[Federal Register Volume 79, Number 204 (Wednesday, October 22, 2014)]
[Notices]
[Pages 63163-63165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25059]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-890]
Certain Sleep-Disordered Breathing Treatment Systems and
Components Thereof; Commission Determination To Review In Part a Final
Initial Determination Finding a Violation of Section 337; Schedule for
Filing Written Submissions on the Issues Under Review and on Remedy,
the Public Interest and Bonding
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 to review in part the final initial
determination (``ID'') issued by the presiding administrative law judge
(``ALJ'') on August 21, 2014, finding a violation of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), in this investigation.
FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-3042. 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 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.
Hearing-impaired persons are advised that information on this matter
can be obtained by contacting the Commission's TDD terminal on (202)
205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on August 23, 2013, based on a complaint filed by ResMed Corporation of
San Diego, California; ResMed Incorporated of San Diego, California;
and ResMed Limited of New South Wales, Australia (collectively,
``ResMed''). 78 FR 52564 (Aug. 23, 2013). The complaint alleged
violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in
the importation into the United States, the sale for importation, and
the sale within the United States after importation of certain sleep-
disordered breathing treatment systems and components thereof that
infringe one or more of claims 32-37, 53, 79, 80, and 88 of U.S. Patent
No. 7,997,267 (``the '267 patent''); claims 1-7 of U.S. Patent No.
7,614,398 (``the '398 patent''); claim 1 of U.S. Patent No. 7,938,116
(``the '116 patent''); claims 30, 37, and 38 of U.S. Patent No.
7,341,060 (the '060 patent); claims 1, 3, 5, 11, 28, 30, 31, and 56 of
U.S. Patent No. 8,312,883 (``the '883 patent''); claims 1, 3, 6, 7, 9,
29, 32, 35, 40, 42, 45, 50, 51, 56, 59, 89, 92, 94, and 96 of U.S.
Patent No. 7,178,527 (the '527 patent); claims 19-24, 26, 29-36, and
39-41 of U.S. Patent No. 7,950,392 (the '392 patent); and claims 13,
15, 16, 26-28, 51, 52, and 55 of U.S. Patent No 7,926,487 (``the '487
patent''). The notice of investigation named the following respondents:
BMC Medical Co., Ltd. of Beijing, China; 3B Medical, Inc. of Lake
Wales, Florida; and 3B Products, L.L.C., of Lake Wales, Florida
(collectively ``Respondents''). The Office of Unfair Import
Investigations (``OUII'') is participating in the investigation.
On January 9, 2014, the ALJ issued an ID granting a motion by
ResMed to amend the complaint and notice of investigation to substitute
U.S. Patent No. RE 44,453 (``the '453 patent'') for the '398 patent and
to terminate the investigation as to the '398 patent. See Order No. 7
(Jan. 9, 2014). The Commission determined not to review the ID. See
Notice of Commission Determination Not to Review an Initial
Determination Granting the Complainants' Motion to Amend the Complaint
and Notice of Investigation (Feb. 10, 2014); 79 FR 9000-01 (Feb. 14,
2014).
On February 24, 2014, the ALJ issued an ID granting a motion by
ResMed to withdraw its allegations with respect to the '116 patent. See
Order No. 11 (Feb. 24, 2014). The Commission determined not to review
the ID. See Notice of Commission Determination Not to Review an Initial
Determination Granting the Complainants' Motion to Partially Terminate
the Investigation by Withdrawing Allegations with Respect to U.S.
Patent No. 7,938,116 (March 11, 2014).
On March 18, 2014, the ALJ granted a motion by ResMed to terminate
the investigation as to claims 26-28 of the '487 Patent. See Order No.
20 (Mar 18, 2012). The Commission determined not to review the ID. See
Notice of Commission Determination Not to Review an Initial
Determination Granting Complainants' Unopposed Motion for Partial
Termination of the Investigation by Withdrawal of Claims 26-28 of U.S.
Patent No. 7,926,487 (Apr. 29, 2014).
On August 21, 2014, the ALJ issued his final ID, finding a
violation of section 337 by Respondents with respect to certain
asserted claims of the '392, '267, '060, '883, '527, and '453 patents.
The ALJ found no violation of section 337 with respect to the asserted
claims of the '487 patent. Specifically, the ALJ found that the
Commission has subject matter jurisdiction, in rem jurisdiction over
the accused products, and in personam jurisdiction over the
respondents. ID at 10-11. The parties stipulated to importation of the
accused products and the ALJ found that the importation requirement of
section 337 (19 U.S.C. 1337(a)(1)(B)) has been satisfied. Id. at 3. The
ALJ found that the accused products infringe asserted claims 1, 9, 32,
89, and 92 of the '527 patent; asserted claims 19, 21, 29, 32, and 36
of the '392 patent; asserted claims 32-34 and 53 of the '267 patent;
asserted claims 30, 37, and 38 of the '060 patent; asserted claims 1,
3, 5, 11, 28, 30, 31, and 56 of the '883 patent; and asserted claim 2
of the '453 patent. See ID at 23, 46, 57-58, 71-78, 95, 99, and 102.
The ALJ found that Respondents failed to establish by clear and
convincing evidence that the asserted claims of the '392, '267, '060,
'883, '527, or claim 2 of the '453 patents were invalid in light of the
cited prior art references. See id. at 25-45, 48-55, 96, and 100. The
ALJ concluded that the accused products satisfy each limitation of
claims 4 and 7 of the '453 patent but found those claims invalid in
view of the prior art. See id. at 103-139. The ALJ also found that the
accused products satisfy each limitation of asserted claims 13, 51, 52,
and 55 of the '487 patent, but found those claims invalid in view of
the prior art. See id. at 78-92. The ALJ further found that ResMed
established the existence of a domestic industry that practices the
asserted patents under 19 U.S.C. 1337(a)(2). See ID at 139-188.
On September 3, 2014, Respondents and the Commission investigative
attorney filed petitions for review of the ID. That same day, ResMed
filed a
[[Page 63164]]
contingent petition for review of the ID. On September 11, 2014, the
parties filed responses to the various petitions and contingent
petition for review.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in part.
Specifically, with respect to the '487 patent, the Commission has
determined to review the ALJ's construction of the claim term ``gas
washout vent'' and construe the limitation to mean ``a vent comprising
a thin air permeable membrane extending across an opening for
exhausting gas to the atmosphere.'' As a result of the new claim
construction, the Commission has determined to review the ALJ's
findings on infringement, invalidity, and the technical prong of the
domestic industry requirement. Regarding the '453 patent, the
Commission has determined to review (1) the ALJ's construction of the
claim limitation ``a retaining mechanism configured to secure the
connecting structure to the CPAP apparatus'' and strike the ID's
requirement that the claimed ``retaining mechanism'' must include an
arrangement of moving parts; (2) the ALJ's finding that the prior art
REMstar device does not anticipate the asserted claims of the '453
patent; and (3) the ALJ's findings on infringement and the technical
prong of the domestic industry requirement. The Commission has also
determined to review the ID's findings and conclusions regarding the
economic prong of the domestic industry requirement under 19 U.S.C.
1337(a)(3)(C).
The parties are requested to brief their positions on the issues
under review with reference to the applicable law and the evidentiary
record. In connection with its review, the Commission is particularly
interested in responses to the following:
The Commission has determined to revise the ALJ's construction
of the claim limitation ``a retaining mechanism'' recited in the
asserted claims of the '453 patent and strike the requirement that
it requires an arrangement of moving parts. That is, the claim
limitation ``a retaining mechanism configured to secure the
connecting structure to the CPAP apparatus'' is construed to mean
``one or more parts for holding in place the CPAP apparatus that is
configured to attach the connecting structure to the CPAP
apparatus.'' See ID at 124. Please discuss whether the REMstar
device anticipates the asserted claims under the revised
construction.
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
Respondents 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.
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. 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 and the IA are also requested to
submit proposed remedial orders for the Commission's consideration and
to provide identification information for all importers of the subject
articles. Complainants are also requested to state the date that the
patents expire and the HTSUS numbers under which the accused products
are imported. The written submissions and proposed remedial orders must
be filed no later than close of business on October 31, 2014. Reply
submissions must be filed no later than the close of business on
November 7, 2014. Such submissions should address the ALJ's recommended
determinations on remedy and bonding. 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 eight
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-890'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.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. A
redacted non-confidential version of the document must also be filed
simultaneously with the any confidential filing. All non-confidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
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.
[[Page 63165]]
Issued: October 16, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-25059 Filed 10-21-14; 8:45 am]
BILLING CODE 7020-02-P