[Federal Register Volume 82, Number 157 (Wednesday, August 16, 2017)]
[Notices]
[Pages 38934-38936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17283]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1001]


Certain Digital Video Receivers and Hardware and Software 
Components Thereof; Commission Determination To Review in Part a Final 
Initial Determination Finding a Violation of Section 337; Schedule for 
Written Submissions on the Issues Under Review and on Remedy, the 
Public Interest, and Bonding; Grant of Joint Unopposed Motion for Leave 
To Amend the Complaint and Notice of Investigation To Correct Corporate 
Names

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (the ``Commission'') has determined to review in part the 
final initial determination (``the Final ID'') issued by the presiding 
administrative law judge (``ALJ'') on May 26, 2017, finding a violation 
of section 337 of the Tariff Act of 1930, as amended in connection with 
certain asserted patents. The Commission has also determined to deny 
Respondents' motion requesting leave to file a reply to Rovi's response 
to Respondents' petition for review of the Final ID. The Commission has 
further determined to grant a joint unopposed motion for leave to amend 
the complaint and notice of investigation to correct the corporate 
names of certain respondents.

FOR FURTHER INFORMATION CONTACT: Ron Traud, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-205-3427. 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 https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (``EDIS'') at https://edis.usitc.gov. Hearing-impaired persons are advised that information 
on this matter can be obtained by contacting the Commission's TDD 
terminal, telephone 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on May 26, 2016, based on a complaint filed on behalf of Rovi 
Corporation and Rovi Guides, Inc. (collectively, ``Rovi''), both of San 
Carlos, California. 81 FR 33547-48 (May 26, 2016). The complaint, as 
amended, alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337, by reason of infringement of certain claims 
of U.S. Patent No. 8,006,263 (``the '263 patent''); U.S. Patent No. 
8,578,413 (``the '413 patent''); U.S. Patent No. 8,046,801 (``the '801 
patent''); U.S. Patent No. 8,621,512 (``the '512 patent''); U.S. Patent 
No. 8,768,147 (``the '147 patent''); U.S. Patent No. 8,566,871 (``the 
'871 patent''); and U.S. Patent No. 6,418,556 (``the '556 patent''). 
The complaint further alleges that a domestic industry exists. Id. at 
33548.
    The Commission's notice of investigation named sixteen respondents. 
The respondents are Comcast Corporation of Philadelphia, PA; Comcast 
Cable Communications, LLC of Philadelphia, PA; Comcast Cable 
Communications Management, LLC of Philadelphia, PA; Comcast Business 
Communications, LLC of Philadelphia, PA; Comcast Holdings Corporation 
of Philadelphia, PA; Comcast Shared Services, LLC of Chicago, IL; 
Technicolor SA of Issy-les-Moulineaux, France; Technicolor USA, Inc. of 
Indianapolis, IN; Technicolor Connected Home USA LLC of Indianapolis, 
IN; Pace Ltd. of Saltaire, England (now ARRIS Global Ltd.); Pace 
Americas, LLC of Boca Raton, FL; ARRIS International plc of Suwanee, 
GA; ARRIS Group Inc. of Suwanee, GA; ARRIS Technology, Inc. of Horsham, 
PA; ARRIS Enterprises Inc. of Suwanee, GA (now ARRIS Enterprises LLC); 
and ARRIS Solutions, Inc. of Suwanee, GA. 81 FR at 33548. The Office of 
Unfair Import Investigations is not a party to this investigation. Id.
    Prior to the evidentiary hearing, Rovi withdrew its allegations as 
to certain patent claims. See Notice of Commission Determination Not to 
Review an Initial Determination Granting Complainants' Motion to 
Terminate Certain Asserted Patent Claims from the Investigation (Oct. 
21, 2016); Notice of Commission Determination Not to Review an Initial 
Determination Granting Complainants' Motion to Terminate Certain 
Asserted Patent Claims from the Investigation (Dec. 2, 2016); Notice of 
Commission Determination Not to Review an Initial Determination 
Terminating U.S. Patent No. 8,768,147 from the Investigation (Dec. 28, 
2016). Rovi proceeded at the evidentiary hearing on the following 
patents and claims: Claims 7, 18, and 40 of the '556 patent; claims 1, 
2, 14, and 17 of the '263 patent; claims 1, 5, 10, and 15 of the '801 
patent; claims 12, 17, and 18 of the '871 patent; claims 1, 3, 5, 9, 
10, 14, and 18 of the '413 patent; and claims 1, 10, 13, and 22 of the 
'512 patent.
    On May 26, 2017, the ALJ issued the Final ID, which finds a 
violation of section 337 by the respondents in connection with the 
asserted claims of the '263 and '413 patents. The Final ID finds no 
violation of section 337 in connection with the asserted claims of the 
'556, '801, '871, and '512 patents. The ALJ recommended that, subject 
to any public interest determinations of the Commission, the Commission 
should issue a limited exclusion order directed to the accused 
products, that cease and desist orders issue to the respondents, and 
that the Commission should not require any bond during the Presidential 
review period.
    On June 12, 2017, Rovi and the respondents filed petitions for 
review of the Final ID. The respondents petitioned thirty-two of the 
Final ID's conclusions, and Rovi petitioned seven of the Final ID's 
conclusions. On June 20, 2017, the parties filed responses to the 
petitions for review. On July 11, 2017, Rovi and the respondents filed 
statements on the public interest. The Commission also received 
numerous comments on the public interest from the public.
    On June 26, 2017, Respondents filed a motion requesting leave to 
file a reply to Rovi's response to Respondents' petition for review, 
and on June 29, 2017, Rovi filed a response in opposition to that 
motion. That motion is denied.
    On July 5, 2017, Rovi and the ARRIS respondents filed a Joint 
Unopposed Motion for, and Memorandum in Support of, Leave to Amend the 
Complaint and Notice of Investigation to Correct Corporate Names of Two 
ARRIS Respondents. The motion indicates that ARRIS Enterprises, Inc. 
has changed its name to ARRIS Enterprises LLC and that Pace Ltd. has 
changed its name to ARRIS Global Ltd. That motion is granted.
    On July 25, 2017, Comcast submitted with the Office of the 
Secretary a letter including supplemental disclosure and

[[Page 38935]]

representations. On July 31, 2017, Rovi submitted with the Office of 
the Secretary a response thereto, which asserted that ``this new 
evidence confirms that there is no reason for the Commission to 
review'' certain of the Final ID's conclusions. On August 9, 2017, 
Comcast filed a response to Rovi's submission. The Commission has 
determined to reopen the evidentiary record and accept the supplemental 
disclosure, response thereto, and reply to the response.
    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 the Final ID in part. In 
particular, the Commission has determined to review the following:
    (1) The Final ID's determination that Comcast is an importer of the 
accused products (Issue 1 in Respondents' Petition for Review).
    (2) The Final ID's determination that Comcast has not sold accused 
products in the United States after the importation of those products 
into the United States (the issue discussed in section III of Rovi's 
Petition for Review).
    (3) The Final ID's determination that the accused Legacy products 
are ``articles that infringe'' (Issue 2 in Respondents' Petition for 
Review).
    (4) The issue of whether the X1 products are ``articles that 
infringe'' (Issue 3 in Respondents' Petition for Review), the issue of 
direct infringement of the '263 and '413 patents by the X1 accused 
products (Issue 5 in Respondents' Petition for Review), and the issue 
of ``the nature and scope of the violation found'' (the issue discussed 
in section X of Respondents' Petition for Review).
    (5) The issue of whether Comcast's two alternative designs infringe 
the '263 and '413 patents (Issue 4 in Respondents' Petition for 
Review).
    (6) The Final ID's claim construction of ``cancel a function of the 
second tuner to permit the second tuner to perform the requested tuning 
operation'' in the '512 patent, and the Final ID's infringement 
determinations as to that patent (Issue 26 in Respondents' Petition for 
Review).
    (7) The Final ID's conclusion that the asserted claims of the '512 
patent are invalid as obvious (the issue discussed in section VI.B.4 of 
Rovi's Petition for Review).
    (8) The issue of whether the ARRIS-Rovi Agreement provides a 
defense to the allegations against the ARRIS respondents (the issue 
discussed in section XI of Respondents' Petition for Review).
    (9) The Final ID's conclusion that Rovi did not establish the 
economic prong of the domestic industry requirement based on patent 
licensing (the issue discussed in section IV of Rovi's Petition for 
Review).
    The Commission has determined to not review the remainder of the 
Final ID. The Commission has further determined that Respondents' 
petition of the Final ID's determinations is improper as to the 
following issues: (1) The representative accused X1 products for the 
'263, '413, and '801 patents; (2) the induced infringement of the '263 
and '413 patents; and (3) the eligibility under 35 U.S.C. 101 of the 
'512 patent. See 19 CFR 210.43(b)(2) (``Petitions for review may not 
incorporate statements, issues, or arguments by reference.''). Those 
assignments of error are therefore waived.
    The parties are requested to brief their positions with reference 
to the applicable law and the evidentiary record regarding the 
questions provided below:
    (1) As to whether the Legacy accused products are ``articles that 
infringe'' (Issue 2 in Respondents' Petition for Review):
    Has Rovi shown (or has Comcast conceded) that a Legacy accused 
product that infringes the asserted patents (and if so, which patents) 
has been imported or re-imported by any respondent or that respondent's 
agent(s)?
    (2) As to whether the X1 products are ``articles that infringe'' 
(Issue 3 in Respondents' Petition for Review), the issue of direct 
infringement of the '263 and '413 patents by the X1 accused products 
(Issue 5 in Respondents' Petition for Review), and the issue of ``the 
nature and scope of the violation found'' (the issue discussed in 
section X of Respondents' Petition for Review):
    a. For purposes of giving rise to a section 337 violation and 
whether the X1 STBs are ``articles that infringe,'' is the importation 
of and infringement through the use of the X1 STBs distinguishable from 
the importation of and infringement through the use of the scanners in 
Suprema v. Int'l Trade Comm'n, 796 F.3d 1338 (Fed. Cir. 2015)? For 
example, is Suprema distinguishable because the imported X1 STBs 
require cooperation with hardware (a mobile device and Comcast's 
servers) that is not imported by the respondents for an act of 
infringement to occur? Note that, in Suprema, the imported scanners 
were ``not standalone products,'' but rather, to function, the scanners 
had to ``be connected to a computer, and that computer must have 
custom-developed software installed and running.'' 796 F.3d at 1341-42.
    b. Please discuss any relevant statutory language, legislative 
history, case law, and Commission precedent that does or does not 
support interpreting the language of section 337 such that the X1 STBs 
are ``articles that infringe'' and that a violation arises from the 
importation or sale in the United States after importation of the X1 
STBs.
    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 likely to do so. For 
background, see 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.
    The parties and the public are requested to brief their positions 
regarding the public interest. The Commission is particularly 
interested in responses to the following:
    Should the Commission tailor any remedy to mitigate any harm 
considered by the public interest factors? Please provide any support, 
factual or otherwise, and relate that support to specific public 
interest factors.
    If the Commission orders some form of remedy, the U.S. Trade

[[Page 38936]]

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. 
Complainants are requested to submit proposed remedial orders for the 
Commission's consideration. Complainants are also requested to state 
the date that the patents expire and the HTSUS numbers under which the 
accused products are imported. Complainants are further requested to 
supply the names of known importers of the products at issue in this 
investigation. The written submissions and proposed remedial orders 
must be filed no later than close of business on August 24, 2017. Reply 
submissions must be filed no later than the close of business on August 
31, 2017. No further submissions on any of these issues will be 
permitted unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines stated above and submit 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to section 210.4(f) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-1001'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://www.usitc.gov/secretary/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding 
filing should contact the Secretary ((202) 205-2000).
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. All 
information, including confidential business information and documents 
for which confidential treatment is properly sought, submitted to the 
Commission for purposes of this Investigation may be disclosed to and 
used: (i) By the Commission, its employees and Offices, and contract 
personnel (a) for developing or maintaining the records of this or a 
related proceeding, or (b) in internal investigations, audits, reviews, 
and evaluations relating to the programs, personnel, and operations of 
the Commission including under 5 U.S.C. appendix 3; or (ii) by U.S. 
government employees and contract personnel, solely for cybersecurity 
purposes (all contract personnel will sign appropriate nondisclosure 
agreements). All nonconfidential written submissions will be available 
for public inspection at the Office of the Secretary and on EDIS.
    This action is taken under the authority of 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: August 10, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-17283 Filed 8-15-17; 8:45 am]
BILLING CODE 7020-02-P