Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof; Notice of the Commission's Final Determination; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 78905-78907 [2014-30584]
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Federal Register / Vol. 79, No. 250 / Wednesday, December 31, 2014 / Notices
electronically on or before the deadlines
stated above and submit 8 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 docket number (‘‘Docket No. 3048’’)
in a prominent place on the cover page
and/or the first page. (See Handbook for
Electronic Filing Procedures, Electronic
Filing Procedures). 4 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. All nonconfidential
written submissions will be available for
public inspection at the Office of the
Secretary and on EDIS. 5
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and of sections 201.10 and 210.8(c) of
the Commission’s Rules of Practice and
Procedure (19 CFR 201.10, 210.8(c)).
Issued: December 23, 2014.
By order of the Commission.
Jennifer Rohrbach,
Supervisory Attorney.
[FR Doc. 2014–30567 Filed 12–30–14; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–931]
Certain Formatted Magnetic Data
Storage Tapes and Cartridges
Containing Same; Notice of
Commission Determination Not To
Review an Initial Determination To
Amend the Complaint and Notice of
Investigation
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’’)
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SUMMARY:
4 Handbook for Electronic Filing Procedures:
https://www.usitc.gov/secretary/fed_reg_notices/
rules/handbook_on_electronic_filing.pdf.
5 Electronic Document Information System
(EDIS): https://edis.usitc.gov.
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(Order No. 7) to amend the complaint
and notice of investigation to add as
respondents Oracle America, Inc., of
Redwood Shores, California, and
Fujifilm Recording Media USA, Inc., of
Bedford, Massachusetts.
FOR FURTHER INFORMATION CONTACT:
Clark S. Cheney, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW.,
Washington, DC 20436, telephone 202–
205–2661. 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 September 29, 2014, based on a
complaint filed by Advanced Research
Corporation of White Bear Lake,
Minnesota (‘‘ARC’’). 79 FR 58382 (Sept.
29, 2014). The complaint alleged
violations of section 337 of the Tariff
Act of 1930, as amended (19 U.S.C.
1337), based upon the importation into
the United States, the sale for
importation, and the sale within the
United States after importation of
certain formatted magnetic data storage
tapes and cartridges containing the
same, by reason of infringement of five
U.S. patents. The original notice of
investigation named as respondents
International Business Machines Corp.
of Armonk, NY; Fujifilm Holdings
Corporation of Tokyo, Japan; Fujifilm
Corporation of Tokyo, Japan; and Oracle
Corporation of Redwood Shores,
California. Id. at 58383. The Office of
Unfair Import Investigations is
participating in the investigation. Id.
On November 18, 2014, ARC filed an
unopposed motion to amend the
complaint and notice of investigation to
add as respondents Oracle America,
Inc., of Redwood Shores, California, and
Fujifilm Recording Media USA, Inc., of
Bedford, Massachusetts.
On December 1, 2014, the ALJ issued
the subject ID (Order No. 7) granting the
motion to amend the complaint and
notice of investigation. The ALJ found
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78905
good cause for the amendment because
ARC very recently learned of the
additional respondents through
discovery, the amendment would not
delay the investigation, and the
amendment would not prejudice the
current parties to the investigation. No
petitions for review of the ID were filed.
The Commission has determined not
to review the ID.
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.
Issued: December 24, 2014.
Jennifer Rohrbach,
Supervisory Attorney.
[FR Doc. 2014–30626 Filed 12–30–14; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 337–TA–890]
Certain Sleep-Disordered Breathing
Treatment Systems and Components
Thereof; Notice of the Commission’s
Final Determination; Issuance of a
Limited Exclusion Order and Cease
and Desist Orders; Termination of the
Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has found a violation of
section 337 in this investigation and has
(1) issued a limited exclusion order
prohibiting importation of infringing
sleep-disordered breathing treatment
systems and components thereof and (2)
issued cease and desist orders directed
to domestic respondents.
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 (https://www.usitc.gov).
SUMMARY:
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Federal Register / Vol. 79, No. 250 / Wednesday, December 31, 2014 / Notices
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.
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).
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SUPPLEMENTARY INFORMATION:
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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
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’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
contingent petition for review of the ID.
On September 11, 2014, the parties filed
responses to the various petitions and
contingent petition for review.
On October 16, 2014, the Commission
determined to review the final ID in
part. 79 FR 63163–65 (Oct. 22, 2014).
Specifically, with respect to the ’487
patent, the Commission determined to
review the ALJ’s construction of the
claim term ‘‘gas washout vent’’ and
construed 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
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 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
struck 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
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).
On October 31, 2014, the parties filed
written submissions on the issues under
review, remedy, the public interest, and
bonding. On November 7, 2014, the
parties filed reply submissions.
Having examined the record of this
investigation, including the ALJ’s final
ID, with respect to the ’487 patent, the
Commission has determined that under
its construction of the claim term ‘‘gas
washout vent’’ to mean ‘‘a vent
comprising a thin air permeable
membrane extending across an opening
for exhausting gas to the atmosphere,’’
a violation of section 337 has not
occurred because, as all the parties
agree, ResMed failed to show that its
domestic industry products practice the
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’487 patent. To conserve resources, the
Commission has determined to take no
position on infringement and validity as
it pertains to the ’487 patent. Regarding
the ’453 patent, the Commission has
determined that the prior art REMstar
device anticipates the asserted claims of
the ’453 patent under the Commission’s
construction of the claim limitation ‘‘a
retaining mechanism configured to
secure the connecting structure to the
CPAP apparatus’’ 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.’’ Given that Commission’s
construction is broader than the ALJ’s
construction, the Commission has
determined to affirm the ALJ’s
infringement and domestic industry,
technical prong, findings. With respect
to domestic industry the Commission
has determined to vacate the ID’s
findings and conclusion that ResMed
established a domestic industry under
19 U.S.C. 1337(a)(3)(C).
Having found a violation of section
337 in this investigation, the
Commission has determined that the
appropriate form of relief is: (1) A
limited exclusion order prohibiting the
unlicensed entry of sleep-disordered
breathing treatment systems and
components thereof that infringe one or
more of claims 1, 9, 32, 89, and 92 of
the ’527 patent; claims 19, 21, 29, 32,
and 36 of the ’392 patent; claims 32, 33,
34, and 53 of the ’267 patent; claims 30,
37, and 38 of the ’060 patent; and claims
1, 3, 5, 11, 28, 30, 31, and 56 of the ’883
patent that are manufactured by, or on
behalf of, or are imported by or on
behalf of BMC Medical Co., Ltd., 3B
Medical, Inc., or 3B Products L.L.C. or
any of their affiliated companies,
parents, subsidiaries, agents, or other
related business entities, or their
successors or assigns, except for service
and replacement parts for customers
that purchased their covered products
prior to the date the exclusion order
becomes final; and (2) cease and desist
orders prohibiting domestic respondents
BMC Medical Co., Ltd., 3B Medical, Inc.
from conducting any of the following
activities in the United States:
Importing, selling, marketing,
advertising, distributing, transferring
(except for exportation), and soliciting
U.S. agents or distributors for, sleepdisordered breathing treatment systems
and components thereof covered by
claims 1, 9, 32, 89, and 92 of the ’527
patent; claims 19, 21, 29, 32, and 36 of
the ’392 patent; claims 32, 33, 34, and
53 of the ’267 patent; claims 30, 37, and
38 of the ’060 patent; and claims 1, 3,
5, 11, 28, 30, 31, and 56 of the ’883
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patent. The proposed cease and desist
orders include the following
exemptions: (1) If in a written
instrument, the owner of the patents
authorizes or licenses such specific
conduct, or such specific conduct is
related to the importation or same of
covered products by or for the United
States; or (2) conduct limited to the
provision of service and replacement
parts for customers that purchased their
covered products prior to the date this
Order becomes final within the meaning
of 19 U.S.C. 1337(j)(4).
The Commission has also determined
that the public interest factors
enumerated in section 337(d) and (f) (19
U.S.C. 1337(d) and (f)) do not preclude
issuance of the limited exclusion order
or cease and desist orders. Finally, the
Commission has determined that a bond
in the amount of 65 percent of entered
value is required to permit temporary
importation during the period of
Presidential review (19 U.S.C. 1337(j))
of sleep-disordered breathing treatment
systems and components thereof that
are subject to the limited exclusion
order. The Commission’s orders and
opinion were delivered to the President
and to the United States Trade
Representative on the day of their
issuance.
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.
Issued: December 23, 2014.
Jennifer Rohrbach,
Supervisory Attorney.
[FR Doc. 2014–30584 Filed 12–30–14; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed
Consent Decree Under Cercla
On December 22, 2014, the
Department of Justice lodged a proposed
consent decree between the United
States and Robert G. Schory, III with the
United States District Court for the
Western District of North Carolina,
Charlotte Division, in a case entitled
United States v. Boulos Family
Properties, LLC, et al, No. 2:14–cv–059.
The proposed consent decree resolves
claims for response costs under Section
107 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended, (‘‘CERCLA’’), 42
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78907
U.S.C. 9607, against Robert G. Schory,
III, in connection with the National
Petroleum Packers Site, a former glycol
reprocessing facility in Stallings, North
Carolina. Under the proposed consent
decree, Mr. Schory will pay $1,500 in
exchange for a covenant not to sue for
the Site from the United States,
conditioned on the accuracy of certain
representations he made about his
financial condition.
The publication of this notice opens
a period for public comment on the
consent decree. Comments should be
addressed to the Assistant Attorney
General, Environment and Natural
Resources Division, and should refer to
United States v. Boulos Family
Properties, LLC, et al, DJ. Ref. No. # 90–
11–3–10947. All comments must be
submitted no later than thirty (30) days
after the publication date of this notice.
Comments may be submitted either by
email or by mail:
To submit
comments:
Send them to:
By e-mail ............
pubcomment-ees.enrd@
usdoj.gov.
Assistant Attorney General, U.S. DOJ–ENRD,
P.O. Box 7611, Washington, DC 20044–
7611.
By mail ...............
During the public comment period,
the consent decree may be examined
and downloaded at this Justice
Department Web site: https://
www.usdoj.gov/enrd/Consent_
Decrees.html. We will provide a paper
copy of the consent decree upon written
request and payment of reproduction
costs. Please mail your request and
payment to: Consent Decree Library,
U.S. DOJ–ENRD, P.O. Box 7611,
Washington, DC 20044–7611.
Please enclose a check or money order
for $6.00 (25 cents per page
reproduction cost) payable to the United
States Treasury.
Henry S. Friedman,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. 2014–30629 Filed 12–30–14; 8:45 am]
BILLING CODE 4410–15–P
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]]>Agencies
[Federal Register Volume 79, Number 250 (Wednesday, December 31, 2014)]
[Notices]
[Pages 78905-78907]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30584]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation Nos. 337-TA-890]
Certain Sleep-Disordered Breathing Treatment Systems and
Components Thereof; Notice of the Commission's Final Determination;
Issuance of a Limited Exclusion Order and Cease and Desist Orders;
Termination of the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has found a violation of section 337 in this investigation
and has (1) issued a limited exclusion order prohibiting importation of
infringing sleep-disordered breathing treatment systems and components
thereof and (2) issued cease and desist orders directed to domestic
respondents.
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 (https://www.usitc.gov).
[[Page 78906]]
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 contingent petition for review of the ID. On September 11,
2014, the parties filed responses to the various petitions and
contingent petition for review.
On October 16, 2014, the Commission determined to review the final
ID in part. 79 FR 63163-65 (Oct. 22, 2014). Specifically, with respect
to the '487 patent, the Commission determined to review the ALJ's
construction of the claim term ``gas washout vent'' and construed 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 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 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 struck
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
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).
On October 31, 2014, the parties filed written submissions on the
issues under review, remedy, the public interest, and bonding. On
November 7, 2014, the parties filed reply submissions.
Having examined the record of this investigation, including the
ALJ's final ID, with respect to the '487 patent, the Commission has
determined that under its construction of the claim term ``gas washout
vent'' to mean ``a vent comprising a thin air permeable membrane
extending across an opening for exhausting gas to the atmosphere,'' a
violation of section 337 has not occurred because, as all the parties
agree, ResMed failed to show that its domestic industry products
practice the
[[Page 78907]]
'487 patent. To conserve resources, the Commission has determined to
take no position on infringement and validity as it pertains to the
'487 patent. Regarding the '453 patent, the Commission has determined
that the prior art REMstar device anticipates the asserted claims of
the '453 patent under the Commission's construction of the claim
limitation ``a retaining mechanism configured to secure the connecting
structure to the CPAP apparatus'' 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.'' Given that Commission's
construction is broader than the ALJ's construction, the Commission has
determined to affirm the ALJ's infringement and domestic industry,
technical prong, findings. With respect to domestic industry the
Commission has determined to vacate the ID's findings and conclusion
that ResMed established a domestic industry under 19 U.S.C.
1337(a)(3)(C).
Having found a violation of section 337 in this investigation, the
Commission has determined that the appropriate form of relief is: (1) A
limited exclusion order prohibiting the unlicensed entry of sleep-
disordered breathing treatment systems and components thereof that
infringe one or more of claims 1, 9, 32, 89, and 92 of the '527 patent;
claims 19, 21, 29, 32, and 36 of the '392 patent; claims 32, 33, 34,
and 53 of the '267 patent; claims 30, 37, and 38 of the '060 patent;
and claims 1, 3, 5, 11, 28, 30, 31, and 56 of the '883 patent that are
manufactured by, or on behalf of, or are imported by or on behalf of
BMC Medical Co., Ltd., 3B Medical, Inc., or 3B Products L.L.C. or any
of their affiliated companies, parents, subsidiaries, agents, or other
related business entities, or their successors or assigns, except for
service and replacement parts for customers that purchased their
covered products prior to the date the exclusion order becomes final;
and (2) cease and desist orders prohibiting domestic respondents BMC
Medical Co., Ltd., 3B Medical, Inc. from conducting any of the
following activities in the United States: Importing, selling,
marketing, advertising, distributing, transferring (except for
exportation), and soliciting U.S. agents or distributors for, sleep-
disordered breathing treatment systems and components thereof covered
by claims 1, 9, 32, 89, and 92 of the '527 patent; claims 19, 21, 29,
32, and 36 of the '392 patent; claims 32, 33, 34, and 53 of the '267
patent; claims 30, 37, and 38 of the '060 patent; and claims 1, 3, 5,
11, 28, 30, 31, and 56 of the '883 patent. The proposed cease and
desist orders include the following exemptions: (1) If in a written
instrument, the owner of the patents authorizes or licenses such
specific conduct, or such specific conduct is related to the
importation or same of covered products by or for the United States; or
(2) conduct limited to the provision of service and replacement parts
for customers that purchased their covered products prior to the date
this Order becomes final within the meaning of 19 U.S.C. 1337(j)(4).
The Commission has also determined that the public interest factors
enumerated in section 337(d) and (f) (19 U.S.C. 1337(d) and (f)) do not
preclude issuance of the limited exclusion order or cease and desist
orders. Finally, the Commission has determined that a bond in the
amount of 65 percent of entered value is required to permit temporary
importation during the period of Presidential review (19 U.S.C.
1337(j)) of sleep-disordered breathing treatment systems and components
thereof that are subject to the limited exclusion order. The
Commission's orders and opinion were delivered to the President and to
the United States Trade Representative on the day of their issuance.
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.
Issued: December 23, 2014.
Jennifer Rohrbach,
Supervisory Attorney.
[FR Doc. 2014-30584 Filed 12-30-14; 8:45 am]
BILLING CODE 7020-02-P
