U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review-in-part the final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) in the above-captioned investigation on July 2, 2015. The Commission requests certain briefing from the parties on the issues under review, as indicated in this notice. The Commission also requests briefing from the parties and interested persons on the issues of remedy, the public interest, and bonding.
Lucy Grace D. Noyola, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3438. 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 (
The Commission instituted this investigation on July 14, 2014, based on a complaint filed by Navico, Inc. of Tulsa, Oklahoma, and Navico Holding AS, of Egersund, Norway (collectively, “Navico”). 79
On July 2, 2015, the ALJ issued a final ID finding no violation of section 337 with respect to all three asserted patents. Specifically, the ALJ found that the asserted claims of each patent are not infringed and were not shown to be invalid for anticipation or obviousness. The ALJ found that the economic prong of the domestic industry requirement was not satisfied with respect to the '550 patent. The ALJ also issued a Recommended Determination on Remedy and Bonding (“RD”), recommending, if the Commission finds a section 337 violation, that a limited exclusion order and a cease and desist order should issue and that a bond should be imposed at a reasonable royalty of eight percent for each infringing device imported during the period of presidential review.
On July 20, 2015, Navico, Garmin, and OUII timely filed petitions for review challenging various findings in the final ID. On July 28, 2015, the parties filed responses. On August 5, 2015, Navico and Garmin filed a post-RD statement on the public interest under Commission Rule 210.50(a)(4). The Commission did not receive any post-RD public interest comments from the public.
Having examined the record of this investigation, including the ID, the petitions for review, and the responses thereto, the Commission has determined to review the ALJ's determination of no violation in part. Specifically, the Commission has determined to review (1) the ALJ's construction of the limitation “single linear downscan transducer element” recited in claims 1 and 23 of the '840 patent (and its variants in the '499 and '550 patents); (2) the ALJ's construction of the limitation “combine” (and its variants) recited in claims 1, 24, and 43 of the '499 patent; (3) the ALJ's findings of noninfringement with respect to the three asserted patents; (4) the ALJ's findings of validity with respect to the three asserted patents; and (5) the ALJ's finding regarding the economic prong of the domestic industry requirement with respect to the '550 patent.
The Commission has determined not to review the remaining issues decided in the final ID.
The parties are requested to brief their positions on the issues under review
1. Discuss whether the limitation “single linear downscan transducer element” as recited in claims 1 and 23 of the '840 patent (and its variants in the '499 and '550 patents) should be construed as “a single downwardly pointed transducer that is formed from a single element or a plurality of elements that act together as if they were a single element.” Discuss whether the phrase “act together” in this construction means act simultaneously or in phase. If the variants of the limitation “single linear downscan transducer element” in the '499 and '550 patents should be construed differently, please explain any such differences.
2. Applying the construction in Question No. 1, discuss whether the accused products satisfy the limitation “single linear downscan transducer element.”
3. Applying the construction in Question No. 1, discuss whether the prior art anticipates or renders obvious the asserted claims with respect to the limitation “single linear downscan transducer element.”
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(s) 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
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 U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
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.
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.