Certain Digital Models, Digital Data, and Treatment Plans for Use in Making Incremental Dental Appliances, the Appliances Made Therefrom, and Methods of Making Same; Notice of Commission Determination To Review the Final Initial Determination of the Administrative Law Judge; Schedule for Filing Written Submissions on Review, 46611-46612 [2013-18437]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Notices]
[Pages 46611-46612]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18437]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-833]


Certain Digital Models, Digital Data, and Treatment Plans for Use 
in Making Incremental Dental Appliances, the Appliances Made Therefrom, 
and Methods of Making Same; Notice of Commission Determination To 
Review the Final Initial Determination of the Administrative Law Judge; 
Schedule for Filing Written Submissions on Review

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review the final initial determination 
(``final ID'' or ``ID'') in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: James A. Worth, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3065. 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: This investigation was instituted on April 
5, 2012, based upon a complaint filed on behalf of Align Technology, 
Inc., of San Jose, California (``Align''), on March 1, 2012, as 
corrected on March 22, 2012. 77 FR 20648 (April 5, 2012). The complaint 
alleged violations of Section 337 of the Tariff Act of 1930, 19 U.S.C. 
1337 (``Section 337'') in the sale for importation, importation, or 
sale within

[[Page 46612]]

the United States after importation of certain digital models, digital 
data, and treatment plans for use in making incremental dental 
appliances, the appliances made therefrom, and methods of making the 
same by reason of infringement of certain claims of U.S. Patent No. 
6,217,325 (``the '325 patent''); U.S. Patent No. 6,471,511 (``the '511 
patent''); U.S. Patent No. 6,626,666; U.S. Patent No. 6,705,863 (``the 
'863 patent''); U.S. Patent No. 6,722,880 (``the '880 patent''); U.S. 
Patent No. 7,134,874 (``the '874 patent''); and U.S. Patent No. 
8,070,487 (the '487 patent''). The notice of institution named as 
respondents ClearCorrect Pakistan (Private), Ltd. of Lahore, Pakistan 
and ClearCorrect Operating, LLC of Houston, Texas (collectively, ``the 
Respondents'').
    On May 6, 2013, the administrative law review issued the final ID, 
finding a violation of Section 337 with respect to the '325 patent, the 
'880 patent, the '487 patent, the '511 patent, '863 patent, and the 
'874 patent. The ALJ recommended the issuance of cease and desist 
orders.
    On May 20, 2013, Align, the Respondents, and the Commission 
investigative attorney each filed a petition for review. On May 28, 
2013, each of the parties filed a response thereto. On June 5, 2013, 
Align filed a statement on the public interest. On June 13, 2013, the 
Respondents filed a statement on the public interest.
    After considering the ID and the relevant portions of the record, 
the Commission has determined to review the ID in its entirety.
    The parties should 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 questions:

    Question 1: Does the language and legislative history of Section 
337 provide a basis for interpreting ``articles'' to cover 
electronic transmissions? Does the Commission's remedial cease and 
desist order in Certain Hardware Logic Emulation Systems and 
Components Thereof, Inv. No. 337-TA-383 (1998), which prohibited the 
electronic transmission of data, necessarily mean that electronic 
transmission is importation for purposes of violation within the 
meaning of Section 337(a)(1)(B)?
    Question 2: Is the use of a computer to perform an operation 
(such as interpolation), which was previously performed in an analog 
manner, the type of advance which does not render the asserted 
patent claims nonobvious over the prior art on the facts of this 
case? Please answer with regard to the factual record in this 
investigation.

    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 a 
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 9 
(December 1994).
    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 United States 
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. Complainant and the Commission investigative 
attorney are also requested to submit proposed remedial orders for the 
Commission's consideration. Complainant is also requested to state the 
date that the patents expire and the HTSUS subheadings under which the 
accused products are imported. The written submissions and proposed 
remedial orders must be filed no later than close of business on August 
8, 2013. Reply submissions must be filed no later than the close of 
business on August 15, 2013. The written submissions must be no longer 
than 20 pages and the reply submissions must be no longer than 10 
pages. No further submissions on these issues will be permitted unless 
otherwise ordered by the Commission.
    Persons filing written submissions must do so in accordance with 
Commission rule 210.4(f), 19 CFR 210.4(f), which requires electronic 
filing. The original document and 8 true copies thereof must also be 
filed on or before the deadlines stated above with the Office of the 
Secretary. Any person desiring to submit a document to the Commission 
in confidence must request confidential treatment unless the 
information has already been granted such treatment during the 
proceedings. All such requests should be directed to the Secretary of 
the Commission and must include a full statement of the reasons why the 
Commission should grant such treatment. See 19 CFR 210.6. Documents for 
which confidential treatment by the Commission is sought will be 
treated accordingly. 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.

    Issued: July 25, 2013.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-18437 Filed 7-31-13; 8:45 am]
BILLING CODE 7020-02-P