Certain Wearable Monitoring Devices, Systems, and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Affirmance of a Finding of No Violation of Section 337; Termination of Investigation, 20199-20200 [2021-07797]
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Federal Register / Vol. 86, No. 72 / Friday, April 16, 2021 / Notices
Issued: April 13, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–07900 Filed 4–15–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1190]
Certain Wearable Monitoring Devices,
Systems, and Components Thereof;
Commission Determination To Review
in Part a Final Initial Determination
Finding No Violation of Section 337;
Affirmance of a Finding of No Violation
of Section 337; Termination of
Investigation
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 a final initial determination
(‘‘ID’’) of the presiding administrative
law judge (‘‘ALJ’’) finding no violation
of section 337. On review, the
Commission has determined to affirm
the final ID’s finding of no violation of
section 337. The investigation is
terminated.
FOR FURTHER INFORMATION CONTACT:
Clint Gerdine, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–2310. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal, telephone
202–205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on January 15, 2020, based on a
complaint filed on behalf of Philips
North America, LLC of Andover,
Massachusetts and Koninklijke Philips
N.V. of Eindhoven, Netherlands
(collectively, ‘‘Complainants’’). 85 FR
2440–41 (Jan. 15, 2020). The complaint,
as supplemented, alleges 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,
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the sale for importation, and the sale
within the United States after
importation of certain wearable
monitoring devices, systems, and
components thereof by reason of
infringement of certain claims of U.S.
Patent Nos. 7,845,228 (‘‘the ’228
patent’’); 9,820,698 (‘‘the ’698 patent’’);
9,717,464 (‘‘the ’464 patent’’); and
9,961,186 (‘‘the ’186 patent’’). The
Commission’s notice of investigation
named the following Respondents:
Fitbit, Inc. (‘‘Fitbit’’) of San Francisco,
California; Garmin International, Inc.
and Garmin USA, Inc., both of Olathe,
Kansas (‘‘the domestic Garmin
Respondents’’); Garmin Ltd. d/b/a
Garmin Switzerland GmbH of
Schaffhausen, Switzerland; Ingram
Micro Inc. of Irvine, California; Maintek
Computer (Suzhou) Co., Ltd. of Jiangsu
Province, China; and Inventec
Appliances (Pudong) of Shanghai, China
(collectively, ‘‘Respondents’’). The
Office of Unfair Import Investigations
(‘‘OUII’’) is participating in the
investigation. The ’186 patent was
previously terminated from the
investigation. Order No. 25 (July 17,
2020), unreviewed by Comm’n Notice
(Aug. 4, 2020).
On February 4, 2021, the ALJ issued
the final ID finding no violation of
section 337 as to the two patents
involved in the evidentiary hearing, the
’228 and ’464 patents. (Regarding the
’698 patent, see Order. No. 35
(discussed below)). With respect to the
’228 patent, the ID finds that: (1) None
of Respondents’ accused products
infringe asserted claim 2 of the ’228
patent; (2) claim 2 of the ’228 patent is
invalid as anticipated under 35 U.S.C.
102 by the asserted prior art (U.S. Patent
No. 6,077,236); (3) claim 2 of the ’228
patent is directed to patent-ineligible
subject matter under 35 U.S.C. 101; (4)
claim 2 of the ’228 patent is not
anticipated under 35 U.S.C. 102, or
rendered obvious under 35 U.S.C. 103,
by any other asserted prior art; (5) claim
2 of the ’228 patent is not unenforceable
based on patent exhaustion; and (6)
Philips has satisfied the domestic
industry requirement with respect to the
’228 patent.
With respect to the ’464 patent, the ID
finds that: (1) None of Respondents’
accused products infringe asserted
claims 1 and 6 of the ’464 patent; (2)
claims 1 and 6 of the ’464 patent are
directed to patent-ineligible subject
matter under 35 U.S.C. 101; (3) claims
1 and 6 of the ’464 patent are not
anticipated under 35 U.S.C. 102 and
they are not rendered obvious under 35
U.S.C. 103; and (4) claims 1 and 6 of the
’464 patent are not invalid based on
improper inventorship under 35 U.S.C.
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20199
115(a) or 116(a); (5) Philips has not
satisfied the technical prong of the
domestic industry requirement with
respect to the ’464 patent; and (6)
Philips has satisfied the economic prong
of the domestic industry requirement by
showing that a domestic industry is in
the process of being established.
In the Recommended Determination,
the ALJ recommends that if the
Commission finds a violation it should
issue a limited exclusion order directed
to Respondents’ infringing products and
a cease and desist order directed to the
domestic Garmin respondents and
Fitbit.
On February 16, 2021, Philips
petitioned, OUII petitioned and
contingently petitioned, and
Respondents contingently petitioned for
review of certain aspects of the final ID.
On February 24, 2021, Philips, OUII,
and Respondents each responded to the
other parties’ petitions for review.
The Commission received no public
interest comments from the public in
response to the Federal Register notice
seeking comment on the public interest.
86 FR 9085–86 (Feb. 11, 2021). On
March 8, 2021, Respondents submitted
public interest comments pursuant to
Commission Rule 210.50(a)(4). No other
party submitted public interest
comments.
The Commission has determined to
review the final ID in part. Specifically,
the Commission has determined to
review: (1) The ID’s construction of the
term ‘‘monitor’’ recited in claim 2 of the
’228 patent; (2) the ID’s finding of noninfringement for claim 2 of the ’228
patent; (3) the ID’s finding that Philips
has satisfied the domestic industry
requirement with respect to the ’228
patent; (4) the ID’s finding that claim 2
of the ’228 patent is not unenforceable
based on patent exhaustion; and (5) the
ID’s finding, with respect to the ’464
patent, that Philips has satisfied the
economic prong of the domestic
industry requirement by showing that a
domestic industry is in the process of
being established. The Commission has
determined not to review the remainder
of the final ID.
On review, the Commission has
determined to: (1) Construe the term
‘‘monitor’’ recited in claim 2 of the ’228
patent to mean ‘‘receive and track’’; (2)
affirm, with modified reasoning, the ID’s
finding that the accused products
practice the ‘‘monitor [ ] the sensor
signals discontinuously in time’’
limitation recited in claim 2; and (3)
reverse the ID’s finding that the accused
products do not practice the ‘‘monitor
the sensor signals in turn’’ limitation
recited in claim 2. Accordingly, the
Commission finds that the accused
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Federal Register / Vol. 86, No. 72 / Friday, April 16, 2021 / Notices
products infringe claim 2 of the ’228
patent. The Commission has also
determined to reverse the ID’s finding
that Philips’ BX–100 Biosensor Device
does not practice all limitations of the
’228 patent, and therefore finds that
Philips satisfies the technical prong of
the domestic industry requirement with
respect to this patent. The Commission
takes no position on the ID’s finding
that claim 2 of the ’228 patent is not
unenforceable based on patent
exhaustion. With respect to the ’464
patent, the Commission has determined
to take no position on the ID’s analysis
and finding regarding an industry in the
process of being established, and
therefore takes no position on whether
Philips has met the economic prong
requirement.
Accordingly, as the Commission does
not disturb the ID’s other findings with
respect to the ’228 and ’464 patents, the
Commission has determined to affirm
the final ID’s finding of no violation of
section 337 with respect to these two
patents.
The Commission previously
determined to review two IDs the ALJ
issued on October 1, 2020: (1) Order No.
34 granting Philips’ motion for partial
summary determination that
complainants satisfied the economic
prong of the domestic industry
requirement as to the BX–100 Biosensor
Device with respect to the ’228 patent;
and (2) Order No. 35 granting
Respondents’ motion for summary
determination that Respondents’
accused products do not infringe (i)
asserted claims 1 and 6 of the ’698
patent, and (ii) asserted claims 1 and 6
of the ’464 patent with respect to the
accused heart rate monitoring
functionalities. Comm’n Notice (Nov.
16, 2020). On review of the first ID
(Order No. 34), the Commission has
determined to take no position on the
ID’s finding that Philips has satisfied the
economic prong of the domestic
industry requirement by showing that a
domestic industry is in the process of
being established. The Commission has
determined to affirm the finding in
Order No. 34 that an industry exists in
the United States as to the BX–100
Biosensor Device with respect to the
’228 patent. The Commission has also
determined to affirm the findings in the
second ID (Order No. 35) of noninfringement with respect to the ’698
patent, and non-infringement with
respect to the ’464 patent for the heart
rate monitoring functionalities in the
accused Fitbit and Garmin devices. The
’698 patent therefore is terminated from
the investigation with a finding of no
violation of section 337.
The investigation is terminated.
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The Commission vote for this
determination took place on April 12,
2021.
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: April 12, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–07797 Filed 4–15–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1175]
Certain Bone Cements and Bone
Cement Accessories; Commission
Determination To Review in Part a
Final Initial Determination Finding No
Violation of Section 337; Schedule for
Filing Written Submissions on the
Issues Under Review and on Remedy,
Public Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to review in part a final
initial determination (‘‘FID’’) of the
presiding administrative law judge
(‘‘ALJ’’) finding no violation of section
337 of the Tariff Act of 1930, as
amended, in the above-captioned
investigation. The Commission requests
briefing from the parties on certain
issues under review, as indicated in this
notice. The Commission also requests
briefing from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT:
Lynde Herzbach, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3228. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
Hearing-impaired persons are advised
SUMMARY:
PO 00000
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Fmt 4703
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that information on this matter can be
obtained by contacting the
Commission’s TDD terminal, telephone
202–205–1810.
SUPPLEMENTARY INFORMATION: On
September 23, 2019, the Commission
instituted this investigation based on a
complaint filed on behalf of Zimmer,
Inc. and Zimmer US, Inc. both of
Warsaw, Indiana (collectively,
‘‘Complainants’’). 84 FR 49764 (Sept.
23, 2019). The complaint alleges
violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337
(‘‘section 337’’), based on the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain bone cements and bone cement
accessories by reason of the
misappropriation of trade secrets, false
advertising, and tortious interference,
the threat or effect of which is to destroy
or substantially injure an industry in the
United States. The complaint also
alleges the existence of a domestic
industry. The Commission’s notice of
investigation names the following as
respondents: Heraeus Medical GmbH of
Wehrheim, Germany and Heraeus
Medical LLC of Yardley, Pennsylvania
(collectively, ‘‘Respondents’’). Id. The
Office of Unfair Import Investigations
(‘‘OUII’’) is named as a party in this
investigation. Id.
On February 11, 2021, the ALJ issued
the FID, finding no violation of section
337. More particularly, the FID finds,
inter alia, that: (1) The Commission has
subject matter and personal jurisdiction;
(2) Respondents sold for importation
into the United States, imported, or sold
after importation accused bone cements
and bone cement accessories; (3) a
domestic industry exists with respect to
Complainants’ accessory products under
section 337(a)(1)(A)(i) (19 U.S.C.
1337(a)(1)(A)(i)); (4) Complainants own
the asserted trade secrets; (5) trade
secrets (‘‘TS’’) 10, 15, and 28 are
protectable, but TS 11 is not protectable;
(6) Respondents did not misappropriate
any asserted TS; (6) Respondents did
not engage in false advertising; (7)
Respondents did not tortiously
interference with Complainants’
contracts or prospective business
relationships; and (6) Complainants
failed to show a substantial injury or
threat of injury to their domestic
industry.
The FID includes the ALJ’s
recommended determination (‘‘RD’’),
which recommends that, if the
Commission finds a violation of section
337, the Commission should issue a
limited exclusion order and a cease and
desist order directed to Respondents.
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[Federal Register Volume 86, Number 72 (Friday, April 16, 2021)]
[Notices]
[Pages 20199-20200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07797]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1190]
Certain Wearable Monitoring Devices, Systems, and Components
Thereof; Commission Determination To Review in Part a Final Initial
Determination Finding No Violation of Section 337; Affirmance of a
Finding of No Violation of Section 337; Termination of Investigation
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 a final initial
determination (``ID'') of the presiding administrative law judge
(``ALJ'') finding no violation of section 337. On review, the
Commission has determined to affirm the final ID's finding of no
violation of section 337. The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2310. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.usitc.gov. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD
terminal, telephone 202-205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on January 15, 2020, based on a complaint filed on behalf of Philips
North America, LLC of Andover, Massachusetts and Koninklijke Philips
N.V. of Eindhoven, Netherlands (collectively, ``Complainants''). 85 FR
2440-41 (Jan. 15, 2020). The complaint, as supplemented, alleges
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 wearable monitoring devices, systems, and
components thereof by reason of infringement of certain claims of U.S.
Patent Nos. 7,845,228 (``the '228 patent''); 9,820,698 (``the '698
patent''); 9,717,464 (``the '464 patent''); and 9,961,186 (``the '186
patent''). The Commission's notice of investigation named the following
Respondents: Fitbit, Inc. (``Fitbit'') of San Francisco, California;
Garmin International, Inc. and Garmin USA, Inc., both of Olathe, Kansas
(``the domestic Garmin Respondents''); Garmin Ltd. d/b/a Garmin
Switzerland GmbH of Schaffhausen, Switzerland; Ingram Micro Inc. of
Irvine, California; Maintek Computer (Suzhou) Co., Ltd. of Jiangsu
Province, China; and Inventec Appliances (Pudong) of Shanghai, China
(collectively, ``Respondents''). The Office of Unfair Import
Investigations (``OUII'') is participating in the investigation. The
'186 patent was previously terminated from the investigation. Order No.
25 (July 17, 2020), unreviewed by Comm'n Notice (Aug. 4, 2020).
On February 4, 2021, the ALJ issued the final ID finding no
violation of section 337 as to the two patents involved in the
evidentiary hearing, the '228 and '464 patents. (Regarding the '698
patent, see Order. No. 35 (discussed below)). With respect to the '228
patent, the ID finds that: (1) None of Respondents' accused products
infringe asserted claim 2 of the '228 patent; (2) claim 2 of the '228
patent is invalid as anticipated under 35 U.S.C. 102 by the asserted
prior art (U.S. Patent No. 6,077,236); (3) claim 2 of the '228 patent
is directed to patent-ineligible subject matter under 35 U.S.C. 101;
(4) claim 2 of the '228 patent is not anticipated under 35 U.S.C. 102,
or rendered obvious under 35 U.S.C. 103, by any other asserted prior
art; (5) claim 2 of the '228 patent is not unenforceable based on
patent exhaustion; and (6) Philips has satisfied the domestic industry
requirement with respect to the '228 patent.
With respect to the '464 patent, the ID finds that: (1) None of
Respondents' accused products infringe asserted claims 1 and 6 of the
'464 patent; (2) claims 1 and 6 of the '464 patent are directed to
patent-ineligible subject matter under 35 U.S.C. 101; (3) claims 1 and
6 of the '464 patent are not anticipated under 35 U.S.C. 102 and they
are not rendered obvious under 35 U.S.C. 103; and (4) claims 1 and 6 of
the '464 patent are not invalid based on improper inventorship under 35
U.S.C. 115(a) or 116(a); (5) Philips has not satisfied the technical
prong of the domestic industry requirement with respect to the '464
patent; and (6) Philips has satisfied the economic prong of the
domestic industry requirement by showing that a domestic industry is in
the process of being established.
In the Recommended Determination, the ALJ recommends that if the
Commission finds a violation it should issue a limited exclusion order
directed to Respondents' infringing products and a cease and desist
order directed to the domestic Garmin respondents and Fitbit.
On February 16, 2021, Philips petitioned, OUII petitioned and
contingently petitioned, and Respondents contingently petitioned for
review of certain aspects of the final ID. On February 24, 2021,
Philips, OUII, and Respondents each responded to the other parties'
petitions for review.
The Commission received no public interest comments from the public
in response to the Federal Register notice seeking comment on the
public interest. 86 FR 9085-86 (Feb. 11, 2021). On March 8, 2021,
Respondents submitted public interest comments pursuant to Commission
Rule 210.50(a)(4). No other party submitted public interest comments.
The Commission has determined to review the final ID in part.
Specifically, the Commission has determined to review: (1) The ID's
construction of the term ``monitor'' recited in claim 2 of the '228
patent; (2) the ID's finding of non-infringement for claim 2 of the
'228 patent; (3) the ID's finding that Philips has satisfied the
domestic industry requirement with respect to the '228 patent; (4) the
ID's finding that claim 2 of the '228 patent is not unenforceable based
on patent exhaustion; and (5) the ID's finding, with respect to the
'464 patent, that Philips has satisfied the economic prong of the
domestic industry requirement by showing that a domestic industry is in
the process of being established. The Commission has determined not to
review the remainder of the final ID.
On review, the Commission has determined to: (1) Construe the term
``monitor'' recited in claim 2 of the '228 patent to mean ``receive and
track''; (2) affirm, with modified reasoning, the ID's finding that the
accused products practice the ``monitor [ ] the sensor signals
discontinuously in time'' limitation recited in claim 2; and (3)
reverse the ID's finding that the accused products do not practice the
``monitor the sensor signals in turn'' limitation recited in claim 2.
Accordingly, the Commission finds that the accused
[[Page 20200]]
products infringe claim 2 of the '228 patent. The Commission has also
determined to reverse the ID's finding that Philips' BX-100 Biosensor
Device does not practice all limitations of the '228 patent, and
therefore finds that Philips satisfies the technical prong of the
domestic industry requirement with respect to this patent. The
Commission takes no position on the ID's finding that claim 2 of the
'228 patent is not unenforceable based on patent exhaustion. With
respect to the '464 patent, the Commission has determined to take no
position on the ID's analysis and finding regarding an industry in the
process of being established, and therefore takes no position on
whether Philips has met the economic prong requirement.
Accordingly, as the Commission does not disturb the ID's other
findings with respect to the '228 and '464 patents, the Commission has
determined to affirm the final ID's finding of no violation of section
337 with respect to these two patents.
The Commission previously determined to review two IDs the ALJ
issued on October 1, 2020: (1) Order No. 34 granting Philips' motion
for partial summary determination that complainants satisfied the
economic prong of the domestic industry requirement as to the BX-100
Biosensor Device with respect to the '228 patent; and (2) Order No. 35
granting Respondents' motion for summary determination that
Respondents' accused products do not infringe (i) asserted claims 1 and
6 of the '698 patent, and (ii) asserted claims 1 and 6 of the '464
patent with respect to the accused heart rate monitoring
functionalities. Comm'n Notice (Nov. 16, 2020). On review of the first
ID (Order No. 34), the Commission has determined to take no position on
the ID's finding that Philips has satisfied the economic prong of the
domestic industry requirement by showing that a domestic industry is in
the process of being established. The Commission has determined to
affirm the finding in Order No. 34 that an industry exists in the
United States as to the BX-100 Biosensor Device with respect to the
'228 patent. The Commission has also determined to affirm the findings
in the second ID (Order No. 35) of non-infringement with respect to the
'698 patent, and non-infringement with respect to the '464 patent for
the heart rate monitoring functionalities in the accused Fitbit and
Garmin devices. The '698 patent therefore is terminated from the
investigation with a finding of no violation of section 337.
The investigation is terminated.
The Commission vote for this determination took place on April 12,
2021.
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: April 12, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-07797 Filed 4-15-21; 8:45 am]
BILLING CODE 7020-02-P
