Certain Vision-Based Driver Assistance System Cameras, Components Thereof, and Products Containing the Same: Commission's Determination To Review-in-Part a Final Initial Determination Finding No Violation of Section 337; Request for Written Submissions; Extension of the Target Date

Topics:  TRW Automotive

Lisa R. Barton
International Trade Commission
August 6, 2015

[Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)]
[Notices]
[Pages 46998-47000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19287]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-907]


Certain Vision-Based Driver Assistance System Cameras, Components 
Thereof, and Products Containing the Same: Commission's Determination 
To Review-in-Part a Final Initial Determination Finding No Violation of 
Section 337; Request for Written Submissions; Extension of the 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, 2015, finding no violation of section 337 of the 
Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned 
investigation. The Commission also extends the target date to October 
8, 2015.

FOR FURTHER INFORMATION CONTACT: Amanda P. Fisherow, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2737. The public version of 
the complaint can be accessed on the Commission's electronic docket 
(EDIS) at http://edis.usitc.gov, and 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 this investigation 
on January 28, 2014, based on a complaint filed by Magna Electronics 
Inc. of Auburn Hills, Michigan. See 79 FR 4490-91 (Jan. 28, 2014). 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 vision-based driver 
assistance system cameras and components thereof by reason of 
infringement of certain claims of U.S. Patent Nos. 8,116,929 (``the 
'929 patent'') and 8,593,521 (``the '521 patent''). The complaint 
further alleges the existence of a domestic industry. Subsequently, the 
complaint and notice of investigation were amended by adding U.S. 
Patent Nos. 8,686,840 (``the '840 patent'') and 8,692,659 (``the '659 
patent''), and by terminating the investigation inpart as to all claims 
of the '521 patent. The '929 patent was later terminated from the 
investigation. The respondent named in the Commission's notice of 
investigation is TRW Automotive U.S., LLC of Livonia, Michigan 
(``TRW''). The Office of Unfair Import Investigations (``OUII'') was 
also named a party in the investigation.
    On April 27, 2015, the ALJ issued his final ID. The ALJ found that 
no violation of section 337 has occurred. Specifically, the ALJ found 
that the '659 and '840 patents were not indirectly infringed, that the 
'840 patent is invalid, and that the domestic industry requirement for 
the '840 patent has not been met. The ALJ also issued his 
recommendation on remedy and bonding.
    On May 11, 2015, Magna and TRW each filed petitions for review. On 
May 19, 2015, the parties, including OUII, filed responses to the 
respective petitions for review. On May 28, 2015, Magna filed a 
corrected response. The Commission has determined to review the ALJ's 
findings with respect to: (1) Importation; (2) whether the asserted 
claims of the '659 patent require a

[[Page 46999]]

camera; (3) direct infringement of the '659 patent; (4) induced 
infringement of the '659 and '840 patents; (5) contributory 
infringement of the '659 and '840 patents; (6) whether the '659 patent 
satisfies the requirements of 35 U.S.C. 112; (7) anticipation of the 
'659 patent claims based on Rayner; (8) anticipation of the '659 patent 
claims based on Batavia; (9) anticipation of the '659 patent claims 
based on the SafeTrac Prototype; (10) obviousness of the '659 patent 
based on Rayner in combination with Blank; (11) obviousness of the '659 
patent based on Batavia, the SafeTrac Prototype, and the Navlab 1997 
Demo; (12) whether the claims are invalid under the America Invents Act 
Sec.  33(a); and (13) the technical prong of domestic industry for the 
'659 and '840 patents. The Commission has amended the scope of the 
investigation to conform to the pleadings of the parties as the ID 
found.
    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 interested in 
only responses to the following questions:

    1. Please provide a legal analysis discussing the relevant 
evidence concerning whether the alleged importation(s), sale for 
importation, or sale within the United States after importation 
meets the statutory requirements for finding a violation of section 
337 (i.e., do the alleged importations, sales for importation, or 
sales in the United States after importation by TRW satisfy 19 
U.S.C. 1337(a)(1)(B)). Please discuss any relevant case law 
including Commission precedent. Include in your discussion an 
analysis for each of the accused products.
    2. Please discuss any intrinsic evidence, including the 
unasserted claims, file history, or related patents and applications 
(and prosecution histories thereof) that would guide one of ordinary 
skill in the art in determining whether the asserted claims of the 
'659 patent require a camera. Include in your discussion any 
relevant case law (e.g., case law pertaining to construction of 
``configured to'' limitations).
    3. In making his direct infringement finding for the '659 
patent, the ALJ cited several non-admitted physical exhibits. For 
each of these citations, please identify whether the physical 
exhibit was converted into a demonstrative exhibit and identify the 
corresponding demonstrative exhibit, if any.
    4. Discuss whether TRW has indirectly infringed the '659 patent 
in light of the Supreme Court's decision in Commil USA, LLC v. Cisco 
Sys., Inc., 135 S.Ct. 1920 (2015). In your response to this 
question, please include the following for each of the accused 
products:
    (a) An analysis of whether all of the requirements for both 
induced and contributory infringement are met.
    (b) Please address if the focus of the analysis for determining 
whether there are substantial non-infringing uses should be directed 
to: (1) the vehicle having the accused accessory mounting system 
installed, (2) the accused S-Cams, or (3) the Mobileye EyeQ chip. 
Please discuss (with citations to the record) whether there are 
substantial non-infringing uses for: (1) the accused S-Cams; and (2) 
the Mobileye EyeQ chip. Please cite to any relevant case law to 
support your position.
    (c) Discuss whether Magna must prove that TRW induced 
infringement of each limitation of the asserted claims before TRW 
can be held liable for induced infringement.
    (d) Please discuss whether, under the proper legal analysis, the 
relevant inducing acts must be related to the vehicle, the accused 
S-Cams, or the Mobileye EyeQ chip. Please cite to any relevant case 
law to support your position.
    (e) Are TRW's sales to GM that occurred after issuance of the 
'659 patent, sufficient acts to give rise to induced infringement 
liability? Please cite the relevant case law and the record 
evidence.
    5. [[ ]]
    6. Should the limitations of ``said structure is configured to 
accommodate a forward facing camera'' and ``a structure configured 
for mounting to said plurality of attachment members'' of claims 1, 
and 90 of the '659 patent be treated as means-plus-function 
limitations? See Williamson v. Citrix Online, LLC, No. 2013-1130, 
2015 WL 3687459 (Fed. Cir. June 16, 2015). If these limitations are 
means-plus-function limitations, please discuss where the structure 
corresponding to the claimed function is disclosed in the 
specification.
    7. Must every limitation of a claimed invention be disclosed in 
a single embodiment in the specification to meet the written 
description requirement? Please address this question in the context 
of the relevant claims of the '659 patent and any relevant case law. 
See TRW Petition for Review at 33-39.
    8. Did TRW, in its briefing before the ALJ, meet its burden to 
prove invalidity of the '659 patent by clear and convincing evidence 
in arguing a motivation to combine the admitted prior art or Blank 
with Rayner?
    9. Please discuss the record evidence, if any, regarding whether 
there is a motivation to combine the admitted prior art or Blank 
with the teachings of Rayner.
    10. Did TRW meet its burden, in its briefing before the ALJ, to 
prove obviousness of the '659 patent by clear and convincing 
evidence for the combination of Batavia, SafeTrac, and Navlab 1997 
Demo references? Discuss whether each of the limitations of the 
asserted claims is met by the Batavia, SafeTrac, and Navlab 1997 
Demo references.

    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. When 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 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 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 persons 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. The complainant and OUII are also requested to 
submit proposed remedial orders for the Commission's consideration.

[[Page 47000]]

    Complainant is also requested to state the date that the '659 
patent expires and the HTSUS numbers under which the accused products 
are imported. The written submissions and proposed remedial orders must 
be filed no later than close of business on Friday, August 14, 2015. 
Reply submissions must be filed no later than the close of business on 
Monday, August 24, 2015. No further submissions on these issues will be 
permitted unless otherwise ordered by the Commission. The page limit 
for the parties' initial submissions is 100 pages. The parties reply 
submissions, if any, are limited to 50 pages.
    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-907'') 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. A 
redacted non-confidential version of the document must also be filed 
simultaneously with the any confidential filing. All non-confidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
    The Commission extends the target date to October 8, 2015.
    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: July 31, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-19287 Filed 8-5-15; 8:45 am]
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