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, 63163-63165 [2014-25059]
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Federal Register / Vol. 79, No. 204 / Wednesday, October 22, 2014 / Notices
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Dated: September 23, 2014.
Deborah Rocque,
Acting Regional Director, Northeast Region.
[FR Doc. 2014–25098 Filed 10–21–14; 8:45 am]
BILLING CODE 4310–55–P
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
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
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.
SUMMARY:
mstockstill on DSK4VPTVN1PROD with NOTICES
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 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 on (202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
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18:22 Oct 21, 2014
Jkt 235001
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
PO 00000
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Fmt 4703
Sfmt 4703
63163
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
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Federal Register / Vol. 79, No. 204 / Wednesday, October 22, 2014 / Notices
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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
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18:22 Oct 21, 2014
Jkt 235001
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
PO 00000
Frm 00087
Fmt 4703
Sfmt 4703
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, https://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 nonconfidential version of the document
must also be filed simultaneously with
the any confidential filing. All nonconfidential 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.
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Federal Register / Vol. 79, No. 204 / Wednesday, October 22, 2014 / Notices
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
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–919]
Certain Archery Products and Related
Marketing Materials; Commission
Determination Not To Review an Initial
Determination Finding Respondent
Ningbo Topoint Outdoor Sports Co.,
Ltd., To Be in Default; Request for
Written Submissions on Remedy, the
Public Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined not to
review an initial determination (‘‘ID’’)
(Order No. 11) issued by the presiding
administrative law judge (‘‘ALJ’’) on
September 16, 2014, finding the sole
respondent, Ningbo Topoint Outdoor
Sports Co., Ltd. (‘‘Ningbo’’), to be in
default. Accordingly, the Commission
requests written submissions, under the
schedule set forth below, on remedy,
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT:
Robert Needham, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
708–5468. 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 (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 on (202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on June 16, 2014, based on a complaint
filed by Bear Archery, Inc. and SOP
Services, Inc. (‘‘Complainants’’). 79 FR
34356. The complaint alleges violations
mstockstill on DSK4VPTVN1PROD with NOTICES
SUMMARY:
VerDate Sep<11>2014
18:22 Oct 21, 2014
Jkt 235001
of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337 (‘‘section
337’’), in the importation into the
United States, the sale for importation,
and the sale within the United States
after importation of certain archery
products and related marketing
materials by reason of infringement of
certain claims of U.S. Patent No.
RE38,096; U.S. Patent No. 6,978,775;
U.S. Patent No. 7,226,375; U.S.
Trademark Registration No. 2,501,255;
and U.S. Trademark Registration No.
3,312,392. Id. The complaint further
alleges the existence of a domestic
industry. Id. The Commission’s notice
of investigation named Ningbo as the
respondent, and indicated that the
Office of Unfair Import Investigations is
participating in this investigation. Id.
On June 11, 2014, the Commission
attempted to serve Ningbo with the
complaint and notice of investigation,
but the notice was returned as
undeliverable mail on July 23, 2014. On
July 24, 2014, Complainants sought
leave to attempt to effect personal
service on Ningbo, and the leave was
granted on July 30, 2014. On July 31,
2014, Complainants filed proof that they
had served Ningbo with the complaint
and notice of investigation.
On August 19, 2014, Complainants
moved for an order directing Ningbo to
show cause why it should not be found
in default for its failure to respond to
the complaint and notice of
investigation, and, upon failure to show
cause, for the issuance of an initial
determination finding Ningbo in
default. On August 20, 2014,
Complainants filed a letter indicating
that they did not seek a general
exclusion order in the event of a default.
On August 21, 2014, the Commission
Investigative Attorney (‘‘IA’’) filed a
response supporting Complainants’
motion.
On September 2, 2014, the ALJ
granted the motion and ordered Ningbo
to show cause why it should not be
found in default. See Order No. 10. No
response to Order No. 10 was filed.
On September 16, 2014, the ALJ
issued the subject ID finding Ningbo in
default under Commission Rule
210.16(a)(1). See Order No. 11. No
petitions for review of the ID were filed.
The Commission has determined not to
review the subject ID.
Ningbo is the sole respondent in this
investigation. Section 337(g)(1) and
Commission Rule 210.16(c) authorize
the Commission to order relief against a
respondent found in default, unless,
after considering the public interest, it
finds that such relief should not issue.
Complainants indicated that they were
not seeking a general exclusion order
PO 00000
Frm 00088
Fmt 4703
Sfmt 4703
63165
pursuant to Commission Rule
210.16(c)(2).
In connection with the final
disposition of this investigation, the
Commission may: (1) issue an order that
could result in the exclusion of articles
manufactured or imported by the
defaulting respondent; and/or (2) issue
a cease and desist order that could
result in the defaulting 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, Comm’n Op. at 7–10
(December 1994).
If the Commission contemplates some
form of remedy, it must consider the
effects of that remedy upon the public
interest. The factors that the
Commission will consider include the
effect that the exclusion order and/or
cease and desists 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: Parties to the
investigation, interested government
agencies, and any other interested
parties are encouraged to file written
E:\FR\FM\22OCN1.SGM
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]]>Agencies
[Federal Register Volume 79, Number 204 (Wednesday, October 22, 2014)]
[Notices]
[Pages 63163-63165]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-25059]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 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 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, https://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
