• HQ H067500
• Aug 05, 2009

• Type : 19 U.S.C. § 1337; Unfair Competition • HTSUS :

ENF-4-02-OT:RR:BSTC:IPR H067500 AEB

Eric S. Namrow, Esq.
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113

RE: U.S. International Trade Commission Investigation No. 337-TA-617; Digital Televisions

Dear Mr. Namrow:

This is in reply to your April 13, 2009, letter, in which you request on behalf of Amtran Logistics, Inc., TPV International (USA), Inc., and Envision Peripherals, Inc., an administrative ruling, pursuant to 19 CFR Part 177, as to whether certain digital televisions (“DTVs”) are excluded from entry into the United States pursuant to the Limited Exclusion Order issued by the U.S. International Trade Commission (ITC) in Investigation No. 337-TA-617. You submitted three semiconductor chip samples for use with the DTVs in your ruling request.

FACTS:

The semiconductor chip samples (“samples”) you submitted are manufactured by Broadcom Corporation (“Broadcom”), MediaTek, Inc. (“MediaTek”), and Zoran Corporation (“Zoran”). The devices are identified as Model BCM35243 (Broadcom), Model MT5382PTR (MediaTek), and Model ZR39775HGCF-B (Zoran). Images of the chips appear below.




 
  MEDIATEK
 With respect to how DTV’s function, a DTV signal travels in a collection of digital packets called a transport stream (“TS”). Initial Determination, Certain Digital Televisions and Certain Products Containing Same and Methods of Using Same, Investigation No. 337-TA-617 (November 17, 2008). (“Initial Determination”) at 6. Certain packets from the TS allow a DTV to map other incoming packets to the desired television program. Initial Determination at 8. These mapping packets include information on the clock reference (timing), stream type (video, audio, etc.), program number (individual television program number), and elementary packet identification (individual packet number). Initial Determination at 9, 41. The Federal Communications Commission (“FCC”) now requires all broadcasters to comply with the ATSC A/65 standard by digitally sending this mapping information in virtual channel tables (“VCTs”). ATSC Standard: Program and System Information Protocol for Terrestrial Broadcast and Cable (Revision C) § 1.1.1 (January 2, 2006). The VCT stores the clock reference, stream type, and elementary packet id in a table portion called the Service Location Descriptor (“SLD”). ATSC Table 6.29. The program number is in the main portion of the VCT. Id. at Table 6.4. A DTV can assemble a whole VCT (from VCT packets) to select other packets from the TS to form television programs. Id. at § 5. Instead of assembling an entire VCT, a DTV can also form a television program by combining the program association tables (“PATs”) and program map tables (“PMTs”) – both from the TS. MPEG Systems Standard, ISO/IEC JTC1/SC29/WG11, N0721 rev., §§ 2.4.4.3, 2.4.4.5, Table 2-2.5 (June 10, 1994).

The above-referenced samples as received by the Intellectual Property Rights and Restricted Merchandise Branch (“IPR Branch”) were attached to printed circuit boards as depicted in the above images. Originally, the IPR Branch sent the samples to the CBP Office of Laboratory and Scientific Services (“CBP OLSS”) to test how the samples processed DTV signals. To aid CBP OLSS in testing the samples, you provided protocols, source codes, and a DVD instructional video. In the DVD, your expert (Dr. Cliff Reader) demonstrated how each of the samples processed SLD information while inside DTVs. The DVD demonstrations included – for each sample - both a test display on the DTV screen, and a test that used JTAG and UART. The DTV on-screen test displayed counts of the number of VCTs and SLDs that the DTV receives and outputs through its demultiplexer (or “demux”). The JTAG and UART tests monitored the demux output with built-in testing and debugging facilities inside the sample hardware, supported by general maintenance and testing software. To perform the JTAG and UART tests, your expert set up external hardware contacts in test points on the DTVs for connection to notebook computers (“laptops”). The laptops were installed with software that interacted with those test points in the hardware and printed out the results from the DTVs into the laptop screens. The laptop screens displayed the SLD information being replaced with zeros as the samples received a DTV signal.

CBP OLSS lacked certain hardware and software for testing the samples according to the procedures in the protocols which your expert demonstrated on the DVD. Also, CBP OLSS’s attempt to locate another – independent – facility to test the samples failed. Consequently, the IPR Branch requested that you furnish CBP with the names of independent companies that had the technical capability to test the samples and lacked any connection to the named parties in this case (Investigation No. 337-TA-617). You provided two names: Semiconductor Insights (“SI”) and Global Intellectual Strategies (“GIS”). The IPR Branch contacted CBP OLSS requesting guidance as to whether SI or GIS had the technical capability to perform the necessary test. CBP OLSS reported that SI had the necessary equipment according to its website. To accept SI’s report, the IPR Branch required two conditions: SI’s certification that SI had no connection to any party in Investigation No. 337-TA-617, and CBP OLSS’s verification that the report matched the testing from the protocols and DVD you submitted. SI provided the certification, and CBP OLSS verified SI’s report.

SI tested duplicate samples to determine how the samples processed DTV signals. The duplicate samples tested were the exact same in all respects as the samples submitted to the IPR Branch, but the duplicate samples were located inside DTVs during the testing. It was necessary for the duplicate samples to be tested while inside DTVs because the duplicate samples needed to receive a DTV signal. The testing conducted on the samples indicated that they do not assemble a VCT with packets that correspond to any SLD information. Instead, each sample identified the VCT SLD packets before VCT assembly and inserted stuffing bits (i.e., zeros) to replace those packets. The zeros filled in the space that the SLD packet took up and conveyed no data to the sample. To prove that the samples replaced the SLD information with zeros, a different testing method was used for each chip model and each method is explained below.

In all of the samples tested, a laptop screen displayed how the samples used the Program System Information Protocol (“PSIP”) in the ATSC A/65 standard to detect and replace the SLD information with zeros. The PSIP defines a number of attributes for the digital packets in the TS that compose the data tables (including the VCT) used by the DTV. ATSC §§ 1.1.1, 4. All the PSIP tables are transmitted in TS packets that share the common unique packet identifier (“PID”) “1FFB.” ATSC § 5. Within these TS packets, data for the VCT is identified using the table identifier “C8.” ATSC § 6.3.1. Thus, [ ]. Initial Determination at 56. Within the VCT, SLD data is identified with the descriptor tag “A1,” and the length of each descriptor is also described. ATSC § 6.9.5. Accordingly, unique identifiers exist for the DTV’s to locate specifically the SLD and discard the data carried by the SLD while the SLD is still in packetized form – before assembly into the VCT. In the DVD, your expert explained how the ATSC A/65 Table 6.4 for the VCT (below) could be used to see where this SLD information should be as it comes through the demux. Specifically, starting with the initial value of C8 (which describes the VCT table), there are 42 bytes (326 bits – highlighted in yellow below) of fixed-length data before the descriptors (including the SLD). With this knowledge, an observer can find where the start of the descriptor should be on the laptop screen as well as the zeros that have replaced this information. The zeros should take up 17 bytes (136 bits – highlighted in orange) for the rest of the VCT and the SLD information.




To test the Broadcom chip, SI executed a protocol that is detailed in its lab report. According to the lab report, an antenna was first connected to the cable/antenna input of a Vizio television. Next, a UART Tool Board (depicted below) was connected to the DTVs test socket (also below) and to a universal serial bus (USB) port of a lap top.



VIZIO FRONT VIZIO BACK CONNECTIONS




UART CONNECTIONS FOR BROADCOM CHIP

The DTV was then turned on, and a digital channel was selected. The laptop ran the “Tera Term Web 3.1” program, and the serial port was confiqured to “COM 4.” After several messages appeared in the Tera Term window, the command “pvct1” was entered, and the DTV was turned off. The laptop’s result appears below. The laptop screen shows a VCT label and matches the entries in the ATSC A/65C standard (from Table 6.4 above). For each digital channel’s VCT, the first byte on the screen is a hexadecimal (“hex”) value of “C8” which is the table ID for a VCT. Every two characters on the screen represent a single byte (or eight bits). The 41st and 42nd bytes are “FC11” which corresponds to the reserved six bits with a value of “1” followed by the 10-bit descriptor length which is “11” in this case. The next 17 bytes – corresponding to the descriptor information including the SLD – are all “00” making the descriptor value all zeros. After the 17 bytes of “00”, there are 31 bytes to match information for the second sub-channel, followed by another 17 bytes of “00”. This second string of “00” corresponds to where the next sub-channel’s descriptor information was replaced with zero values.


LAPTOP SCREEN DISPLAY FOR BROADCOM CHIP

To test the Zoran chip, SI also executed a protocol that is detailed in its lab report. According to the lab report, an antenna was first connected to the cable/antenna input of an Insignia television. Next, a JTAG emulator was connected to the test socket of the TV and to a USB port of a laptop as shown below.



INSIGNIA FRONT INSIGNIA ID TAG BACK



JTAG FRONT JTAG BACK


JTAG CONNECTIONS IN ZORAN CHIP The DTV was then turned on and a digital channel was selected. On the laptop, the “OCD Commander” program (“OCD”) was started and the “Auto Status Check” option was checked in the OCD’s “Default” menu. “Device 2” was typed in the command prompt, so that clicking “Halt” would pause the DTV, while clicking “Go” would resume the DTV screen. The “Halt” button in the OCD window was clicked, followed by the commands, “SBR 1 0x8339A704” (for the first break point) then “SBR 2 0x8339A9D4” (for the second breakpoint) in the OCD window. “Go” was next clicked in the OCD window. After switching the DTV to a new minor channel, the command “reg” was typed into the OCD window (to get a register readout from the JTAG port). Next, the command “byte 0x839EC8A8 0x100” was typed in the OCD window. This command displayed 256 address locations after the point selected. The results are shown below.


LAPTOP SCREEN DISPLAY FOR ZORAN CHIP

The laptop screen shows a VCT label and matches the entries in the ATSC A/65C standard (from Table 6.4 above). For each digital channel’s VCT, the first byte on the screen is a hex value of “C8” which is the table ID for a VCT. Every two characters on the screen represent a single byte (or eight bits). The 41st and 42nd bytes are “FC11” which corresponds to the reserved six bits with a value of “1” followed by the 10-bit descriptor length which is “11” in this case. After FC11 are bytes started by “800F” which is a stuffing descriptor of length 16 bytes. The stuffing descriptors literally replace the SLD. Following the stuffing descriptor, there are 31 bytes which match the information for the second sub-channel. The second sub-channel again has a descriptor length of “11” and is followed by “800F” which is a stuffing descriptor of length 16 bytes. The descriptor for the third sub-channel has a length of “2B” and includes two descriptors. The first descriptor has an “A0” tag which is an extended name descriptor. The second descriptor is a stuffing descriptor (since it has a tag of 80) 16 bytes long. As in the Broadcom chip, the SLD data in the Zoran chip is replaced with zeros.

To test the MediaTek chip, SI executed a protocol that is detailed in its lab report. According to the lab report, an antenna was first connected to the cable/antenna input of a Vizio television. Next, a Lauderbach TRACE32 ICE (below) was connected to the DTV’s main board and to a USB port of the laptop with MediaTek software. Then, the RS232 was connected to the USB interface board to the main board of the DTV and to a USB port of a laptop with MediaTek software (also below).


VIZIO FRONT


VIZIO BACK LABEL


LAUDERBACH TRACE32 ICE POWER DEBUG INTERFACE (Front)


LAUDERBACH TRACE32 ICE POWER DEBUG INTERFACE (Back)


JTAG CONNECTIONS IN MEDIATEK CHIP


RS232 TO USB INTERFACE BOARD

The DTV was turned on and a digital channel was selected. The “Super Terminal” program was run on the laptop, and the command ‘b.so –w0 –p0’ was entered on the prompt. That command caused the DTV image to freeze. The “Trace32” program was next run on the laptop. Then, the batch file ‘ICE watch.cmm’ was run using the “Batchfile” option on the “File” menu of Trace32. Three windows appeared on Trace32 after running the batch file. The data in the third row of the first column in the top window was ‘00000028’ which indicated that the TVCT was in window 2 (the middle of the 3 windows) of Trace32. Window 2 was selected and “C8” was searched for with the “Find” function in Trace32’s “Edit” menu. A close-up of the result of the search is shown below. The data “FC11” occurs 39 bytes after C8 which is followed by 17 bytes of “00” data. As with the Broadcom and Zoran chips, the SLD information in the MediaTek chip has been replaced with zeros.


LAPTOP SCREEN DISPLAY FOR MEDIATEK CHIP

ISSUE:

The issue presented is whether the above-referenced semiconductor chip samples assemble channel map information within the scope of the ITC’s limited exclusion order in Investigation No. 337-TA-617 such that DTVs that contain such semiconductor chips are excluded from entry for consumption into the United States.

LAW AND ANALYSIS:

Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), prohibits, inter alia, the importation, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee of articles that infringe a valid and enforceable U.S. patent. 19 U.S.C. § 1337(a)(1)(B)(i). The ITC has authority to investigate alleged violations of Section 337. 19 U.S.C. § 1337(b). If the ITC determines that there has been a violation of Section 337, it shall, subject to certain potential exceptions, direct that the articles concerned be excluded from entry into the United States and, accordingly, notify the Secretary of the Treasury who shall, through its proper officers,  refuse such entry. 19 U.S.C. § 1337. See also, 19 CFR § 12.39.

In ITC Investigation No. 337-TA-617, the ITC determined that certain DTVs infringed claims 1, 5, and 23 of U.S. Patent No. 6,115,074 (“’074 patent”) owned by Funai Electric Co. Ltd. (“Funai”). Therefore, the ITC ordered that DTV devices infringing claims 1, 5, and 23 of the ‘074 patent, manufactured and/or imported by or on behalf of Vizio, AmTran, SBC, Taiwan Kolin, Proview International, Proview Shenzhen, Proview Technology, TPV Technology, TPV USA, Top Victory, and Envision or any affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns, are excluded from entry for consumption into the United States, and notified CBP accordingly. Limited Exclusion Order, Certain Digital Televisions and Certain Products Containing Same and Methods of Using Same, Investigation No. 337-TA-617 (April 10, 2009).

To warrant a finding of patent infringement, an accused article must meet each limitation of any of the claims of a patent either literally or under the doctrine of equivalents. Charles Greiner & Co. v. Mari Med Mfg., Inc., 962 F.2d 1031, 1034 (Fed. Cir. 1992). In order to find literal infringement, every limitation of the claim must be found exactly in the subject article. Amhil Enters, Ltd. v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed. Cir. 1996); Southwall Techs, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995). The U.S. Supreme Court has described the essential inquiry of the doctrine of equivalents analysis in terms of whether the accused product or process contains elements identical or equivalent to each claimed element of the patented invention. Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 40 (1997). If an element is missing or not satisfied, infringement cannot be found under the doctrine of equivalents as a matter of law. See, e.g., Wright Medical, 122 F.3d 1440, 1444 (Fed. Cir. 1997); Dolly, Inc. v. Spalding & Evenflo Cos., Inc., 16 F.3d 394, 398 (Fed. Cir. 1994); London v. Carson Pirie Scott & Co., 946 F.2d 1534, 1538-39 (Fed. Cir. 1991); Becton Dickinson and Co. v. C.R. Bard, Inc., 922 F.2d 792, 798 (Fed. Cir. 1990).

Claims 1, 5, and 23 of the ‘074 patent cover the following areas:

1) Apparatus for decoding a datastream of MPEG compatible packetized program information containing program map information to provide decoded program data, comprising: means for identifying channel map information conveyed within said packetized program information; and

means for assembling said identified information to form a channel map for identifying said individual packetized data streams constituting said program, wherein said channel map information replicates information conveyed in said MPEG compatible program map information and said replicated information associates a broadcast channel with packet identifiers used to identify individual packetized data streams that constitute a program transmitted on said broadcast channel. (Emphasis added.)

5) Apparatus according to claim 1, including means for tuning to receive said program transmitted on said broadcast channel using said channel map information for acquisition of said program.

23) A method for decoding MPEG compatible packetized program information containing program map information to provide decoded program data, comprising the steps of:

identifying channel map information conveyed within said packetized program information; and

assembling said identified information to form a channel map suitable for use in identifying said individual packetized data streams constituting said program, wherein

said channel map information replicates information conveyed in said MPEG compatible program map information and said replicated information associates packet identifiers with individual packetized data streams that constitute a program transmitted on a broadcast channel. (Emphasis added.)

In his Initial Determination, the ITC Administrative Law Judge (ALJ) construed the ‘074 patent’s claim terms, including “channel map information.” Initial Determination at 41-42. The channel map information is the data that allows the DTV to find specific programs that are broadcast on specific channels. Id. at 40. According to the ALJ, the channel map information must include all the following elements: (i) the program number, (ii) program clock reference, (iii) stream type, and (iv) elementary packet identifier information. Id. at 41-42.

The ALJ also construed claims 1 and 23 of the ‘074 to require at least assembly of the channel map information. Id. at 48-50. The ‘074 patent’s assembly structure is processor “60”, highlighted in orange below. Initial Determination at 48. Processor “60” assembles the VCT from program specific information packets leaving the demux (processor “22”, highlighted in yellow below). U.S. Patent No. 6,115,074 col.3 l.55-58, col.4 l.3-7 (filed Apr. 9, 1998). Accordingly, if a DTV does not allow channel map information packets to leave the demux, then that DTV has no channel map information to assemble which means that DTV cannot infringe the ‘074 patent.


As indicated above, the limited exclusion order in this case covers DTVs. The FCC now requires television broadcasts to comply with the ATSC A/65 Standard for digital broadcasting which sends a VCT with channel map information in digital packets as part of a digital broadcast. The ‘074 patent requires the assembly of a VCT that includes channel map information. The ALJ held that at a minimum this channel map information must include the program number, program clock reference, stream type, and elementary packet identifier.

The samples tested above replaced the VCT SLD packets containing three of the four ALJ-required channel map elements (program clock reference, stream type, and elementary packet identifier) with zeros in the demux. The UART/JTAG testing confirmed these facts through a laptop display showing those zeros (and the stuffing descriptors in the case of the Zoran chip) leaving the demux. As a result, none of the DTVs could assemble the entirety of the channel map information as required by the ‘074 patent. Accordingly, it is our position that these three semiconductor chip samples do not assemble channel map information within the scope of the ITC’s limited exclusion order in ITC Investigation No. 337-TA-617.

HOLDING:

In conformity with the foregoing, the above-referenced three semiconductor chip samples submitted by or on behalf of Amtran Logistics, Inc., TPV International (USA), Inc., and Envision Peripherals, Inc., are not subject to Exclusion Order 337-TA-617. Therefore, DTVs that contain the above-referenced three semiconductor chips identified as Model BCM35243 (Broadcom), Model MT5382PTR (MediaTek), Model ZR39775HGCF-B (Zoran), and all functional equivalents of the aforementioned models, may be entered for consumption into the United States.

Sincerely,

Richard F. Chovanec, Acting Chief
Intellectual Property Rights & Restricted Merchandise Branch