[Federal Register Volume 74, Number 109 (Tuesday, June 9, 2009)]
[Notices]
[Pages 27345-27346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13381]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-677]


In the Matter of Certain Course Management System Software 
Products; Notice of Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Institution of investigation pursuant to 19 U.S.C. 1337.

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SUMMARY: Notice is hereby given that a complaint was filed with the 
U.S. International Trade Commission on April 17, 2009, under section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of 
Blackboard Inc. of Washington, DC. Supplements to the complaint were 
filed on May 6 and May 14, 2009. The complaint, as supplemented, 
alleges violations of section 337 based upon the importation into the 
United States, the sale for importation, and the sale within the United 
States after importation of certain course management system software 
products that infringe certain claims of U.S. Patent No. 6,988,138. The 
complaint, as supplemented, further alleges that an industry in the 
United States exists as required by subsection (a)(2) of section 337.
    The complainant requests that the Commission institute an 
investigation and, after the investigation, issue exclusion orders and 
cease and desist orders.

ADDRESSES: The complaint and supplements, except for any confidential 
information contained therein, are 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., Room 
112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired 
individuals are advised that information on this matter can be obtained 
by contacting the Commission's TDD terminal on 202-205-1810. Persons 
with mobility impairments who will need special assistance in gaining 
access to the Commission should contact the Office of the Secretary at 
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.

FOR FURTHER INFORMATION CONTACT: Mareesa A. Frederick, Esq., Office of 
Unfair Import Investigations, U.S. International Trade Commission, 
telephone (202) 205-2055.
    Authority: The authority for institution of this investigation is 
contained in section 337 of the Tariff Act of 1930, as amended, and in 
section 210.10 of the Commission's Rules of Practice and Procedure, 19 
CFR 210.10 (2008).
    Scope of Investigation: Having considered the complaint, the U.S.

[[Page 27346]]

International Trade Commission, on June 3, 2009, ordered that--
    (1) Pursuant to subsection (b) of section 337 of the Tariff Act of 
1930, as amended, an investigation be instituted to determine whether 
there is a violation of subsection (a)(1)(B) 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 course 
management system software products that infringe one or more of claims 
36-44 of U.S. Patent No. 6,988,138, and whether an industry in the 
United States exists as required by subsection (a)(2) of section 337; 
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    \1\ The Commission has determined not to institute an 
investigation with respect to claims 1-35 as these claims are the 
subject of a valid and final judgment of invalidity issued by the 
district court for the Eastern District of Texas.
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    (2) For the purpose of the investigation so instituted, the 
following is hereby named as a party upon which this notice of 
investigation shall be served:
    (a) The complainant is--Blackboard Inc., 650 Massachusetts Avenue, 
NW., Washington, DC 20001.
    (b) The respondent is the following entity alleged to be in 
violation of section 337, and is the party upon which the complaint is 
to be served: Desire2Learn Incorporated, 305 King Street West, Suite 
200, Kitchener, Ontario, Canada N2G 1B9.
    (c) The Commission investigative attorney, party to this 
investigation, is Mareesa A. Frederick, Esq., Office of Unfair Import 
Investigations, U.S. International Trade Commission, 500 E Street, SW., 
Room 401, Washington, DC 20436; and
    (3) For the investigation so instituted, Paul J. Luckern, Chief 
Administrative Law Judge, U.S. International Trade Commission, shall 
designate the presiding Administrative Law Judge.
    The Commission notes that the asserted patent is currently involved 
in a reexamination proceeding at the U.S. Patent and Trademark Office 
and an appellate proceeding before the Court of Appeals for the Federal 
Circuit. In instituting this investigation the Commission has not made 
any determination as to whether a stay is warranted. However, the 
presiding administrative law judge may wish to consider whether a stay 
is warranted at an early date in this proceeding. Any such decision 
regarding the motion to stay the investigation should be issued in the 
form of an initial determination (ID). The ID will become the 
Commission's final determination 45 days after the date of service of 
the ID unless the Commission determines to review the ID. Any petitions 
for review of the ID must be filed within ten (10) days after service 
thereof. Any review will be conducted in accordance with Commission 
Rules 210.43, 210.44 and 210.45, 19 CFR 210.43, 210.44, and 210.45.
    The instant complaint also raises questions relating to, inter 
alia, (1) the scope of coverage under Section 337, and (2) possible 
claim preclusion with respect to claims 36-44 of the asserted `138 
patent in light of prior district court contempt proceeding and a 
pending appeal before the Federal Circuit. As with other investigations 
commenced pursuant to Section 337, the institution of the requested 
investigation by the Commission does not constitute a determination on 
the merits of these or other issues that may arise in the 
investigation.
    Responses to the complaint and the notice of investigation must be 
submitted by the named respondent in accordance with section 210.13 of 
the Commission's Rules of Practice and Procedure, 19 CFR 210.13. 
Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be 
considered by the Commission if received not later than 20 days after 
the date of service by the Commission of the complaint and the notice 
of investigation. Extensions of time for submitting a response to the 
complaint and the notice of investigation will not be granted unless 
good cause therefor is shown.
    Failure of a respondent to file a timely response to each 
allegation in the complaint and in this notice may be deemed to 
constitute a waiver of the right to appear and contest the allegations 
of the complaint and this notice, and to authorize the administrative 
law judge and the Commission, without further notice to the respondent, 
to find the facts to be as alleged in the complaint and this notice and 
to enter an initial determination and a final determination containing 
such findings, and may result in the issuance of an exclusion order or 
a cease and desist order or both directed against the respondent.

    By order of the Commission.

    Issued: June 3, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-13381 Filed 6-8-09; 8:45 am]
BILLING CODE 7020-02-P