[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Notices]
[Pages 11748-11750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5934]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-629]


In the Matter of Certain Silicon Microphone Packages and Products 
Containing the Same; Notice of Commission Determination to Review a 
Final Initial Determination in Part and Set a Schedule for Filing 
Written Submissions On the Issues Under Review and On Remedy, the 
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 has determined to review in part the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on January 12, 2009, in the above-captioned investigation. 
The Commission has also determined to extend the target date by 30 
days.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3116. 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 
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 14, 2008, based on the complaint of Knowles Electronics, LLC 
of Itasca, Illinois (``Knowles''). 73 FR 2277 (Jan. 14, 2008). The 
complaint alleges 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 silicon microphone packages or products 
containing same by reason of

[[Page 11749]]

infringement of one or more of claims 1 and 2 of U.S. Patent No. 
6,781,231 (``the `231 patent''), and claims 1, 2, 9, 10, 15, 17, 20, 
28, and 29 of U.S. Patent No. 7,242,089 (``the `089 patent''). The 
respondent is MEMS Technology Berhad of Malaysia (``MemsTech'').
    The evidentiary hearing in this investigation was held on September 
22-25, 2008. On January 12, 2009, the ALJ issued an Initial 
Determination on Violation of Section 337 and Recommended Determination 
on Remedy and Bond, finding a violation of section 337. All parties to 
this investigation, including the Commission investigative attorney, 
filed timely petitions for review of various portions of the final ID, 
as well as timely responses to the petitions.
    Having examined the record in this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review:
    (1) With respect to the `231 patent:
    (a) The ALJ's determination that MemsTech's accused products 
infringe the `231 patent;
    (b) The ALJ's determination that U.S. Patent No. 4,533,795 to 
Baumhauer, Jr. et al. (``Baumhauer'') does not anticipate claims 1 and 
2 of the `231 patent;
    (c) The ALJ's determination that claims 1 and 2 of the `231 patent 
are not rendered obvious in view of U.S. Patent No. 5,459,368 to Onishi 
et al. (``Onishi'');
    (d) The ALJ's determination that U.S. Patent No. 6,522,762 to 
Mullenborn et al. (``Mullenborn'') taken in combination with Baumhauer 
does not render claim 1 obvious;
    (e) The ALJ's determination that the master's thesis by David 
Patrick Arnold entitled ``A MEMS-Based Directional Acoustic Array for 
Aeroacoustic Measurements'' (``Arnold'') taken in combination with 
Baumhauer does not render claims 1 and 2 obvious.
    (2) With respect to the `089 patent:
    (a) The ALJ's construction of the limitation ``electrically 
coupled'' in the asserted claims of the `089 patent;
    (b) The ALJ's construction of the limitation ``volume'' in the 
asserted claims of the `089 patent;
    (c) The ALJ's determination that the MemsTech's accused products 
infringe the `089 patent;
    (d) The ALJ's determination that Knowles SiSonic products practice 
claim 1 of the `089 patent;
    (e) The ALJ's determination that Mullenborn does not anticipate 
claims 1, 2, 9, 15, 17, 20, 28, and 29 of the `089 patent;
    (f) The ALJ's determination that claims 1, 2, 9, 15, 17, 20, 28, 
and 29 of the `089 patent are not invalid as obvious in view of: (i) 
Baumhauer alone; (ii) Baumhauer in combination with an article by Kress 
et al. entitled ``Integrated Silicon Pressure Sensor for Automotive 
Applications with Electronic Trimming,'' SAE Document 950533 (1995) 
(``Kress''); (iii) Baumhauer in combination with U.S. Patent No. 
4,277,814 to Giachino et al. (``Giachino''); (iv) Onishi;
    (g) The ALJ's determination that evidence shows that the commercial 
success of the SiSonic products is attributable to the `089 patent.
    The Commission has determined not to review the remainder of the 
final ID. The Commission also has determined to extend the target date 
for completion of the subject investigation by thirty (30) days from 
Tuesday, April 14, 2009, to Thursday, May 14, 2009.
    On review, the Commission requests briefing on the above-listed 
issues based on the evidentiary record. The Commission is particularly 
interested in responses to the following questions:
    (1) With respect to the `231 patent:
    (a) Did the ALJ rely on any exhibits that were not admitted into 
evidence in reaching his determination that the accused MemsTech 
products infringe the `231 patent? Please provide the citations in the 
ALJ's final ID. Is there evidence in the record that sufficiently 
supports the ALJ's infringement determination without taking into 
account exhibits that were not admitted into evidence and relied on by 
the ALJ?
    (b) Provided the ALJ's finding that ``[t]he substrate in Baumhauer 
is not exclusive to the transducer, and it extends beyond cover,'' ID 
at 65, cannot be used to support his conclusion that ``Baumhauer does 
not disclose a `microelectromechanical system package,' '' see id., is 
there record evidence to support the ALJ's above conclusion that is 
consistent with (i) the ALJ's findings (and the infringement analysis 
that led to such findings) that the accused MemsTech's products are 
microelectromechanical system packages and that they literally infringe 
claims 1 and 2 of the `231 patent, see ID at 178, 183-84; and (ii) the 
ALJ's construction of claims 1 and 2 (and specifically, the preambles 
of claims 1 and 2), see ID at 13-16.
    (c) Does the record evidence, particularly including RX-363; RX-
045; RX-046; RX-33, show, clearly and convincingly, that it would have 
been obvious to one skilled in the art to modify the teachings of 
Onishi to arrive at the inventions claimed in claims 1 and 2 of the 
`231 patent? Does the record evidence show that Onishi teaches away 
from the `231 patent?
    (d) Does the record evidence show, clearly and convincingly, that 
it would have been obvious to one skilled in the art to modify 
Mullenborn in view of Baumhauer to arrive at the invention claimed in 
claim 1 of the `231 patent?
    (e) Does the record evidence show, clearly and convincingly, that 
it would have been obvious to one skilled in the art to modify Arnold 
in view of Baumhauer to arrive at the inventions claimed in claims 1 
and 2 of the `231 patent?
    (2) With respect to the `089 patent:
    (a) (i) What record evidence, particularly including the 
prosecution history, supports a finding that the term ``electrically 
coupled'' in claim 1 of the `089 patent does not include an indirect 
electrical connection?
    (ii) In distinguishing Cote during prosecution, the inventor made 
the following assertions: ``Cote does not teach or suggest that the 
transducer is mounted to a surface. As such, Cote cannot teach the 
further claimed electrical connection between the transducer and the at 
least one patterned conductive layer formed on the surface to which it 
is attached. In fact, Cote fails to teach or suggest the formation of a 
patterned conductive layer associated with any part of the described 
electret microphone.'' (RX-255 at 206-207)
    Based on record evidence, how should the following sentence quoted 
above be interpreted: ``As such, Cote cannot teach the further claimed 
electrical connection between the transducer and the at least one 
patterned conductive layer formed on the surface to which it is 
attached''? Does it (I) indicate that there is no electrical connection 
because the transducer is not mounted on the surface, (II) simply 
restate that the transducer is not mounted to a surface as mentioned in 
the previous sentence, or (III) refer to the fact that there is no 
patterned conductive layer as mentioned in the subsequent sentence? 
What are the implications of each interpretation to the question of 
whether the inventor distinguished his invention based on the absence 
of a direct electrical connection in Cote?
    (iii) In answering the previous questions, what is the significance 
of the USPTO's statement that ``the prior art of record does not teach 
or suggest the combination of the surface being formed with at least 
one patterned conductive layer, the patterned conductive layer being 
electrically coupled to the transducer''? RX-255 at 366.
    (b) Is the ALJ's construction of the term ``volume'' supported by 
the Federal Circuit precedent, including the

[[Page 11750]]

Federal Circuit decision in C.R. Bard, Inc. v. U.S. Surgical Corp., 388 
F.3d 858, 864 (Fed. Cir. 2004)?
    (c) (i) Does the record evidence support the ALJ's finding that 
Mullenborn discloses ``what can arguably be described as a package,'' 
ID at 78?
    (ii) Does the record evidence support the ALJ's finding that 
Mullenborn does not meet the limitation ``chamber being defined by the 
first member and the second member,'' ID at 79?
    (d) Provided the ALJ's finding that ``[Baumhauer] does not disclose 
first or second level connections and it fails to disclose a package 
substrate,'' ID at 132, cannot be used to support his conclusion that 
``Baumhauer fails to teach or suggest a package,'' see id., is there 
record evidence to support the ALJ's above conclusion that is 
consistent with (i) the ALJ's finding (and the infringement analysis 
that lead to such a finding) that the accused MemsTech's products are 
surface mountable packages and that they literally infringe claim 1 of 
the '089 patent, see ID at 197-98, and (ii) the ALJ's construction of 
claim 1 (and specifically, the preamble of claim 1), see ID at 27-29.
    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 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 are 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 
(Dec. 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 President has 60 
days to approve or disapprove the Commission's action. 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.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review. The submissions 
should be concise and thoroughly referenced to the record in this 
investigation. 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. Such submissions should address the recommended determination 
by the ALJ on remedy and bonding. Complainant and the Commission 
investigative attorney are also requested to submit proposed remedial 
orders for the Commission's consideration. Complainant is further 
requested to provide the expiration dates of the asserted patents at 
issue in this investigation and state the HTSUS number under which the 
accused articles are imported. The written submissions and proposed 
remedial orders must be filed no later than the close of business on 
March 27, 2009. Reply submissions must be filed no later than the close 
of business on April 3, 2009. No further submissions on these issues 
will be permitted unless otherwise ordered by the Commission.
    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 
(or portion thereof) 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 section 201.6 of the Commission's Rules of Practice and 
Procedure, 19 CFR 201.6. 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 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-.46).

    By order of the Commission.

    Issued: March 13, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-5934 Filed 3-19-09; 8:45 am]
BILLING CODE 7020-02-P