[Federal Register Volume 87, Number 88 (Friday, May 6, 2022)]
[Notices]
[Pages 27182-27183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09818]



[[Page 27182]]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1227]


Certain Routers, Access Points, Controllers, Network Management 
Devices, Other Networking Products, and Hardware and Software 
Components Thereof; Commission Determination To Review in Part a Final 
Initial Determination Finding No Violation of Section 337 and, on 
Review, To Affirm the Finding of No Violation; Termination of the 
Investigation

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 a final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on December 7, 2021, finding no violation of section 337 in 
the above-referenced investigation and, on review, to affirm the 
finding of no violation. The investigation is terminated.

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) 205-2392. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
<a href="/cdn-cgi/l/email-protection#591c1d100a6a113c3529192c2a302d3a773e362f"><span class="__cf_email__" data-cfemail="7a3f3e332949321f160a3a0f09130e19541d150c">[email protected]</span></a>. General information concerning the Commission may 
also be obtained by accessing its internet server at https://www.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: On October 28, 2020, the Commission 
instituted this investigation under section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337, based on a complaint filed by Q3 
Networking LLC of Frisco, Texas (``Q3''). 85 FR 68367-68 (Oct. 28, 
2020). The complaint alleged a violation of section 337 in the 
importation into the United States, the sale for importation, or the 
sale within the United States after importation of certain routers, 
access points, controllers, network management devices, other 
networking products, and hardware and software components thereof by 
reason of infringement of certain claims of U.S. Patent Nos. 7,609,677 
(``the '677 patent''); 7,895,305 (``the '305 patent''); 8,797,853 
(``the '853 patent''); and 7,457,627 (``the '627 patent''). The 
complaint also alleged the existence of a domestic industry. The notice 
of investigation named as respondents: CommScope Holding Company, Inc. 
of Hickory, North Carolina; CommScope, Inc. of Hickory, North Carolina; 
Arris US Holdings, Inc. of Suwanee, Georgia; Ruckus Wireless, Inc. of 
Sunnyvale, California; Hewlett Packard Enterprise Co. of Palo Alto, 
California; Aruba Networks, Inc. of Santa Clara, California; and 
Netgear, Inc. of San Jose, California (collectively, ``Respondents''). 
Id. at 68368. The Commission's Office of Unfair Import Investigations 
was not named as a party in this investigation. Id.
    Subsequently, the Commission permitted complainant to amend the 
complaint and notice of investigation to correct the corporate name of 
respondent Aruba Networks, Inc. to respondent Aruba Networks, LLC. 
Order 15 (Mar. 5, 2021), unreviewed by Notice (Mar. 22, 2021). The 
Commission also partially terminated the investigation by withdrawal of 
the '627 patent. Order No. 26 (July 1, 2021), unreviewed by Notice 
(Jul. 26, 2021).
    On December 7, 2021, the ALJ issued the final ID in this 
investigation, holding that no violation of section 337 has occurred in 
the importation into the United States, the sale for importation, or 
the sale within the United States after importation, of certain 
routers, access points, controllers, network management devices, other 
networking products, and hardware and software components thereof by 
reason of infringement of claims 1-6 of the '677 patent; claims 1 and 8 
of the '305 patent; and claims 1-9 of the '853 patent.\1\
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    \1\ By failing to assert that Respondents infringe claims 2-3, 
5, 6, 9, and 11-14 of the '305 patent and claim 8 of the '677 patent 
in its prehearing and posthearing briefs Complainant abandoned the 
above-referenced claims under Ground Rule 7(c).
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    The ID found that the accused products do not infringe the asserted 
claims of any of the asserted patents. The ID also found that the 
domestic industry requirement (both technical and economic prongs) has 
not been satisfied with respect to the '853, '305, and '677 patents. 
The ID further found that it has not been shown by clear and convincing 
evidence that the asserted claims of the '853, '305, and '677 patents 
are invalid.
    On December 20, 2021, Complainant Q3 filed a petition for review of 
various portions of the ID. Also, on December 20, 2021, Respondents 
filed a contingent petition for review of various portions of the ID. 
On December 28, 2021, both Respondents and Complainant filed replies in 
response to the petition for review and the contingent petition for 
review, respectively.
    Having examined the record in this investigation, including the 
final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review in part the ID (1) with respect to 
the economic prong of the domestic industry requirement, and on review, 
to take no position, and (2) in order to correct certain non-
substantive citation errors pertaining to the ID's technical prong 
findings regarding the '305 patent, and on review, to correct those 
errors. Specifically, the Commission cites to the following questions 
and answers from RX-1210C on pages 166-73 of the ID: (i) Q/A 17 instead 
of Q/A 16 in the first full paragraph on page 166; (ii) Q/A 32 instead 
of Q/A 28 on lines 3 and 10 in the first full paragraph on page 167; 
(iii) Q/A 24 instead of Q/A 22 in the first paragraph on page 168; (iv) 
Q/A 25 instead of Q/A 23 in the second paragraph on page 168; (v) Q/A 
26 instead of Q/A 24 in the first paragraph on page 169; (vi) Q/A 29 
instead of Q/A 28 in the second paragraph on page 169; (vii) Q/A 21-27 
& 29 instead of Q/A 19-25 on page 169; (viii) Q/A 33-35 instead of Q/A 
29-32 and Q/A 35 instead of Q/A 31 in the first paragraph on page 170 
of the ID; (ix) Q/A 35 instead of Q/A 29-32 in the second paragraph on 
page 170 of the ID; (x) Q/A 35-36 instead of Q/A 32 in the first 
paragraph on page 171 of the ID; (xi) Q/A 37 instead of Q/A 33 in the 
second paragraph on page 171 of the ID, in the first full paragraph on 
page 172 of the ID, and in the first paragraph of page 173; and (xii) 
Q/A 38-41 instead of Q/A 34-37 and Q/A 39 instead of Q/A 35 in the last 
paragraph on page 173. The Commission has determined not to review the 
remainder of the ID, including the ID's finding of no violation of 
section 337 in this investigation.<SUP>2 3</SUP>
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    \2\ With respect to the '853 patent, Vice Chair Stayin would 
review the ID's claim construction of the term ``overall 
transmission capacity,'' and find the term should be given its plain 
and ordinary meaning. Nonetheless, Vice Chair Stayin agrees that 
even under this revised construction the accused products do not 
infringe the asserted claims of the '853 patent, and the domestic 
industry products do not practice the claims of the '853 patent, for 
many of the reasons articulated in the ID. Accordingly, he joins the 
Commission's decision to affirm the ID's findings of no violation as 
to the '853 patent.
    \3\ Chair Kearns and Vice Chair Stayin note that they do not 
read anything in the ID (see, e.g., ID at 207 and 260-61) as 
foreclosing a finding of a violation of section 337, under 
appropriate facts, based on direct infringement by a respondent 
where the accused article is combined post-importation with other 
articles to infringe an asserted patent claim.

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[[Page 27183]]

    The investigation is hereby terminated.
    The Commission vote for this determination took place on May 3, 
2022.
    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: May 3, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-09818 Filed 5-5-22; 8:45 am]
BILLING CODE 7020-02-P


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