[Federal Register: April 4, 2006 (Volume 71, Number 64)]
[Notices]
[Page 16827-16828]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap06-56]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-510]
In the Matter of Systems for Detecting and Removing Viruses or
Worms, Components Thereof, and Products Containing Same; Consolidated
Enforcement and Advisory Opinion Proceeding
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 not to review an initial determination
(``ID'') issued by the presiding administrative law judge (``ALJ'')
terminating the above-captioned proceeding. The Commission has also
determined to rescind the limited exclusion and cease and desist orders
previously issued in the underlying investigation and to vacate a
summary ID previously issued in the proceeding.
FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone 202-205-3104. Copies of the public
version of the ID and all nonconfidential 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. Hearing-impaired persons
are advised that information on this matter can be obtained by
contacting the Commission's TDD terminal on 202-205-1810. General
information concerning the Commission may also be obtained by accessing
its Internet server
[[Page 16828]]
(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.
SUPPLEMENTARY INFORMATION: This investigation was instituted by the
Commission on June 3, 2004, based on a complaint filed by Trend Micro
Inc. (``Trend Micro'') of Cupertino, California under section 337 of
the Tariff Act of 1930, 19 U.S.C. 1337. 69 FR 32044-45 (June 8, 2004).
The complaint alleged violations of section 337 in the importation into
the United States, the sale for importation into the United States, or
the sale within the United States after importation of certain systems
for detecting and removing computer viruses or worms, components
thereof, and products containing same by reason of infringement of
claims 1-22 of U.S. Patent No. 5,623,600 (``the `600 patent''). The
notice of investigation named Fortinet, Inc., of Sunnyvale, California
(``Fortinet'') as the sole respondent.
On May 9, 2005, the ALJ issued his final ID in this investigation
finding a violation of section 337 based on his findings that claims 4,
7, 8, and 11-15 of the `600 patent are not invalid or unenforceable,
and are infringed by respondent's products. On July 8, 2005, the
Commission issued notice that it had determined not to review the ALJ's
final ID on violation, thereby finding a violation of section 337. 70
FR 40731 (July 14, 2005). The Commission also requested briefing on the
issues of remedy, the public interest, and bonding. Id. Submissions on
the issues of remedy, the public interest, and bonding were filed by
all parties. On August 8, 2005, the Commission terminated the
investigation, and issued a limited exclusion order and a cease and
desist order covering respondent's systems for detecting and removing
computer viruses or worms, components thereof, and products containing
same that infringe claims 4, 7, 8, and 11-15 of the `600 patent.
On September 13, 2005, complainant Trend Micro filed a complaint
for enforcement of the Commission's remedial orders. On October 7,
2005, the Commission determined to institute a formal enforcement
proceeding to determine whether Fortinet was in violation of the
Commission's cease and desist order issued in the investigation and
what, if any, enforcement measures were appropriate. 70 FR 76076
(December 22, 2005).
On October 26, 2005, Fortinet filed a request for an advisory
opinion under Commission rule 210.79, 19 CFR 210.79, that would declare
that Fortinet's anti-virus ``FortiGate'' products incorporating
Fortinet's newly redesigned anti-virus software does not infringe
claims 4, 7, 8, and 11-15 of the `600 patent and, therefore, is not
covered by the Commission's cease and desist and limited exclusion
orders, issued on August 8, 2005. On December 16, 2005, the Commission
determined to institute an advisory opinion proceeding to determine
whether Fortinet's redesigned anti-virus software infringes the
asserted claims of the `600 patent.
On January 11, 2006, the presiding ALJ consolidated the enforcement
proceeding and advisory opinion proceeding.
On December 16, 2005, Trend Micro moved for summary determination
that Fortinet had violated sections III(B), III(D), and III(E) of the
cease and desist order. On January 12, 2006, the ALJ issued an ID
(Order No. 26) granting Trend Micro's motion for summary determination
that Fortinet violated section III(B) of the cease and desist order. On
February 9, 2006, the Commission determined not to review Order No. 26.
On December 21, 2005, Fortinet filed a request for an additional
advisory opinion concerning the so-called Clearswift license, which it
later withdrew on February 15, 2006.
On January 27, 2006, Trend Micro and Fortinet entered into a
settlement agreement that resolves their dispute before the Commission.
On February 14, 2006, Trend Micro and Fortinet filed a joint motion to
terminate the consolidated proceedings on the basis of the settlement
agreement. The joint motion included a petition to rescind the limited
exclusion and cease and desist orders issued in the investigation, and
a petition to vacate Order No. 26. On February 27, 2006, the Commission
investigative attorney filed a response in support of the joint motion
to terminate and in support of the joint petitions to rescind the
limited exclusion and cease and desist orders and to vacate Order No.
26.
On February 28, 2006, the ALJ issued an ID (Order No. 31) granting
the joint motion to terminate the consolidated enforcement and advisory
opinion proceedings based on the settlement agreement. The ALJ also
recommended that the Commission rescind the limited exclusion order and
cease and desist order issued in the investigation and vacate Order No.
26. No party petitioned for review of the ID.
The Commission has determined not to review the subject ID granting
the parties' joint motion to terminate the consolidated enforcement and
advisory opinion proceeding. Additionally, the Commission has
determined that the parties' settlement agreement satisfies the
requirement of section 337(k) and Commission rule 210.76(a)(1), 19 CFR
210.76(a)(1), for changed conditions of fact or law and has therefore
issued an order rescinding the limited exclusion order and cease and
desist order previously issued by the Commission in the underlying
investigation. Finally, in view of specific terms in the settlement
agreement, the Commission has determined to vacate Order No. 26.
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 and 210.76 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42 and 210.76).
Issued: March 29, 2006.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 06-3215 Filed 4-3-06; 8:45 am]
BILLING CODE 7020-02-P