Certain Windshield Wiper Devices and Components Thereof; Commission Decision To Review In Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions, 3471-3473 [2016-01089]
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Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Notices
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Gregory J. Gould,
Director, Office of Natural Resources
Revenue.
[FR Doc. 2016–01079 Filed 1–20–16; 8:45 am]
BILLING CODE 4335–30–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–934]
Certain Windshield Wiper Devices and
Components Thereof; Commission
Decision To Review In Part a Final
Initial Determination Finding a
Violation of Section 337; Request for
Written Submissions
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 presiding administrative law
judge’s (‘‘ALJ’’) final initial
determination (‘‘final ID’’) issued on
October 27, 2015 finding a violation of
section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (‘‘section
337’’) in the above-captioned
investigation.
FOR FURTHER INFORMATION CONTACT:
Megan M. Valentine, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
708–2301. Copies of non-confidential
asabaliauskas on DSK9F6TC42PROD with NOTICES
SUMMARY:
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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 October 27, 2014, based on a
Complaint filed by Nobel Biocare
Services AG of Switzerland and Nobel
Biocare USA, LLC of Yorba Linda,
California (collectively, ‘‘Nobel’’), as
supplemented. 79 FR 63940–41 (Oct. 27,
2014). The Complaint alleges violations
of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337 (‘‘section
337’’), in the sale for importation,
importation, and sale within the United
States after importation of certain dental
implants by reason of infringement of
certain claims of U.S. Patent Nos.
8,714,977 (‘‘the ’977 patent’’) and
8,764,443 (‘‘the ’443 patent’’). The
Complaint further alleges the existence
of a domestic industry. The
Commission’s Notice of Investigation
named as respondents Neodent USA,
Inc., of Andover, Massachusetts and
´
´
JJGC Industria e Comercio de Materiais
´
Dentarios S/A of Curitiba, Brazil
(collectively, ‘‘Respondents’’). The
Commission previously terminated the
investigation in part as to certain claims
of the ’443 patent. Notice (Apr. 29,
2015); Order No. 22 (Apr. 8, 2015). The
Commission also amended the Notice of
Investigation to reflect the corporate
name change of Neodent USA, Inc. to
lnstradent USA, Inc. Notice (May 6,
2015); Order No. 24 (Apr. 9, 2015). The
use of the term ‘‘Respondents’’ herein
refers to the current named respondents.
On October 27, 2015, the ALJ issued
his final ID, finding a violation of
section 337 with respect to asserted
claims 15, 18, 19, 30, and 32 of the ’443
patent, and finding no violation with
respect to asserted claim 17 of the ’443
patent and all of the asserted claims of
the ’977 patent. In particular, the final
ID finds that the accused products
infringe claims 1–5 and 19 of the ’977
patent and claims 15, 18, 19, 30, and 32
of the ’443 patent, but do not infringe
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3471
claim 17 of the ’443 patent. The final ID
also found that Respondents have
shown that the asserted claims of the
’977 patent are invalid for anticipation
under 35 U.S.C. 102, but have not
shown that the asserted claims of the
’443 are invalid. In addition, the final ID
found that Respondents failed to show
that the asserted claims of the ’977 and
’443 patents are unenforceable due to
inequitable conduct. The final ID further
found that Nobel has satisfied the
domestic industry requirement with
respect to both the ’977 and ’443
patents.
On November 10, 2015, the ALJ
issued his recommended determination
(‘‘RD’’) on remedy and bonding. The RD
recommended that the appropriate
remedy is a limited exclusion order
barring entry of Respondents’ infringing
dental implants. The RD did not
recommend issuance of a cease and
desist order against any respondent. The
RD recommended the imposition of a
bond of $120 per imported unit during
the period of Presidential review.
On November 9, 2015, Nobel filed a
petition for review of the final ID’s
finding of no violation with respect to
claims 1–5 of the ’977 patent. In
particular, Nobel requested review of
the final ID’s finding that the March
2003 Product Catalog of Alpha Bio Tec,
Ltd. (‘‘the 2003 Alpha Bio Tec Catalog’’)
constitutes prior art under 35 U.S.C.
102(b), arguing that the catalog was not
sufficiently publicly accessible prior to
the critical date. Nobel also requested, if
the Commission determines not to
review the ID’s prior art finding, that the
Commission review the final ID’s
construction of the limitation ‘‘the
coronal region having a frustoconical
shape’’ recited in claim 1 of the ’977
patent and, accordingly, review the final
ID’s finding that the accused products
do not infringe claims 1–5 of the ’977
patent under Nobel’s proposed
construction of that limitation. Nobel
further argued that, should the
Commission agree partially with Nobel
concerning the proper construction of
the limitation ‘‘the coronal region
having a frustoconical shape,’’ the 2003
Alpha-Bio Tec Catalog does not
anticipate the asserted claims of the ’977
patent.
No party petitioned for review of the
final ID’s finding that there is a violation
of section 337 with respect to the ’443
patent.
On November 17, 2015, Respondents
and the Commission investigative
attorney (‘‘IA’’) each filed responses
opposing Nobel’s petition for review.
On December 10, 2015, Respondents
submited a post-RD statement on the
public interest pursuant to Commission
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Rule 210.50(a)(4). On December 14,
2015, Nobel submited a post-RD
statement on the public interest
pursuant to Commission Rule
210.50(a)(4). No responses were filed by
the public in response to the post-RD
Commission Notice issued on November
12, 2015. See Notice of Request for
Statements on the Public Interest, 80 FR
76574–75 (Dec. 9, 2015), see also
Correction of Notice, 80 FR 77376–77
(Dec. 14, 2015).
Having examined the record of this
investigation, including the final ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the final ID in part.
Specifically, the Commission has
determined to review the final ID’s
construction of the limitation ‘‘coronal
region having a frustoconical shape’’
recited in claim 1 of the ’977 patent
with regard to whether or not the term
‘‘frustoconical shape’’ is an adjective
that modifies the claimed ‘‘coronal
region’’ or whether the term is an
independent structure that may
comprise only a portion of the claimed
‘‘coronal region.’’ In accordance with its
claim construction review, the
Commission has further determined to
review the final ID’s infringement
findings with respect to claims 1–5 of
the ’977 patent, as well as the final ID’s
finding that the technical prong of the
domestic industry requirement is
satisfied with respect to claims 1–5 of
the ’977 patent.
The Commission has also determined
to review the final ID’s finding that the
2003 Alpha Bio Tec Catalog is a printed
publication under 35 U.S.C. 102. The
Commission has further determined to
review the final ID’s finding that the
2003 Alpha Bio Tec Catalog anticipates
claims 1–5 of the ’977 patent.
The Commission has determined not
to review the remaining issues decided
in the final ID.
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 questions:
1. With respect to the proper construction
of the limitation ‘‘coronal region having a
frustoconical shape’’ recited in claim 1 of the
’977 patent, please address the meaning of
the term ‘‘frustoconical shape’’ in the context
of claim 1, and, in particular, whether the
term is an adjective that merely modifies the
claimed ‘‘coronal region’’ or whether the
term may refer to an independent structure
comprised within the claimed ‘‘coronal
region.’’ In addition, please address the
significance of the clause ‘‘wherein a
diameter of an apical end of the coronal
region is larger than a diameter of a coronal
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end of the coronal region’’ recited in claim
1 to the appropriate construction of the
limitation ‘‘coronal region having a
frustoconical shape.’’ Please discuss all
governing precedent with respect to this
issue.
2. With respect to whether the 2003 Alpha
Bio Tec Catalog is prior art to the ’977 patent,
please address the significance of the
evidence presented in exhibit JX–0278C, and
the significance of the inclusion of the
catalog in an information disclosure
statement to the U.S. Patent and Trademark
Office (see exhibit CX–0560). In addition,
please address any evidence regarding the
publication date of the 2003 Alpha Bio Tec
Catalog, as well as any record evidence
concerning whether and when the 2003
Alpha Bio Tec Catalog was ‘‘publically
accessible’’ prior to the critical date under
governing precedent.
3. Please address whether the 2003 Alpha
Bio Tec Catalog anticipates the asserted
claims of the ’977 patent under a
construction of the limitation ‘‘coronal region
having a frustoconical shape’’ recited in
claim 1 that requires the entire coronal region
to be frustoconical but does not require any
additional functional limitation.
4. With respect to whether the 2003 Alpha
Bio Tec Catalog anticipates claim 2 of the
’977 patent, please address the significance of
the testimony of Nobel’s expert, Mr. Hurson,
that one of ordinary skill in the art would
understand that any portion of an implant
intended to mate with another component,
e.g. an abutment, would never be acidetched. In addition, please address whether
or not the 2003 Alpha Bio Tec Catalog clearly
and convincingly discloses that the bevel of
the illustrated 5.0 mm SPI implant is acid
etched.
5. Please address whether, under a
construction of the limitation ‘‘coronal region
having a frustoconical shape’’ recited in
claim 1 of the ’977 patent that requires the
entire coronal region to be frustoconical but
does not require any additional functional
limitation, the technical prong of the
domestic industry requirement is satisfied
with respect to claim 1 of the ’977 patent.
The parties have been invited to brief
only these discrete issues, as
enumerated above, with reference to the
applicable law and evidentiary record.
The parties are not to brief other issues
on review, which are adequately
presented in the parties’ existing filings.
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 respondent(s) 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.
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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, including the Office of
Unfair Import Investigations, are
requested to file written submissions on
the issues identified in this notice.
Parties to the investigation, including
the Office of Unfair Import
Investigations, 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 Office of Unfair Import
Investigations are also requested to
submit proposed remedial orders for the
Commission’s consideration.
Complainant is further requested to
state the dates that the patents expire,
the HTSUS numbers under which the
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Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Notices
accused products are imported, and any
known importers of the accused
products. The written submissions and
proposed remedial orders must be filed
no later than close of business on
January 21, 2016. Initial submissions are
limited to 50 pages, not including any
attachments or exhibits related to
discussion of the public interest. Reply
submissions must be filed no later than
the close of business on January 28,
2016. Reply submissions are limited to
25 pages, not including any attachments
or exhibits related to discussion of the
public interest. No further submissions
on 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 8 true paper
copies to the Office of the Secretary by
noon the next day pursuant to § 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–934’’) 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
any confidential filing. All nonconfidential written submissions will be
available for public inspection at the
Office of the Secretary and on EDIS.
On October 21, 2015, Nobel filed a
motion to amend the Administrative
Protective Order (‘‘APO’’) issued in this
investigation to add specific provisions
permitting the use of discovery from
this investigation in two co-pending
proceedings in the U.S. Patent and
Trademark Office captioned as
Instradent USA, Inc. v. Nobel Biocare
Services AG, IPR2015–01784, and
Instradent USA, Inc. v. Nobel Biocare
Services AG, IPR2015–01786. On
November 2, 2015, Respondents and the
IA filed oppositions to Nobel’s motion.
On November 12, 2015, Nobel filed a
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motion for leave to file a reply in
support of its motion to amend the APO.
On November 23, 2015, Respondents
filed an opposition to Nobel’s motion
for leave to file a reply.
The Commission has determined to
deny both Nobel’s motion to amend the
APO and motion for leave to file a reply
in support of its motion.
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: January 14, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016–01089 Filed 1–20–16; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–983]
Certain Laser-Driven Light Sources,
Subsystems Containing Laser-Driven
Light Sources, and Products
Containing Same; Institution of
Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that a
complaint was filed with the U.S.
International Trade Commission on
December 15, 2015, under section 337 of
the Tariff Act of 1930, as amended, 19
U.S.C. 1337, on behalf of Energetiq
Technology, Inc. of Woburn,
Massachusetts. A supplement to the
complaint was filed on December 23,
2015. The complaint, as supplemented,
alleges violations of section 337 based
upon the importation into the United
States, the sale for importation, and the
sale within the United States after
importation of certain laser-driven light
sources, subsystems containing laserdriven light sources, and products
containing same by reason of
infringement of certain claims of U.S.
Patent No. 8,969,841 (‘‘the ’841 patent’’);
U.S. Patent No. 9,048,000 (‘‘the ’000
patent’’); and U.S. Patent No. 9,185,786
(‘‘the ’786 patent’’). The complaint
further alleges that an industry in the
United States exists as required by
subsection (a)(2) of section 337.
The complainant requests that the
Commission institute an investigation
and, after the investigation, issue a
SUMMARY:
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3473
limited exclusion order and cease and
desist orders.
ADDRESSES: The complaint, except for
any confidential information contained
therein, is 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., Room
112, Washington, DC 20436, telephone
(202) 205–2000. Hearing impaired
individuals are advised that information
on this matter can be obtained by
contacting the Commission’s TDD
terminal on (202) 205–1810. Persons
with mobility impairments who will
need special assistance in gaining access
to the Commission should contact the
Office of the Secretary at (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.
FOR FURTHER INFORMATION CONTACT: The
Office of Docket Services, U.S.
International Trade Commission,
telephone (202) 205–1802.
Authority: The authority for institution of
this investigation is contained in section 337
of the Tariff Act of 1930, as amended, and
in section 210.10 of the Commission’s Rules
of Practice and Procedure, 19 CFR 210.10
(2015).
Scope of Investigation: Having
considered the complaint, the U.S.
International Trade Commission, on
January 14, 2016, ordered that—
(1) Pursuant to subsection (b) of
section 337 of the Tariff Act of 1930, as
amended, an investigation be instituted
to determine whether there is a
violation of subsection (a)(1)(B) of
section 337 in the importation into the
United States, the sale for importation,
or the sale within the United States after
importation of certain laser-driven light
sources, subsystems containing laserdriven light sources, and products
containing same by reason of
infringement of one or more of claims
1–3, 6, 7, 10, 11, 13, 26, and 29 of the
’841 patent; claims 1–6 and 15–18 of the
’000 patent; and claims 1, 6, 8, 13, 15,
20, 21, and 25 of the ’786 patent, and
whether an industry in the United
States exists as required by subsection
(a)(2) of section 337;
(2) For the purpose of the
investigation so instituted, the following
are hereby named as parties upon which
this notice of investigation shall be
served:
(a) The complainant is: Energetiq
Technology, Inc., 7 Constitution Way,
Woburn, MA 01801.
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]]>Agencies
[Federal Register Volume 81, Number 13 (Thursday, January 21, 2016)]
[Notices]
[Pages 3471-3473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01089]
=======================================================================
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-934]
Certain Windshield Wiper Devices and Components Thereof;
Commission Decision To Review In Part a Final Initial Determination
Finding a Violation of Section 337; Request for Written Submissions
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 presiding
administrative law judge's (``ALJ'') final initial determination
(``final ID'') issued on October 27, 2015 finding a violation of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337'') in the above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-2301. 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 October 27, 2014, based on a Complaint filed by Nobel Biocare
Services AG of Switzerland and Nobel Biocare USA, LLC of Yorba Linda,
California (collectively, ``Nobel''), as supplemented. 79 FR 63940-41
(Oct. 27, 2014). The Complaint alleges violations of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in
the sale for importation, importation, and sale within the United
States after importation of certain dental implants by reason of
infringement of certain claims of U.S. Patent Nos. 8,714,977 (``the
'977 patent'') and 8,764,443 (``the '443 patent''). The Complaint
further alleges the existence of a domestic industry. The Commission's
Notice of Investigation named as respondents Neodent USA, Inc., of
Andover, Massachusetts and JJGC Ind[uacute]stria e Com[eacute]rcio de
Materiais Dent[aacute]rios S/A of Curitiba, Brazil (collectively,
``Respondents''). The Commission previously terminated the
investigation in part as to certain claims of the '443 patent. Notice
(Apr. 29, 2015); Order No. 22 (Apr. 8, 2015). The Commission also
amended the Notice of Investigation to reflect the corporate name
change of Neodent USA, Inc. to lnstradent USA, Inc. Notice (May 6,
2015); Order No. 24 (Apr. 9, 2015). The use of the term ``Respondents''
herein refers to the current named respondents.
On October 27, 2015, the ALJ issued his final ID, finding a
violation of section 337 with respect to asserted claims 15, 18, 19,
30, and 32 of the '443 patent, and finding no violation with respect to
asserted claim 17 of the '443 patent and all of the asserted claims of
the '977 patent. In particular, the final ID finds that the accused
products infringe claims 1-5 and 19 of the '977 patent and claims 15,
18, 19, 30, and 32 of the '443 patent, but do not infringe claim 17 of
the '443 patent. The final ID also found that Respondents have shown
that the asserted claims of the '977 patent are invalid for
anticipation under 35 U.S.C. 102, but have not shown that the asserted
claims of the '443 are invalid. In addition, the final ID found that
Respondents failed to show that the asserted claims of the '977 and
'443 patents are unenforceable due to inequitable conduct. The final ID
further found that Nobel has satisfied the domestic industry
requirement with respect to both the '977 and '443 patents.
On November 10, 2015, the ALJ issued his recommended determination
(``RD'') on remedy and bonding. The RD recommended that the appropriate
remedy is a limited exclusion order barring entry of Respondents'
infringing dental implants. The RD did not recommend issuance of a
cease and desist order against any respondent. The RD recommended the
imposition of a bond of $120 per imported unit during the period of
Presidential review.
On November 9, 2015, Nobel filed a petition for review of the final
ID's finding of no violation with respect to claims 1-5 of the '977
patent. In particular, Nobel requested review of the final ID's finding
that the March 2003 Product Catalog of Alpha Bio Tec, Ltd. (``the 2003
Alpha Bio Tec Catalog'') constitutes prior art under 35 U.S.C. 102(b),
arguing that the catalog was not sufficiently publicly accessible prior
to the critical date. Nobel also requested, if the Commission
determines not to review the ID's prior art finding, that the
Commission review the final ID's construction of the limitation ``the
coronal region having a frustoconical shape'' recited in claim 1 of the
'977 patent and, accordingly, review the final ID's finding that the
accused products do not infringe claims 1-5 of the '977 patent under
Nobel's proposed construction of that limitation. Nobel further argued
that, should the Commission agree partially with Nobel concerning the
proper construction of the limitation ``the coronal region having a
frustoconical shape,'' the 2003 Alpha-Bio Tec Catalog does not
anticipate the asserted claims of the '977 patent.
No party petitioned for review of the final ID's finding that there
is a violation of section 337 with respect to the '443 patent.
On November 17, 2015, Respondents and the Commission investigative
attorney (``IA'') each filed responses opposing Nobel's petition for
review.
On December 10, 2015, Respondents submited a post-RD statement on
the public interest pursuant to Commission
[[Page 3472]]
Rule 210.50(a)(4). On December 14, 2015, Nobel submited a post-RD
statement on the public interest pursuant to Commission Rule
210.50(a)(4). No responses were filed by the public in response to the
post-RD Commission Notice issued on November 12, 2015. See Notice of
Request for Statements on the Public Interest, 80 FR 76574-75 (Dec. 9,
2015), see also Correction of Notice, 80 FR 77376-77 (Dec. 14, 2015).
Having examined the record of this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID in part.
Specifically, the Commission has determined to review the final
ID's construction of the limitation ``coronal region having a
frustoconical shape'' recited in claim 1 of the '977 patent with regard
to whether or not the term ``frustoconical shape'' is an adjective that
modifies the claimed ``coronal region'' or whether the term is an
independent structure that may comprise only a portion of the claimed
``coronal region.'' In accordance with its claim construction review,
the Commission has further determined to review the final ID's
infringement findings with respect to claims 1-5 of the '977 patent, as
well as the final ID's finding that the technical prong of the domestic
industry requirement is satisfied with respect to claims 1-5 of the
'977 patent.
The Commission has also determined to review the final ID's finding
that the 2003 Alpha Bio Tec Catalog is a printed publication under 35
U.S.C. 102. The Commission has further determined to review the final
ID's finding that the 2003 Alpha Bio Tec Catalog anticipates claims 1-5
of the '977 patent.
The Commission has determined not to review the remaining issues
decided in the final ID.
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 questions:
1. With respect to the proper construction of the limitation
``coronal region having a frustoconical shape'' recited in claim 1
of the '977 patent, please address the meaning of the term
``frustoconical shape'' in the context of claim 1, and, in
particular, whether the term is an adjective that merely modifies
the claimed ``coronal region'' or whether the term may refer to an
independent structure comprised within the claimed ``coronal
region.'' In addition, please address the significance of the clause
``wherein a diameter of an apical end of the coronal region is
larger than a diameter of a coronal end of the coronal region''
recited in claim 1 to the appropriate construction of the limitation
``coronal region having a frustoconical shape.'' Please discuss all
governing precedent with respect to this issue.
2. With respect to whether the 2003 Alpha Bio Tec Catalog is
prior art to the '977 patent, please address the significance of the
evidence presented in exhibit JX-0278C, and the significance of the
inclusion of the catalog in an information disclosure statement to
the U.S. Patent and Trademark Office (see exhibit CX-0560). In
addition, please address any evidence regarding the publication date
of the 2003 Alpha Bio Tec Catalog, as well as any record evidence
concerning whether and when the 2003 Alpha Bio Tec Catalog was
``publically accessible'' prior to the critical date under governing
precedent.
3. Please address whether the 2003 Alpha Bio Tec Catalog
anticipates the asserted claims of the '977 patent under a
construction of the limitation ``coronal region having a
frustoconical shape'' recited in claim 1 that requires the entire
coronal region to be frustoconical but does not require any
additional functional limitation.
4. With respect to whether the 2003 Alpha Bio Tec Catalog
anticipates claim 2 of the '977 patent, please address the
significance of the testimony of Nobel's expert, Mr. Hurson, that
one of ordinary skill in the art would understand that any portion
of an implant intended to mate with another component, e.g. an
abutment, would never be acid-etched. In addition, please address
whether or not the 2003 Alpha Bio Tec Catalog clearly and
convincingly discloses that the bevel of the illustrated 5.0 mm SPI
implant is acid etched.
5. Please address whether, under a construction of the
limitation ``coronal region having a frustoconical shape'' recited
in claim 1 of the '977 patent that requires the entire coronal
region to be frustoconical but does not require any additional
functional limitation, the technical prong of the domestic industry
requirement is satisfied with respect to claim 1 of the '977 patent.
The parties have been invited to brief only these discrete issues,
as enumerated above, with reference to the applicable law and
evidentiary record. The parties are not to brief other issues on
review, which are adequately presented in the parties' existing
filings.
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
respondent(s) 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, including
the Office of Unfair Import Investigations, are requested to file
written submissions on the issues identified in this notice. Parties to
the investigation, including the Office of Unfair Import
Investigations, 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 Office of Unfair Import Investigations are
also requested to submit proposed remedial orders for the Commission's
consideration. Complainant is further requested to state the dates that
the patents expire, the HTSUS numbers under which the
[[Page 3473]]
accused products are imported, and any known importers of the accused
products. The written submissions and proposed remedial orders must be
filed no later than close of business on January 21, 2016. Initial
submissions are limited to 50 pages, not including any attachments or
exhibits related to discussion of the public interest. Reply
submissions must be filed no later than the close of business on
January 28, 2016. Reply submissions are limited to 25 pages, not
including any attachments or exhibits related to discussion of the
public interest. No further submissions on 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 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to Sec. 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-934'') 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 any confidential filing. All non-confidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
On October 21, 2015, Nobel filed a motion to amend the
Administrative Protective Order (``APO'') issued in this investigation
to add specific provisions permitting the use of discovery from this
investigation in two co-pending proceedings in the U.S. Patent and
Trademark Office captioned as Instradent USA, Inc. v. Nobel Biocare
Services AG, IPR2015-01784, and Instradent USA, Inc. v. Nobel Biocare
Services AG, IPR2015-01786. On November 2, 2015, Respondents and the IA
filed oppositions to Nobel's motion. On November 12, 2015, Nobel filed
a motion for leave to file a reply in support of its motion to amend
the APO. On November 23, 2015, Respondents filed an opposition to
Nobel's motion for leave to file a reply.
The Commission has determined to deny both Nobel's motion to amend
the APO and motion for leave to file a reply in support of its motion.
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: January 14, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-01089 Filed 1-20-16; 8:45 am]
BILLING CODE 7020-02-P
