[Federal Register Volume 79, Number 208 (Tuesday, October 28, 2014)]
[Notices]
[Pages 64214-64215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25551]


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INTERNATIONAL TRADE COMMISSION

[Investigation Nos. 337-TA-867/861 (Advisory Opinion Proceeding)]


Certain Cases for Portable Electronic Devices; Institution of an 
Advisory Opinion Proceeding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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[[Page 64215]]

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to institute an advisory opinion proceeding 
in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3042. 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 Inv. No. 337-TA-
861 on November 16, 2012, based on a complaint filed by Speculative 
Product Design, LLC of Mountain View, California (``Speck''). 77 FR 
68828 (Nov. 16, 2012). 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 cases for portable electronic 
devices by reason of infringement of various claims of United States 
Patent No. 8,204,561 (``the '561 patent''). The complaint named several 
respondents.
    The Commission instituted Inv. No. 337-TA-867 on January 31, 2013, 
based on a complaint filed by Speck. 78 FR 6834 (Jan. 31, 2013). That 
complaint also 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 cases for portable electronic devices by reason 
of infringement of various claims of the '561 patent. The complaint 
named several respondents. On January 31, 2013, the Commission 
consolidated the two investigations. Id.
    All the participating respondents were terminated from the 
consolidated investigations as a result of settlement agreements, 
consent motion stipulations, or withdrawal of the complaint as to them. 
A number of the named respondents defaulted. On February 21, 2014, the 
ALJ issued his final initial determination finding a violation of 
section 337 as to claims 4, 5, 9, and 11 of the '561 patent by the 
defaulting respondents and recommended issuance of a general exclusion 
order (``GEO''). Based on evidence of a pattern of violation and 
difficulty ascertaining the source of the infringing produces, the 
Commission agreed with the ALJ and issued a GEO directed to cases for 
portable electronic devices that infringe one of claims 4, 5, 9, and 11 
of the '561 patent.
    On September 4, 2014, Otter Products, LLC of Fort Collins, Colorado 
(``Otter'') filed a request with the Commission asking for institution 
of an advisory opinion proceeding to declare that its Symmetry Series 
Products are not covered by the general exclusion order. Specifically, 
Otter requests that the proceeding consider: (1) Whether, under section 
337 and the Administrative Procedure Act, the GEO should apply to 
Otter's imports absent a determination by the Commission in a violation 
or enforcement proceeding that Otter's products infringe; (2) whether 
Otter's products are covered by one or more of claims 4, 5, 9, and 11 
of the '561 patent; and (3) that the Commission consider the validity 
of the '561 patent as part of this proceeding. On October 1, 2014, 
complainant Speck filed an opposition to Otter's request.
    The Commission has determined that Otter's request complies with 
the requirements for institution of an advisory opinion proceeding 
under Commission Rule 210.79 to determine whether Otter's Symmetry 
Series products infringe one or more of claims 4, 5, 9, and 11 of the 
'561 patent. The Commission has determined to reject Otter's argument 
that the GEO should apply to only products that were specifically 
before the Commission. See Hyundai Elecs. Indus. Co. v. U.S. Int'l 
Trade Comm'n, 899 F.2d 1204, 1210 (Fed. Cir. 1990) (internal citations 
omitted) (``the Commission can impose a general exclusion order that 
binds parties and non-parties alike and effectively shifts to would-be 
importers of potentially infringing articles, as a condition of entry, 
the burden of establishing noninfringement.''); Multi Level Touch 
Control Lighting Switches, USITC Inv. No. 337-TA-225, 1987 ITC Lexis 
274, *6 (Jul. 16, 1987) (``It is in the nature of general exclusion 
orders that they may apply to articles not before the Commission during 
the investigation.'') The Commission has also determined to continue 
its longstanding practice of not considering the validity of the 
underlying intellectual property in advisory proceedings. See Certain 
Rare Earth Magnets and Magnetic Materials and Articles Containing Same, 
Inv. No. 337-TA-413, Denial of Request for Advisory Opinion at 1 (Nov. 
1, 2010); Multi-Level Touch Control Lighting Switches, Inv. No. 337-TA-
225 at *5-6.
    Accordingly, the Commission has determined to institute an advisory 
opinion proceeding to determine only whether Otter's Symmetry Series 
products infringe one or more of claims 4, 5, 9, and 11 of the '561 
patent. The Commission has determined to refer Otter's request to the 
Office of Unfair Import Investigations (``OUII''). The parties will 
furnish OUII with information as requested, and OUII shall investigate 
and issue a report to the Commission within ninety (90) days of the 
date of publication of this notice in the Federal Register. The 
Commission will issue an advisory opinion within 45 days of receipt of 
OUII's written report. The following entities are named as parties to 
the proceeding: (1) Complainant Speck and (2) Otter.
    The authority for the Commission's determination is contained in 
sections 335 and 337 of the Tariff Act of 1930, as amended (19 U.S.C. 
1335, 1337), and in part 210 of the Commission's Rules of Practice and 
Procedure (19 CFR part 210).

     Issued: October 22, 2014.

    By order of the Commission.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-25551 Filed 10-27-14; 8:45 am]
BILLING CODE 7020-02-P