Federal Register / Vol. 83, No. 175 / Monday, September 10, 2018 / Notices 45679 

Pursuant to section 331 of the Tariff Act, 

19 U.S.C. 1331, the Chairman of the 

Commission has the authority to 

‘‘appoint and fix the compensation of 

such employees of the Commission as 

he deems necessary,’’ including ALJs. 

19 U.S.C. 1331(a)(1)(A)(1). Any such 

decision by the Chairman, however, is 

‘‘subject to disapproval by a majority 

vote of all the commissioners in office.’’ 

Id. § 1331(a)(1)(C). The hiring of the 

Commission’s ALJs has been in 

conformity with Titles 5 and 19 of the 

U.S. Code, as well as with such 

regulations as were then in force by the 

Office of Personnel Management, 5 CFR 

930.201–.211. 

The Appointments Clause of the 

Constitution, art. II, § 2, cl. 2, provides, 

in relevant part, that Congress may vest 

the appointment of inferior officers ‘‘in 

the Heads of Departments.’’ In the past 

two years, there have been legal 

developments concerning the 

Appointments Clause. These 

developments have included the 2016 

decision of the U.S. Court of Appeals for 

the Tenth Circuit finding ALJs of the 

Securities and Exchange Commission 

(‘‘SEC’’) to be ‘‘inferior officers’’ for the 

purpose of the Appointments Clause, 

Bandimere v. SEC, 844 F.3d 1168, 1188 

(10th Cir. 2016), reh’g en banc denied 

(May 3, 2017). In 2018, the Supreme 

Court decided that the ALJs of the SEC 

are inferior officers whose appointments 

were to be made by SEC and not by the 

SEC’s staff. Lucia v. SEC, 138 S. Ct. 

2044, 2053–54 (2018); see Free 

Enterprise Fund v. Public Company 

Accounting Oversight Bd., 561 U.S. 477, 

512 (2010). 

The hiring of the Commission’s ALJs 

is, and has been, consistent with the 

Appointments Clause and with the 

Commission’s organic statute. 

Throughout at least the period of time 

between the hiring of the most-senior 

ALJ at the Commission (Chief Judge 

Bullock) until the present, the 

appointment of ALJs has been made by 

the Chairman, and no Commissioner has 

initiated a vote to disapprove the 

appointment of an ALJ, as is the 

Commissioner’s right under 19 U.S.C. 

1331(a)(1)(C). Out of an abundance of 

caution, on March 14 and 15, 2018, the 

Commission (then-Chairman 

Schmidtlein, joined by then-Vice 

Chairman Johanson, and Commissioners 

Williamson and Broadbent) voted, by 

notational voting, to ratify the earlier 

appointments of Judges Bullock, Lord, 

McNamara, Pender and Shaw. Also out 

of an abundance of caution, on February 

8, 2018, the Commission voted, by 

notational voting, in connection with 

Judge Cheney’s original appointment. 

Accordingly, the Commission’s ALJs 

have all been appointed and/or ratified 

in conformance with the Constitution, 

and all applicable statutes and 

regulations. In addition, by this Notice, 

the Commission reiterates its approval 

of the appointments of Judges Bullock, 

Cheney, Lord, McNamara, Pender, and 

Shaw as its own under the Constitution. 

By order of the Commission. 

Issued: September 5, 2018. 

Lisa R. Barton, 

Secretary to the Commission. 

[FR Doc. 2018–19584 Filed 9–7–18; 8:45 am] 

BILLING CODE 7020–02–P 

INTERNATIONAL TRADE 

COMMISSION 

[USITC SE–18–041] 

Government in the Sunshine Act 

Meeting Notice 

AGENCY HOLDING THE MEETING: United 

States International Trade Commission. 

TIME AND DATE: September 12, 2018 at 

11:00 a.m. 

PLACE: Room 101, 500 E Street SW, 

Washington, DC 20436, Telephone: 

(202) 205–2000. 

STATUS: Open to the public. 

MATTERS TO BE CONSIDERED: 

1. Agendas for future meetings: None. 

2. Minutes. 

3. Ratification List. 

4. Vote on Inv. No. 731–TA–1189 

(Review)(Large Power Transformers 

from Korea). The Commission is 

currently scheduled to complete 

and file its determination and views 

of the Commission by September 

26, 2018. 

5. Outstanding action jackets: None. 

In accordance with Commission 

policy, subject matter listed above, not 

disposed of at the scheduled meeting, 

may be carried over to the agenda of the 

following meeting. 

By order of the Commission. 

Issued: September 5, 2018. 

William Bishop, 

Supervisory Hearings and Information 

Officer. 

[FR Doc. 2018–19703 Filed 9–6–18; 4:15 pm] 

BILLING CODE 7020–02–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation No. 337–TA–1053] 

Certain Two-Way Radio Equipment and 

Systems, Related Software and 

Components Thereof; Commission 

Determination To Review in Part an 

Initial Determination Finding a 

Violation of Section 337 and Order 

Nos. 38 and 47; To Request Written 

Submissions on Remedy, Bonding, 

and the Public Interest; and To Extend 

the Target Date 

AGENCY: U.S. International Trade 

Commission. 

ACTION: Notice. 

SUMMARY: Notice is hereby given that 

the U.S. International Trade 

Commission has determined to reviewin-part a final initial determination 

(‘‘ID’’) of the presiding administrative 

law judge (‘‘ALJ’’) finding a violation of 

section 337 and the ALJ’s Order Nos. 38 

and 47. The Commission is requesting 

written submissions on remedy, 

bonding, and the public interest 

including submissions in response to 

certain questions directed to the public 

interest. The Commission has also 

extended the target date for completion 

of the investigation to November 16, 

2018. 

FOR FURTHER INFORMATION 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. 

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 alleged 

violations of section 337 of the Tariff 

Act of 1930, as amended, 19 U.S.C. 


daltland on DSKBBV9HB2PROD with NOTICES
45680 Federal Register / Vol. 83, No. 175 / Monday, September 10, 2018 / Notices 

1337, by reason of infringement of 

certain claims of the ’284 patent and the 

following U.S. Patent Nos.: 7,369,869 

(‘‘the ’869 patent’’); 7,729,701 (‘‘the ’701 

patent’’); 8,279,991 (‘‘the ’991 patent’’); 

9,099,972; 8,032,169; and 6,591,111. 

The Commission’s notice of 

investigation named Hytera 

Communications Corp. Ltd. of 

Shenzhen, China; Hytera America, Inc. 

of Miramar, Florida; and Hytera 

Communications America (West), Inc. of 

Irvine, California as respondents 

(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 the ALJ’s 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 the ALJ’s 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 the ALJ’s 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 the ALJ’s 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 the ALJ’s 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 the ALJ’s 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 the ALJ’s 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 the 

ALJ’s 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 grantedin-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 Hytera. 

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 No. 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 the general 

public. 

Having examined the record of this 

investigation, including the ID, related 

Orders including Order Nos. 38 and 47, 

the parties’ petitions for review, and the 

responses thereto, the Commission has 

determined to review-in-part the final 

ID and Order Nos. 38 and 47. 

Specifically, the Commission has 

determined to review (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 has determined not to 

review the remainder of the final ID. 

The Commission has also extended the 

target date for completion of the 

investigation to November 16, 2018. 

On review, with respect to violation, 

the parties are requested to submit 

briefing limited to the following issues: 

(1) Are the redesigned products that 

allegedly infringe the ’284 patent the 

same as the redesigned products alleged 

to infringe the ’701, ’869, and ’991 

patents? If not, how do the products 

differ? 

(2) Please discuss which specific 

redesigned products are sufficiently 

fixed and final to be properly within the 

scope of the investigation, and whether 

each such product has been imported 

into the United States. See, e.g., Certain 

Multiple Mode Outdoor Grills and Parts 

Thereof, Inv. No. 337–TA–895, Comm’n 

Op. at 50–55 (Feb. 3, 2015). 

(3) Discuss the extent to which Hytera 

produced information regarding each 

such redesign prior to the close of fact 

discovery. 

(4) As to each asserted patent, discuss 

whether Motorola presented evidence at 

the hearing to prove infringement of 

each redesigned product. 

In addressing these issues, the parties 

are requested to make specific reference 

to the evidentiary record and to cite 

relevant authority. 

In connection with the final 

disposition of this investigation, the 

Commission may (1) issue an order that 

results 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 respective respondent being 

required to cease and desist from 

engaging in unfair acts in the 

importation and sale of such articles. 


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Federal Register / Vol. 83, No. 175 / Monday, September 10, 2018 / Notices 45681 

1All contract personnel will sign appropriate 

nondisclosure agreements. 

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). 

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. 

When 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 section 337(j), 19 U.S.C. 1337(j) and 

the 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. 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, interested government 

agencies, and any other interested 

parties are encouraged to file written 

submissions on the issues of remedy, 

the public interest, and bonding, and 

such submissions should address the 

recommended determination by the ALJ 

on remedy and bonding. Complainant is 

also requested to submit proposed 

remedial orders for the Commission’s 

consideration. Complainant is also 

requested to: (1) State the dates that the 

patents at issue expire and the HTSUS 

numbers under which the accused 

articles are imported; and (2) supply a 

list of known importers of the accused 

products. Also specifically, with respect 

to the public interest, the Commission 

requests briefing on the following 

issues: 

(1) Please comment on the availability 

of similar products from suppliers other 

than Hytera or Motorola (including 

market share of these other sources) that 

can perform ‘‘mission-critical’’ two-way 

radio communication. 

(2) With respect to (1), please 

comment on whether such alternative 

suppliers also provide the same features 

that Hytera’s products provide (e.g., 

unique pseudo trunking, noise 

cancellation, ‘‘man down’’ feature, 

‘‘lone worker’’ feature) as well as 

whether Motorola’s products provide 

the same features as Hytera’s products. 

Also please address the interoperability 

of various suppliers’ products in twoway radio communication systems. 

(3) Please comment on the extent to 

which a distributor of Motorola two-way 

radio communication products must 

offer only Motorola products, or 

whether such a distributor can also offer 

two-way radio communication 

equipment and products from other 

suppliers. 

(4) Please comment on whether any 

potential exclusion order and/or cease 

and desist order should include a 

repair/service exception regarding 

service to existing Hytera two-way radio 

communications products that were 

sold prior to the effective date of any 

such order. If you advocate for such an 

exception, please address the 

appropriate parameters of such an 

exception, and provide proposed 

language. 

The written submissions and 

proposed remedial orders must be filed 

no later than September 18, 2018. Reply 

submissions must be filed no later than 

September 25, 2018. No further 

submissions on these issues will be 

permitted unless otherwise ordered by 

the Commission. In addressing the 

issues on violation, the parties are 

limited to 25 pages for the initial 

submission and 15 pages for the reply 

submission. 

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 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–1053’’) 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 of 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 nonconfidential version of the document 

must also be filed simultaneously with 

any confidential filing. 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,1 solely for cybersecurity 

purposes. All non-confidential 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 part 

210 of the Commission’s Rules of 

Practice and Procedure, 19 CFR part 

210. 

By order of the Commission. 

Issued: September 4, 2018. 

Lisa R. Barton, 

Secretary to the Commission. 

[FR Doc. 2018–19499 Filed 9–7–18; 8:45 am] 

BILLING CODE 7020–02–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation No. 337–TA–1131] 

Certain Wireless Mesh Networking 

Products and Related Components 

Thereof; Institution of Investigation 

AGENCY: U.S. International Trade 

Commission. 

ACTION: Notice. 


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