Certain Infotainment Systems, Components Thereof, and Automobiles Containing the Same; Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, Public Interest, and Bonding; Extension of Target Date |
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Topics: Toyota
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Lisa Barton
International Trade Commission
3 March 2020
[Federal Register Volume 85, Number 42 (Tuesday, March 3, 2020)]
[Notices]
[Pages 12576-12578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04284]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1119]
Certain Infotainment Systems, Components Thereof, and Automobiles
Containing the Same; Commission Determination To Review in Part a Final
Initial Determination Finding No Violation of Section 337; Schedule for
Filing Written Submissions on the Issues Under Review and on Remedy,
Public Interest, and Bonding; Extension of 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 (the ``Commission'') has determined to review in part the
final initial determination (``FID'') of the administrative law judge
(``ALJ''). The Commission requests briefing from the parties on certain
issues under review, as indicated in this notice. The Commission also
requests briefing from the parties, interested government agencies, and
interested persons on the issues of remedy, the public interest, and
bonding. The Commission has also determined to extend the target date
for completion of this investigation until April 30, 2020.
FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone 202-205-3228. 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 Information System (``EDIS'')
(https://edis.usitc.gov). Hearing-impaired persons are advised that
information on this matter can be obtained by contacting the
Commission's TDD terminal, telephone 202-205-1810.
SUPPLEMENTARY INFORMATION: On June 12, 2018, the Commission instituted
this investigation based on a complaint filed by Broadcom Corporation
(``Broadcom'') of San Jose, California. 83 FR 27349 (June 12, 2018).
The complaint alleged that 19 U.S.C. 1337, as amended, (``section
337'') was violated due to the importation into the United States, sale
for importation, or sale in the United States after importation of
certain infotainment systems, components thereof, and automobiles
containing same that purportedly infringe one or more claims of U.S.
Patent Nos. 6,937,187 (``the '187 patent''); 8,902,104 (``the '104
patent''); 7,512,752 (``the '752 patent''); 7,530,027 (``the '027
patent''); 8,284,844 (``the '844 patent''); and 7,437,583 (``the '583
patent'') (collectively, ``the Asserted Patents''). The notice of
investigation named 15 respondents, including Toyota Motor Corporation
of Aichi, Japan; Toyota Motor North America, Inc. of Plano, TX; Toyota
Motor Sales, U.S.A., Inc. of Plano, TX; Toyota Motor Engineering &
Manufacturing North America, Inc. of Plano, TX; Toyota Motor
Manufacturing, Indiana, Inc. of Princeton, IN; Toyota Motor
Manufacturing, Kentucky, Inc. of Erlanger, KY; Toyota Motor
Manufacturing, Mississippi, Inc. of Tupelo, MS; Toyota Motor
Manufacturing, Texas, Inc. of San Antonio, TX; Panasonic Corporation of
Osaka, Japan; Panasonic Corporation of North America of Newark, NJ;
DENSO TEN Limited of Kobe City, Japan; DENSO TEN AMERICA Limited of
Torrance, CA; Renesas Electronics Corporation of Tokyo, Japan; Renesas
Electronics America, Inc. of Milpitas, CA; and Japan Radio Co., Ltd. of
Tokyo, Japan. Id. at 27349-50. The Office of Unfair Import
Investigations was not named as a party. Id. at 27351. The complaint
and notice of investigation were later amended to add ten more
respondents, including Pioneer Corporation of Tokyo, Japan; Pioneer
Automotive Technologies, Inc. of Farmington Hills, MI; DENSO
Corporation of Aichi, Japan; DENSO International America, Inc. of
Southfield, MI; DENSO Manufacturing Tennessee, Inc. of Maryville, TN;
DENSO Wireless Systems America, Inc. of Vista, CA; u-blox AG of
Thalwil, Switzerland; u-blox America, Inc. of Reston, VA; u-blox San
Diego, Inc. of San Diego, CA; and Socionext Inc. of Kanagawa, Japan.
Order No. 14 (Oct. 3, 2018), not rev'd in relevant part, Comm'n Notice
(Nov. 1, 2018).
Certain patent claims were subsequently withdrawn and terminated
from the investigation. See Order No. 20 (Jan. 31, 2019), not rev'd,
Comm'n Notice (Feb. 19, 2019); Order No. 48 (June 5, 2019), not rev'd,
Comm'n Notice (June 18, 2019); Order No. 49 (June 13, 2019), not rev'd,
Comm'n Notice (June 28, 2019). The claims still at issue are claims 1-
3, 5, and 9 of the '187 patent; claim 12 of the '104 patent; claims 1-2
and 4-8 of the '752 patent; claims 11 and 20 of the '027 patent; claims
11 and 13 of the '844 patent; and claims 17-18 and 25-26 of the '583
patent. See Comm'n Notice (June 28, 2019).
On November 13, 2019, the ALJ issued the FID finding no violation
of section 337. See FID. The ALJ recommended that, if a violation was
found, then the Commission should issue a limited exclusion order and
cease and desist orders to certain domestic respondents.
On November 26, 2019, Broadcom filed a petition for review of the
FID and the respondents filed a contingent petition for review. On
December 4, 2019, Broadcom and the respondents filed responses to each
other's petitions.
On December 16, 2019, Broadcom filed a submission on the public
interest pursuant to Commission Rule 210.50(a)(4) (19 CFR
210.50(a)(4)). That same day, respondents Toyota Motor Corporation and
its subsidiaries, Renesas Electronics Corporation and Renesas
Electronics America, Inc., and Tier 1 Suppliers (DENSO Corporation,
DENSO International America, Inc., DENSO Manufacturing Tennessee, Inc.,
and DENSO Wireless Systems America, Inc.; DENSO TEN Limited and DENSO
TEN America Limited; Panasonic Corporation and Panasonic Corporation of
North America; Pioneer Corporation and Pioneer Automotive Technologies,
Inc.) filed their submissions on the public interest pursuant to
Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)). On December 18,
2019, two non-parties, Peter Morici and the Reshoring Initiative, filed
submissions on the public interest in response to the Commission's
notice requesting such responses. 84 FR 64104 (Nov. 20, 2019).
Having reviewed the record in this investigation, including the
ALJ's orders and FID, as well as the parties' petitions and responses
thereto, the Commission has determined to review the FID in part, as
follows.
With regard to the '583 patent, the Commission has determined to
review the FID's construction of the term ``at least one processor.''
The Commission has further determined to review the
[[Page 12577]]
FID's infringement and technical prong findings regarding the '583
patent.
With regard to the '752 patent, the Commission has determined to
review the FID's findings as to whether the asserted claims are
invalid. The Commission has further determined to review whether the
accused Pioneer head units meet the limitations of claims 2 and 5.
The Commission has determined not to review the remaining findings
in the FID.
The Commission has also determined to extend the target date for
completion of this investigation until April 30, 2020.
The parties are asked to provide additional briefing on the
following issues regarding the '583 patent and '752 patent, with
appropriate reference to the applicable law and the existing
evidentiary record.
A. With regard to claims 25 and 26 of the '583 patent, if the
Commission determines that the term ``at least one processor'' should
be construed to mean, ``at least one processor separate from the
hardware control block,'' does this modified claim construction affect
any other findings in the FID regarding the '583 patent? If there is a
difference, please explain how it affects the FID's infringement,
domestic industry technical prong, invalidity, or other findings. Is
this modified claim construction supported by the intrinsic and/or
extrinsic evidence?
B. With regard to the '752 patent, discuss whether there is a
difference between the ``data,'' which the FID finds is capable of
being sent over the link disclosed in U.S. Patent No. 6,240,492 to
Foster, et al. (``Foster''), versus the ``data stored at the addresses
in the memory from the lists of addresses in the memory'' as claimed.
If there is a difference, please explain the difference, including how
it affects the validity of claim 8.
C. Discuss whether the link disclosed in Foster (see FID at 94)
would need to be modified in order to meet the claim limitation ``the
memory access unit receives data stored at the addresses in the memory
from the lists of addresses in the memory over said link'' as required
by claim 8 of the '752 patent. If modification is needed, how would
Foster's link need to be modified to meet the claim 8 limitation?
D. Discuss whether the evidence of record supports a finding that
Foster alone renders claims 1, 2, 4, 5, 7, and 8 of the '752 patent
obvious. Further, please discuss Realtime Data, LLC v. Iancu, 912 F.3d
1368, 1373 (Fed. Cir. 2019).
E. Discuss whether the scope of claims 2 and 5 of the '752 patent
covers hardware only or also covers a combination of hardware and
software. Please identify and explain how any controlling Federal
Circuit precedent regarding the infringement standard for apparatus
claims, such as the cases cited in the FID and the parties' briefing,
applies to the evidence in the record in this investigation. In
particular, please discuss at least Telemac Cellular Corp. v. Topp
Telecom, Inc., 247 F.3d 1316 (Fed. Cir. 2001).
The parties are requested to brief only the discrete issues
identified above, with reference to the applicable law and evidentiary
record. The parties are not to brief any other issues on review, which
have already been adequately presented in the parties' previous
filings.
In connection with the final disposition of this investigation, the
statute authorizes issuance of: (1) An exclusion order that could
result in the exclusion of the subject articles from entry into the
United States, and/or (2) 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, Comm'n Op. at 7-10 (December 1994). In addition,
if a party seeks issuance of any cease and desist orders, the written
submissions should address that request in the context of recent
Commission opinions, including those in Certain Arrowheads with
Deploying Blades and Components Thereof and Packaging Therefor, Inv.
No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and Certain Electric Skin
Care Devices, Brushes and Chargers Therefor, and Kits Containing the
Same, Inv. No. 337-TA-959, Comm'n Op. (Feb. 13, 2017). Specifically, if
Complainants seek a cease and desist order against a respondent, the
written submissions should respond to the following requests:
1. Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainants also rely on other significant domestic operations that
could undercut the remedy provided by an exclusion order, please
identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
2. In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
3. Please discuss any other basis upon which the Commission could
enter a cease and desist order.
The statute requires the Commission to consider the effects of any
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or cease-and-desist order 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,
disapprove, or take no action on the Commission's determination. 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: Parties to the investigation are requested to
file submissions on the issues under review. In addition, the parties,
interested government agencies, and any other interested persons are
invited to file written submissions on the issues of remedy, the public
interest, and bonding. Such initial written submissions should include
views on
[[Page 12578]]
the recommended determination by the ALJ on remedy and bonding.
In its initial written submission, complainant is also requested to
identify the form of the remedy sought and to submit proposed remedial
orders for the Commission's consideration. Complainant is also
requested to state the date that the Asserted Patents expire, to
provide the HTSUS subheadings under which the accused products are
imported, and to supply identification information for all known
importers of the products at issue in this investigation. Complainant
is additionally requested to identify and explain, from the record,
articles that are ``components of'' the subject products, and thus
covered by the proposed remedial orders, if imported separately from
the subject products.
Initial written submissions, including proposed remedial orders
must be filed no later than the close of business on March 11, 2020.
Reply submissions must be filed no later than the close of business on
March 18, 2020. No further submissions on any of 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 eight
true paper copies to the Office of the Secretary 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-1119'') in a prominent place on the cover page and/or the
first page. (See Handbook on Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
regarding filing should contact the Secretary at (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 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 (all contract personnel
will sign appropriate nondisclosure agreements) solely for
cybersecurity purposes. All non-confidential written submissions will
be available for public inspection at the Office of the Secretary and
on EDIS.
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: February 26, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-04284 Filed 3-2-20; 8:45 am]
BILLING CODE 7020-02-P