Daily Rules, Proposed Rules, and Notices of the Federal Government
The Commission instituted this investigation on November 15, 2007, based on a complaint filed by Funai Electric Co., Ltd. of Japan and Funai Corporation of Rutherford, NJ (collectively “Funai”), alleging violations of section 337 of the Tariff Act of 1930 (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 digital televisions and certain products containing the same and methods of using the same by reason of infringement of certain claims of United States Patent Nos. 5,329,369 (“the ‘369 patent”) and 6,115,074 (“the ‘074 patent”). 72
On November 17, 2008, the ALJ issued his final ID, finding that a violation of section 337 has occurred in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain digital televisions and certain products containing the same and methods of using the same by reason of infringement of certain claims of the ‘074 patent. The ALJ found that no violation exists with respect to the ‘369 patent. On November 25, 2008, the ALJ issued a recommended determination on remedy and bonding (“RD”). The respondents, the Commission investigative attorney (“IA”), and complainant Funai filed petitions for review of the ID on December 1, 2008. The IA, the respondents, and complainant Funai each filed responses to the petitions for review on December 9, 2008.
On December 4, 2008, the respondents filed a motion requesting judicial notice of Funai's response to an office action in the pending U.S. Patent and Trademark Office (“USPTO”) reexamination proceedings concerning the ‘074 patent. In the alternative, the respondents requested that the evidentiary record be reopened to allow Funai's response to the USPTO to be admitted. On December 15, 2008, the IA and Funai replied to the respondents' motion. On December 17, 2008, the respondents filed a motion for leave to reply and, thereafter, corrected its submission on December 18, 2008. On December 18, 2008 and December 29, 2008, respectively, Funai and the IA replied to respondents' motion for leave.
The Commission notes that the ALJ took notice of the ongoing reexamination proceedings. The Commission has determined to deny Respondents' motion to take judicial notice of specific documents filed in that proceeding. The Commission has also determined to deny Respondents' alternative request for reopening of the record as well as Respondents' motion for leave to reply.
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
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:
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 In the Matter of 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.
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 210.6. Documents for which confidential treatment by the Commission is sought will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary.
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 sections 210.42-46 and 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-46 and 210.50).
By order of the Commission.