT:
ACTION: Notice. Clint Gerdine, Esq., Office of the
General Counsel, U.S. International
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![Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices 59417
On September 18 and 25, 2018, or distributors for two-way radio Treatment for Currently Dutiable
respectively, complainant and equipment and systems, related Imports.
respondents each filed a brief and a software and components thereof that DATES: December 6, 2018: Deadline for
reply brief on all issues for which the infringe one or more of claims 1, 6, 17, filing requests to appear at the public
Commission requested written and 21 of the ’869 patent; claims 1 and hearing.
submissions. The Commission also 11 of the ’701 patent; and claims 7–8 of December 10, 2018: Deadline for filing
received written submissions on the the ’991 patent. prehearing briefs and statements.
public interest from interested non- The Commission further determined December 18, 2018: Public hearing.
parties on September 18, 2018. that the public interest factors January 4, 2019: Deadline for filing
Having reviewed the record in this enumerated in section 337(d)(1) and post-hearing briefs and submissions.
investigation, including the final ID and (f)(1) (19 U.S.C. 1337(d)(1), (f)(1)) do not January 4, 2019: Deadline for filing all
the parties’ written submissions, the preclude issuance of the limited other written statements.
Commission has determined to affirm- exclusion order or cease and desist March 19, 2019: Transmittal of
in-part, reverse-in-part, modify-in-part, orders. Finally, the Commission Commission report to the USTR.
and strike certain portions of the final determined that a bond of 44 percent of ADDRESSES: All Commission offices,
ID’s findings under review. Specifically, the entered value of the covered including the Commission’s hearing
the Commission has: (1) Reversed the products is required to permit rooms, are located in the U.S.
ID’s finding that Hytera’s accused temporary importation during the International Trade Commission
redesigned products infringe claims 9 period of Presidential review (19 U.S.C. Building, 500 E Street SW, Washington,
and 13–15 of the ’284 patent under the 1337(j)). The Commission has also DC. All written submissions should be
doctrine of equivalents; (2) struck the issued an opinion explaining the basis addressed to the Secretary, U.S.
first and second sentences of the fourth for the Commission’s action. The International Trade Commission, 500 E
paragraph on page 8 in Order No. 38, Commission’s order and opinion were Street SW, Washington, DC 20436. The
and struck the third sentence of this delivered to the President and to the public record for this investigation may
paragraph ‘‘There is no analysis’’ and United States Trade Representative on be viewed on the Commission’s
substituted ‘‘There is no analysis in Dr. the day of their issuance. The electronic docket (EDIS) at https://
Akl’s Report,’’ and struck the second investigation is terminated. edis.usitc.gov.
sentence of the first full paragraph on The authority for the Commission’s FOR FURTHER INFORMATION CONTACT:
page 9 of Order No. 38; (3) affirmed determination is contained in section
Order No. 47 and supplemented and Project Leader Diana Friedman (202–
337 of the Tariff Act of 1930, as 205–3433 or diana.friedman@usitc.gov )
clarified its reasoning; (4) took no amended, 19 U.S.C. 1337, and in part
position on the ID’s drawing of an or Deputy Project Leader Mary Roop
210 of the Commission’s Rules of (202–708–2277 or mary.roop@usitc.gov)
adverse inference against Hytera as part Practice and Procedure, 19 CFR part
of its finding of indirect infringement; for information specific to this
210. investigation. For information on the
and (5) found that Hytera’s redesigned
products do not infringe the ’701, ’869, By order of the Commission. legal aspects of this investigation,
or ’991 patents. Accordingly, the Issued: November 16, 2018. contact William Gearhart of the
Commission has found that there is a Lisa Barton, Commission’s Office of the General
violation of section 337 with respect to Secretary to the Commission. Counsel (202–205–3091 or
the ’991, ’869, and ’701 patents. [FR Doc. 2018–25463 Filed 11–21–18; 8:45 am]
william.gearhart@usitc.gov). The media
Having found a violation of section should contact Margaret O’Laughlin,
BILLING CODE 7020–02–P
337 as to these patents, the Commission Office of External Relations (202–205–
has made its determination on the 1819 or margaret.olaughlin@usitc.gov).
issues of remedy, the public interest, INTERNATIONAL TRADE Hearing-impaired individuals may
and bonding. The Commission has COMMISSION obtain information on this matter by
determined that the appropriate form of contacting the Commission’s TDD
relief is (1) a limited exclusion order [Investigation Nos. TA–131–044 and TPA– terminal at 202–205–1810. General
105–005] information concerning the Commission
prohibiting the unlicensed entry of two-
way radio equipment and systems, may also be obtained by accessing its
U.S.-EU Trade Agreement: Advice on
related software and components website (https://www.usitc.gov). Persons
the Probable Economic Effect of
thereof that infringe one or more of with mobility impairments who will
Providing Duty-Free Treatment for
claims 1, 6, 17, and 21 of the ’869 need special assistance in gaining access
Currently Dutiable Imports; Institution
patent; claims 1 and 11 of the ’701 to the Commission should contact the
of Investigation and Scheduling of
patent; and claims 7–8 of the ’991 Office of the Secretary at 202–205–2000.
Hearing
patent, which are manufactured abroad SUPPLEMENTARY INFORMATION:
by or on behalf of, or are imported by AGENCY: United States International Background: In his letter of November
or on behalf of, Hytera, or any of its Trade Commission. 8, 2018, the USTR requested that the
affiliated companies, parents, ACTION: Notice of investigation and Commission provide certain advice
subsidiaries, or other related business scheduling of a public hearing. under section 131 of the Trade Act of
entities, or their successors or assigns; 1974 (19 U.S.C. 2151) and an
and (2) cease and desist orders SUMMARY: Following receipt on assessment under section
prohibiting Hytera America or Hytera November 9, 2018, of a request from the 105(a)(2)(B)(i)(III) of the Bipartisan
amozie on DSK3GDR082PROD with NOTICES1
Communications America from United States Trade Representative Congressional Trade Priorities and
conducting any of the following (USTR) for a report containing advice Accountability Act of 2015 (19 U.S.C.
activities in the United States: and an assessment, the Commission 4204(a)(2)(B)(i)(III)) with respect to the
Importing, selling, marketing, instituted Investigation Nos. TA–131– effects of providing duty-free treatment
advertising, distributing, offering for 044 and TPA–105–005, U.S.-EU Trade for imports of products from the EU.
sale, transferring (except for Agreement: Advice on the Probable More specifically, the USTR, under
exportation), and soliciting U.S. agents Economic Effect of Providing Duty-free authority delegated by the President and
VerDate Sep<11>2014 18:33 Nov 21, 2018 Jkt 247001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\23NON1.SGM 23NON1](https://thefederalregister.org/doc/83_FR_59641/page/3.svg)
Document Created: 2018-11-27 12:58:40
Document Modified: 2018-11-27 12:58:40
| 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 | Clint Gerdine, Esq., Office of the General Counsel, U.S. International 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. | |
| FR Citation | 83 FR 59415 |
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