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[Federal Register Volume 75, Number 83 (Friday, April 30, 2010)]
[Notices]
[Pages 22840-22842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10108]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-670]

In the Matter of Certain Adjustable Keyboard Support Systems and 
Components Thereof; Notice of Commission Determination To Review-in-
Part a Final Determination on Violation of Section 337; Schedule for 
Filing Written Submissions on the Issues Under Review and on Remedy, 
the Public Interest, and Bonding

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 a portion of the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on February 23, 2010, regarding whether there is a violation 
of section 337 in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Jia Chen, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street, SW., 
Washington, DC 20436, telephone (202) 708-4737. 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 March 13, 2009 based on a complaint filed by Humanscale Corporation 
(``Humanscale'') of New York, New York, 74 FR 10963 (Mar. 13, 2009). 
The complaint, as amended, named the following two companies as 
respondents: CompX International, Inc., of Dallas, Texas and Waterloo 
Furniture Components Limited, of Ontario, Canada (collectively, 
``CompX''). The complaint alleged 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 adjustable keyboard support systems and 
components thereof that infringe certain claims of U.S. Patent No. 
5,292,097 (``the `097 patent'').
    On February 23, 2010, the ALJ issued a final ID, including his 
recommended determination on remedy and bonding. In his final ID, the 
ALJ found that respondents did not violate section 337 with respect to 
their ``Wedge-Brake'' products because they did not infringe asserted 
independent claim 7 or asserted dependent claim 34. The ALJ found, 
however, that respondents did violate section 337 with respect to their 
``Brake-Shoe'' products because they infringed dependent claim 34. The 
ALJ also found that there was no violation with respect to independent 
claim 7 because respondents established by clear and convincing 
evidence that claim 7 is invalid for obviousness under 35 U.S.C. 103. 
The ALJ further found that respondents have not established any 
intervening rights. Finally, the ALJ found that complainant proved the 
existence of a domestic industry in the United States with respect to 
the `097 patent. Accordingly, the ALJ recommended that the Commission 
issue a limited exclusion order barring entry into the United States of 
infringing adjustable keyboard support systems and components thereof. 
The ALJ further recommended the issuance of a cease and desist order 
against

[[Page 22841]]

respondent Waterloo Furniture Components Ltd. Finally, he recommended 
that the Commission set the bond during the Presidential review period 
at 100 percent of the entered value of the infringing products.
    On March 9, 2010, Humanscale, CompX, and the Commission 
investigative attorney (``IA'') each filed a petition for review of the 
ALJ's final ID. On March 17, 2010, CompX filed a reply to Humanscale's 
petition for review. On the same day, Humanscale filed its consolidated 
reply to CompX's and the IA's petitions for review. Also on the same 
day, the IA filed a consolidated reply to Humanscale's and CompX's 
petitions for review.
    Having examined the record of this investigation, including the 
ALJ's final ID and the submissions of the parties, the Commission has 
determined to review (1) the claim construction of the term 
``frictionally interengagable'' recited in dependent claim 34, (2) 
infringement of claim 34 by the Brake-Shoe products, (2) the priority 
date of claim 34, (3) invalidity for anticipation and obviousness of 
claims 7 and 34, and (4) the defense of intervening rights. The 
economic prong of the domestic industry requirement is already under 
review. No other issues are being reviewed. This constitutes a final 
determination that the Wedge-Brake products do not infringe claims 7 
and 34 and therefore there is no violation with respect to these 
products.
    The parties should brief their positions on the issues on review 
with reference to the applicable law and the evidentiary record. In 
connection with its review, the Commission is particularly interested 
in responses to the following questions:
    1. Assuming that the locking means of claim 34 is not limited to 
the first and second locking members of claim 7, and assuming that 
``frictionally interengagable'' locking means do not include serrated 
locking structures that operate through blocking, what is the proper 
construction of the term ``frictionally interengagable''? Should the 
Commission limit the construction of ``frictionally interengagable'' to 
the V-shaped structures described in the ninth embodiment of the `097 
patent? Please cite to evidence from the record as support.
    2. Applying the construction of ``frictionally interengagable'' 
provided in response to Question 1, do the Brake-Shoe products meet 
this limitation? Please cite to evidence from the record as support.
    3. What, if any, assembly of the keyboard support system does 
Humanscale perform in the United States? Are keyboard support systems 
shipped to customers by Humanscale in an assembled, partially 
assembled, or disassembled state?
    4. If the ``articles protected by the patent'' under 19 U.S.C. 
1337(a)(2) are the entire keyboard support systems, what portion of 
Humanscale's (a) investment in plant and equipment and (b) employment 
of labor and capital in the United States can be attributed to the 
manufacture and processing of these articles? Out of this portion, what 
part is attributed to the process of assembling the keyboard support 
system as opposed to manufacturing the keyboard and mouse support 
platforms?
    5. According to respondents, since 2003, Humanscale has sold a 
certain number of units of ``its allegedly patented mechanisms either 
as a separate article of commerce or as a component of bundled keyboard 
support systems.'' See Reply of Respondents CompX in Response to the 
Commission's Notice to Review an Initial Determination of the Economic 
Prong of the Domestic Industry Requirement, at 6; see also RX-005C. Is 
respondents' statement of the figure accurate based on the record?
    6. Of the total number of units of the patented mechanisms sold by 
Humanscale, how many units were sold individually and how many units 
were sold as components of a bundled keyboard support system?
    7. Sales of the patented mechanism by itself constitute what 
percent of Humanscale's total revenue, and sales of the patented 
mechanism as components of a bundled keyboard support system constitute 
what percentage of the total revenue?
    8. Does section 337(a)(3)(c) allow the Commission to consider 
investments in research and development or engineering related to 
technology not covered by the `097 patent when addressing the domestic 
industry requirement? Are Humanscale's investments in research and 
development or engineering related to the keyboard and mouse support 
platforms investments in the exploitation of the `097 patent? Are 
Humanscale's investments in research and development or engineering 
related to assembling the keyboard and mouse support platforms with the 
patented support means investments in the exploitation of the `097 
patent? What are Humanscale's investments for each?
    9. Under section 337(a)(3)(C), can Humanscale's activities relating 
to its domestically manufactured keyboard and mouse platforms be 
considered ``investment'' in the ``exploitation'' of the `097 patent 
that is not ``engineering, research and development, or licensing''?''
    10. If foot 4 of Kompauer corresponds to the ``second element'' of 
claim 7, does Kompauer disclose the limitation ``pivotally mounted'' 
under the ALJ's construction? Also, does Kompauer disclose each and 
every limitation of claim 7 under the ALJ's construction of the 
disputed claim terms? Please cite to evidence from the record as 
support.
    11. If one or more limitations is not disclosed by Kompauer under 
the ALJ's constructions, does Adam, Holtz, or Hood make up for this 
deficiency under the ALJ's construction? Please cite to evidence from 
the record as support.
    12. If the answer is yes to Question 11, does the record explain 
why a person of ordinary skill in the relevant field would have had a 
reason to combine the elements in the way claim 7 does?
    13. What evidentiary standard should the Commission apply to the 
affirmative defense of intervening rights, clear and convincing 
evidence or a preponderance of the evidence?
    14. Does the evidence of record show that the scope of reexamined 
claim 34 has substantively changed from the original claims of the `097 
patent? Please provide any relevant claim constructions for the 
original claim terms of the `097 patent as well as any relevant 
discussions during the reexamination proceeding regarding amendments to 
these claims.
    15. Does the evidence of record show that the ``specific thing,'' 
i.e., the specific accused products, were ``made, purchased, offered 
[for sale], or used within the United States, or imported into the 
United States'' prior to the grant of the reexamination certificate to 
the `097 patent? 35 U.S.C. 252.
    16. Does the evidence of record show that respondents made 
``substantial preparation[s]'' before the grant of the reexamination 
certificate to ``manufacture, use, offer for sale, or [sell] in the 
United States'' the accused products in their current form? 35 U.S.C. 
252. In addition, does the evidence of record show that respondents 
made investments or commenced business related to the accused products 
prior to the grant of the reexamination certificate? Id.
    17. If the answer to Question 15 or 16 is yes, does the evidence of 
record show that the accused products did not infringe or would not 
have infringed any of the original claims of the `097 patent?
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the

[[Page 22842]]

subject articles from entry into the United States, and/or (2) issue 
one or more cease and desist orders that could result in a 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 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).
    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 United States 
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 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 also requested to state the 
date that the 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 May 
10, 2010. Reply submissions must be filed no later than the close of 
business on May 17, 2010. The written submissions must be no longer 
than 60 pages and the reply submissions must be no longer than 30 
pages. 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 
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 19 CFR 210.6. 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 and 210.50 of the Commission's Rules of Practice 
and Procedure (19 CFR 210.42-46 and 210.50).

    Issued: April 26, 2010.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-10108 Filed 4-29-10; 8:45 am]
BILLING CODE 7020-02-P
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