Certain Laparoscopic Surgical Staplers, Reload Cartridges, and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, Public Interest, and Bonding, 46882-46884 [2021-17843]
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46882
Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Notices
investigation Nos. 701–TA–668–669 and
antidumping duty investigation Nos.
731–TA–1565–1566 (Preliminary).
Notice of the institution of the
Commission’s investigations and of a
public conference to be held in
connection therewith was given by
posting copies of the notice in the Office
of the Secretary, U.S. International
Trade Commission, Washington, DC,
and by publishing the notice in the
Federal Register on July 8, 2021 (86 FR
36158). In light of the restrictions on
access to the Commission building due
to the COVID–19 pandemic, the
Commission conducted its conference
through written testimony and video
conference on July 21, 2021. All persons
who requested the opportunity were
permitted to participate.
The Commission made these
determinations pursuant to §§ 703(a)
and 733(a) of the Act (19 U.S.C.
1671b(a) and 1673b(a)). It completed
and filed its determinations in these
investigations on August 16, 2021. The
views of the Commission are contained
in USITC Publication 5226 (August
2021), entitled Urea Ammonium Nitrate
Solutions from Russia and Trinidad and
Tobago: Investigation Nos. 701–TA–
668–669 and 731–TA–1565–1566
(Preliminary).
By order of the Commission.
Issued: August 16, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–17833 Filed 8–19–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 701–TA–654–655 and
731–TA–1530–1532 (Final)]
Seamless Carbon and Alloy Steel
Standard, Line, and Pressure Pipe
From Korea, Russia, and Ukraine
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Determinations
On the basis of the record 1 developed
in the subject investigations, the United
States International Trade Commission
(‘‘Commission’’) determines, pursuant
to the Tariff Act of 1930 (‘‘the Act’’),
that an industry in the United States is
materially injured by reason of imports
of seamless carbon and alloy steel
standard, line, and pressure pipe
(‘‘SSLP pipe’’) from Korea, Russia, and
Ukraine, provided for in subheadings
7304.19.10, 7304.19.50, 7304.31.60,
7304.39.00, 7304.51.50, 7304.59.60, and
1 The record is defined in § 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
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7304.59.80 of the Harmonized Tariff
Schedule of the United States, that have
been found by the U.S. Department of
Commerce (‘‘Commerce’’) to be sold in
the United States at less than fair value
(‘‘LTFV’’) and to be subsidized by the
governments of Korea and Russia.2
Background
The Commission instituted the
antidumping and countervailing duty
investigations effective July 8, 2020,
following receipt of petitions filed with
the Commission and Commerce by
Vallourec Star, LP, Houston, Texas. The
Commission established a general
schedule for the conduct of the final
phase of its investigations on SSLP pipe
from the Czech Republic (‘‘Czechia’’),
Korea, Russia, and Ukraine following
notification of preliminary
determinations by Commerce that
imports of SSLP pipe from Korea and
Russia were subsidized within the
meaning of section 703(b) of the Act (19
U.S.C. 1671b(b)) and imports of SSLP
pipe from Czechia were sold at LTFV
within the meaning of 733(b) of the Act
(19 U.S.C. 1673b(b)). Notice of the
scheduling of the final phase of the
Commission’s investigations and of a
public hearing to be held in connection
therewith was given by posting copies
of the notice in the Office of the
Secretary, U.S. International Trade
Commission, Washington, DC, and by
publishing the notice in the Federal
Register on December 31, 2020 (85 FR
86946). In light of the restrictions on
access to the Commission building due
to the COVID–19 pandemic, the
Commission conducted its hearing
through written testimony and video
conference on March 4, 2021. All
persons who requested the opportunity
were permitted to participate.
The investigation schedules became
staggered when Commerce did not
postpone its preliminary determination
in the antidumping duty investigation
with respect to Czechia (85 FR 83059,
December 21, 2020). On April 19, 2021,
the Commission issued a final
affirmative determination in its
antidumping duty investigation of SSLP
pipe from Czechia (86 FR 21763).
Following notification of final
determinations by Commerce that
imports of SSLP pipe from Korea,
Russia, and Ukraine were being sold at
LTFV within the meaning of section
735(a) of the Act (19 U.S.C. 1673d(a)),
and subsidized by the governments of
Korea and Russia within the meaning of
section 705(a) of the Act (19 U.S.C.
1671d(a)), notice of the supplemental
scheduling of the final phase of the
2 86
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Commission’s antidumping and
countervailing duty investigations was
given by posting copies of the notice in
the Office of the Secretary, U.S.
International Trade Commission,
Washington, DC, and by publishing the
notice in the Federal Register of July 13,
2021 (86 FR 36772).
The Commission made these
determinations pursuant to §§ 705(b)
and 735(b) of the Act (19 U.S.C.
1671d(b) and 19 U.S.C. 1673d(b)). It
completed and filed its determinations
in these investigations on August 16,
2021. The views of the Commission are
contained in USITC Publication 5222
(August 2021), entitled Seamless
Carbon and Alloy Steel Standard, Line,
And Pressure Pipe from Korea, Russia,
and Ukraine: Investigation Nos. 701–
TA–654–655 and 731–TA–1530–1532
(Final).
By order of the Commission.
Issued: August 16, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–17845 Filed 8–19–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1178]
Certain Laparoscopic Surgical
Staplers, Reload Cartridges, and
Components Thereof; Commission
Determination To Review in Part a
Final Initial Determination Finding a
Violation of Section 337; Schedule for
Filing Written Submissions on the
Issues Under Review and on Remedy,
Public Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
in part the Administrative Law Judge’s
(‘‘ALJ’’) final initial determination
(‘‘ID’’), issued on June 8, 2021, finding
a violation of section 337 in the abovereferenced investigation as to two of the
four asserted patents. The Commission
requests briefing from the parties on
certain issues under review, as
indicated in this notice.
FOR FURTHER INFORMATION CONTACT:
Benjamin S. Richards, Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
708–5453. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
SUMMARY:
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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 on (202)
205–1810.
The
Commission instituted this investigation
on July 5, 2019, based on a complaint
filed by Ethicon LLC of Guaynabo, PR;
Ethicon Endo-surgery, Inc. of
Cincinnati, OH; and Ethicon US, LLC of
Cincinnati, OH (collectively,
‘‘Ethicon’’). 84 FR 32220 (July 5, 2019);
see also 84 FR 65174 (Nov. 26, 2019)
(amending the caption). The complaint
alleged violations of section 337 of the
Tariff Act of 1930, as amended, 19
U.S.C. 1337, based on the importation
into the United States, the sale for
importation, and the sale within the
United States after importation of
certain laparoscopic surgical staplers,
reload cartridges, and components
thereof by reason of infringement of one
or more claims of U.S. Patent Nos.
9,844,379 (‘‘the ’379 patent’’) ; 9,844,369
(‘‘the ’369 patent’’); 7,490,749 (‘‘the ’749
patent’’); 8,479,969 (‘‘the ’969 patent’’);
and 9,113,874 (‘‘the ’874 patent’’). 84 FR
at 32220. The Commission’s notice of
investigation named the following as
respondents: Intuitive Surgical Inc., of
Sunnyvale, CA; Intuitive Surgical
Operations, Inc., of Sunnyvale, CA;
Intuitive Surgical Holdings, LLC, of
Sunnyvale, CA; and Intuitive Surgical S.
De R.L. De C.V. of Mexicali, Mexico
(collectively, ‘‘Intuitive’’). Id. The Office
of Unfair Import Investigations is not
participating in this investigation. Id.
On October 23, 2020, the ALJ granted
Ethicon’s motion for leave to amend the
complaint, case caption, and Notice of
Investigation to reinstate the original
plain English statement of the category
of accused products, as well as the
original case caption, and to
reincorporate Intuitive’s laparoscopic
surgical staplers and components
thereof as articles to be excluded. Order
No. 14, unreviewed by Comm’n Notice
(Nov. 21, 2019). As initially instituted,
the investigation covered reload
cartridges for those staplers, but not the
actual staplers themselves. See id.
On October 29, 2019, the ALJ
conducted a Markman hearing.
Thereafter, on January 7, 2020, the ALJ
issued Order No. 15, which construed
various terms in the asserted patents.
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SUPPLEMENTARY INFORMATION:
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On March 5, 2020, the ALJ granted
Ethicon’s motion to terminate claim 1 of
the ’379 patent and all claims of the ’749
patent from the investigation. See Order
No. 21, unreviewed by Comm’n Notice
(Mar. 25, 2020).
On April 21, 2020, Ethicon moved for
leave to file a second amended
complaint to include the Certificate of
Correction for the ’379 patent. The ALJ
granted Ethicon’s motion on May 6,
2020, and Ethicon filed its second
amended complaint on May 7, 2020. See
Order No. 36; Doc. ID 709878.
On June 8, 2021, the ALJ issued the
subject ID on violation, which found a
violation of section 337 based on
infringement of the ’369 and ’379
patents by Intuitive. The ID found no
violation based on the ’969 and 874
patents. Also, on June 8, 2021, the ALJ
issued his recommended determination
on remedy and bonding. The ALJ
recommended, upon a finding of
violation, that the Commission issue a
limited exclusion order, issue a cease
and desist order, and impose a bond in
the amount of zero percent of the
entered value of any covered products
imported during the period of
Presidential review.
On June 21, 2021, Ethicon and
Intuitive submitted petitions seeking
review of the subject ID. On June 29,
2021, Ethicon and Intuitive submitted
responses to the others’ petitions.
Having examined the record of this
investigation, including the ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the ID with respect to (1) the
ID’s findings on claim construction,
infringement, anticipation, obviousness,
and enforceability for the ’969 patent;
and (2) the ID’s findings on claim
construction, infringement, and
obviousness for the ’369 patent. The
Commission has determined not to
review the remainder of the ID.
In connection with its review,
Commission requests responses to the
following questions. The parties are
requested to brief their positions with
reference to the applicable law and the
existing evidentiary record.
1. Claim 24 of the ’969 patent
includes the terms ‘‘elongated shaft
assembly’’ and ‘‘transmission
assembly.’’ Concerning these terms,
identify where in the record, if
anywhere:
a. The parties proposed constructions
for these terms;
b. The parties argued in support of
any constructions proposed; and
c. The ALJ construed these terms.
2. Concerning the terms ‘‘elongated
shaft assembly’’ and ‘‘transmission
assembly,’’ indicate whether these terms
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46883
should be construed according to their
plain and ordinary meaning. If these
terms should be construed according to
their plain and ordinary meaning, what
is the plain and ordinary meaning of
each term? If these terms should be
construed otherwise, identify the correct
mode of construction and the
corresponding construction for each
term. Identify with specificity the
evidence of record that supports your
contentions with particular emphasis on
evidence intrinsic to the ’969 patent.
a. Explain whether the SureForm
products meet these limitations under
the parties’ proposed constructions.
3. Does the evidence of record support
the conclusion that persons of ordinary
skill in the art with respect to the ’969
patent were responsible for the decision
to create a joint venture between PMI
and Intuitive for the purpose of
modifying the PMI i60 stapler to work
with the da Vinci Si surgical system?
Provide any citations to the record that
support your contention.
4. Does the record indicate whether
the Si EndoWrist 45 stapler is the
subject of one or more patents? Identify
any such patents.
5. Claim 22 of the ’369 patent
includes the term ‘‘elongate channel.’’
Concerning that term, identify where in
the record, if anywhere:
a. The parties proposed constructions
for that term;
b. The parties argued in support of
any constructions proposed; and
c. The ALJ construed that term.
6. Concerning the term ‘‘elongate
channel,’’ indicate whether these terms
should be construed according to its
plain and ordinary meaning? If this term
should be construed according to its
plain and ordinary meaning, what is the
plain and ordinary meaning of the term?
If the term should be construed
otherwise, identify the correct mode of
construction and the corresponding
construction. Identify with specificity
the evidence of record that supports
your contentions with particular
emphasis on evidence intrinsic to the
’369 patent.
a. Explain whether the SureForm
products meet this limitation under the
parties’ proposed constructions.
7. Claim 22 of the ’369 patent
includes the limitation: ‘‘means for
guiding the at least one lower foot on
the firing element out of the proximal
channel opening into the internal
passage upon initial application of a
firing motion to the firing element.’’ If
the Commission determines that the
corresponding structure for that
limitation is limited to flat, as opposed
to curved, chamfers and slopes, would
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the accused products practice this
limitation?
8. Concerning claims 22 and 23 of the
’369 patent, Intuitive states in its
petition for review that its proposed
obviousness combination ‘‘includes
each limitation of the asserted claims
under Ethicon’s theory of
infringement.’’ Identify what aspect of
Intuitive’s obviousness theory is
dependent on Ethicon’s theory of
infringement and explain how it is
dependent.
9. If the Commission finds that
Intuitive does not infringe claims 22 and
23 of the ’369 patent, explain whether
Intuitive’s obviousness theories
necessarily fail by virtue of their
dependence on Ethicon’s infringement
theory.
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
statute authorizes issuance of, inter alia,
(1) an exclusion order that could result
in the exclusion of the subject articles
from entry into the United States; and/
or (2) cease and desist orders that could
result in the respondents being required
to cease and desist from engaging in
unfair acts in the importation and sale
of such articles. Accordingly, the
Commission is interested in receiving
written submissions that address the
form of remedy, if any, that should be
ordered. If a party seeks exclusion of an
article from entry into the United States
for purposes other than entry for
consumption, the party should so
indicate and provide information
establishing that activities involving
other types of entry either are adversely
affecting it or likely to do so. For
background, see Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. at 7–10
(Dec. 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 U.S. Trade
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Representative, as delegated by the
President, has 60 days to approve,
disapprove or take no action on the
Commission’s determination. 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.
In its initial submission, Complainant
is also requested to identify the remedy
sought and to submit proposed remedial
orders for the Commission’s
consideration. Complainant is further
requested to state the dates that the
Asserted Patents expire, to provide the
HTSUS subheadings under which the
accused products are imported, and to
supply the identification information for
all known importers of the products at
issue in this investigation. The initial
written submissions and proposed
remedial orders must be filed no later
than close of business on August 23,
2021. Reply submissions must be filed
no later than the close of business on
August 30, 2021. Opening submissions
are limited to 100 pages. Reply
submissions are limited to 75 pages. 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. The Commission’s paper
filing requirements in 19 CFR 210.4(f)
are currently waived. 85 FR 15798
(March 19, 2020). Submissions should
refer to the investigation number (Inv.
No. 337–TA–1167) in a prominent place
on the cover page and/or the first page.
(See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.pdf). Persons with questions
regarding filing should contact the
Secretary, (202) 205–2000.
Any person desiring to submit a
document to the Commission in
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confidence must request confidential
treatment by marking each document
with a header indicating that the
document contains confidential
information. This marking will be
deemed to satisfy the request procedure
set forth in Rules 201.6(b) and
210.5(e)(2) (19 CFR 201.6(b) &
210.5(e)(2)). 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 information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. appendix 3; or (ii) by U.S.
government employees and contract
personnel, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. All nonconfidential written
submissions will be available for public
inspection on EDIS.
The Commission vote for this
determination took place on August 16,
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 210).
By order of the Commission.
Issued: August 16, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–17843 Filed 8–19–21; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
Investigation Nos. 701–TA–468 and
731–TA–1166–1167 (Second Review);
Certain Magnesia Carbon Bricks From
China and Mexico
Determination
On the basis of the record 1 developed
in the subject five-year reviews, the
1 The record is defined in § 207.2(f) of the
Commission’s Rules of Practice and Procedure (19
CFR 207.2(f)).
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]]>Agencies
[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
[Notices]
[Pages 46882-46884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17843]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1178]
Certain Laparoscopic Surgical Staplers, Reload Cartridges, and
Components Thereof; Commission Determination To Review in Part a Final
Initial Determination Finding a Violation of Section 337; Schedule for
Filing Written Submissions on the Issues Under Review and on Remedy,
Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the Administrative Law
Judge's (``ALJ'') final initial determination (``ID''), issued on June
8, 2021, finding a violation of section 337 in the above-referenced
investigation as to two of the four asserted patents. The Commission
requests briefing from the parties on certain issues under review, as
indicated in this notice.
FOR FURTHER INFORMATION CONTACT: Benjamin S. Richards, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5453. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the
[[Page 46883]]
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 on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on July 5, 2019, based on a complaint filed by Ethicon LLC of Guaynabo,
PR; Ethicon Endo-surgery, Inc. of Cincinnati, OH; and Ethicon US, LLC
of Cincinnati, OH (collectively, ``Ethicon''). 84 FR 32220 (July 5,
2019); see also 84 FR 65174 (Nov. 26, 2019) (amending the caption). The
complaint alleged violations of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, based on the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain laparoscopic surgical staplers, reload
cartridges, and components thereof by reason of infringement of one or
more claims of U.S. Patent Nos. 9,844,379 (``the '379 patent'') ;
9,844,369 (``the '369 patent''); 7,490,749 (``the '749 patent'');
8,479,969 (``the '969 patent''); and 9,113,874 (``the '874 patent'').
84 FR at 32220. The Commission's notice of investigation named the
following as respondents: Intuitive Surgical Inc., of Sunnyvale, CA;
Intuitive Surgical Operations, Inc., of Sunnyvale, CA; Intuitive
Surgical Holdings, LLC, of Sunnyvale, CA; and Intuitive Surgical S. De
R.L. De C.V. of Mexicali, Mexico (collectively, ``Intuitive''). Id. The
Office of Unfair Import Investigations is not participating in this
investigation. Id.
On October 23, 2020, the ALJ granted Ethicon's motion for leave to
amend the complaint, case caption, and Notice of Investigation to
reinstate the original plain English statement of the category of
accused products, as well as the original case caption, and to
reincorporate Intuitive's laparoscopic surgical staplers and components
thereof as articles to be excluded. Order No. 14, unreviewed by Comm'n
Notice (Nov. 21, 2019). As initially instituted, the investigation
covered reload cartridges for those staplers, but not the actual
staplers themselves. See id.
On October 29, 2019, the ALJ conducted a Markman hearing.
Thereafter, on January 7, 2020, the ALJ issued Order No. 15, which
construed various terms in the asserted patents.
On March 5, 2020, the ALJ granted Ethicon's motion to terminate
claim 1 of the '379 patent and all claims of the '749 patent from the
investigation. See Order No. 21, unreviewed by Comm'n Notice (Mar. 25,
2020).
On April 21, 2020, Ethicon moved for leave to file a second amended
complaint to include the Certificate of Correction for the '379 patent.
The ALJ granted Ethicon's motion on May 6, 2020, and Ethicon filed its
second amended complaint on May 7, 2020. See Order No. 36; Doc. ID
709878.
On June 8, 2021, the ALJ issued the subject ID on violation, which
found a violation of section 337 based on infringement of the '369 and
'379 patents by Intuitive. The ID found no violation based on the '969
and 874 patents. Also, on June 8, 2021, the ALJ issued his recommended
determination on remedy and bonding. The ALJ recommended, upon a
finding of violation, that the Commission issue a limited exclusion
order, issue a cease and desist order, and impose a bond in the amount
of zero percent of the entered value of any covered products imported
during the period of Presidential review.
On June 21, 2021, Ethicon and Intuitive submitted petitions seeking
review of the subject ID. On June 29, 2021, Ethicon and Intuitive
submitted responses to the others' petitions.
Having examined the record of this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review the ID with respect to (1) the ID's findings on
claim construction, infringement, anticipation, obviousness, and
enforceability for the '969 patent; and (2) the ID's findings on claim
construction, infringement, and obviousness for the '369 patent. The
Commission has determined not to review the remainder of the ID.
In connection with its review, Commission requests responses to the
following questions. The parties are requested to brief their positions
with reference to the applicable law and the existing evidentiary
record.
1. Claim 24 of the '969 patent includes the terms ``elongated shaft
assembly'' and ``transmission assembly.'' Concerning these terms,
identify where in the record, if anywhere:
a. The parties proposed constructions for these terms;
b. The parties argued in support of any constructions proposed; and
c. The ALJ construed these terms.
2. Concerning the terms ``elongated shaft assembly'' and
``transmission assembly,'' indicate whether these terms should be
construed according to their plain and ordinary meaning. If these terms
should be construed according to their plain and ordinary meaning, what
is the plain and ordinary meaning of each term? If these terms should
be construed otherwise, identify the correct mode of construction and
the corresponding construction for each term. Identify with specificity
the evidence of record that supports your contentions with particular
emphasis on evidence intrinsic to the '969 patent.
a. Explain whether the SureForm products meet these limitations
under the parties' proposed constructions.
3. Does the evidence of record support the conclusion that persons
of ordinary skill in the art with respect to the '969 patent were
responsible for the decision to create a joint venture between PMI and
Intuitive for the purpose of modifying the PMI i60 stapler to work with
the da Vinci Si surgical system? Provide any citations to the record
that support your contention.
4. Does the record indicate whether the Si EndoWrist 45 stapler is
the subject of one or more patents? Identify any such patents.
5. Claim 22 of the '369 patent includes the term ``elongate
channel.'' Concerning that term, identify where in the record, if
anywhere:
a. The parties proposed constructions for that term;
b. The parties argued in support of any constructions proposed; and
c. The ALJ construed that term.
6. Concerning the term ``elongate channel,'' indicate whether these
terms should be construed according to its plain and ordinary meaning?
If this term should be construed according to its plain and ordinary
meaning, what is the plain and ordinary meaning of the term? If the
term should be construed otherwise, identify the correct mode of
construction and the corresponding construction. Identify with
specificity the evidence of record that supports your contentions with
particular emphasis on evidence intrinsic to the '369 patent.
a. Explain whether the SureForm products meet this limitation under
the parties' proposed constructions.
7. Claim 22 of the '369 patent includes the limitation: ``means for
guiding the at least one lower foot on the firing element out of the
proximal channel opening into the internal passage upon initial
application of a firing motion to the firing element.'' If the
Commission determines that the corresponding structure for that
limitation is limited to flat, as opposed to curved, chamfers and
slopes, would
[[Page 46884]]
the accused products practice this limitation?
8. Concerning claims 22 and 23 of the '369 patent, Intuitive states
in its petition for review that its proposed obviousness combination
``includes each limitation of the asserted claims under Ethicon's
theory of infringement.'' Identify what aspect of Intuitive's
obviousness theory is dependent on Ethicon's theory of infringement and
explain how it is dependent.
9. If the Commission finds that Intuitive does not infringe claims
22 and 23 of the '369 patent, explain whether Intuitive's obviousness
theories necessarily fail by virtue of their dependence on Ethicon's
infringement theory.
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
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States; and/or (2) cease and desist orders that could result
in the respondents being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or likely to do so.
For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op.
at 7-10 (Dec. 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 U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove or take no action on the Commission's determination. 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.
In its initial submission, Complainant is also requested to
identify the remedy sought and to submit proposed remedial orders for
the Commission's consideration. Complainant is further requested to
state the dates that the Asserted Patents expire, to provide the HTSUS
subheadings under which the accused products are imported, and to
supply the identification information for all known importers of the
products at issue in this investigation. The initial written
submissions and proposed remedial orders must be filed no later than
close of business on August 23, 2021. Reply submissions must be filed
no later than the close of business on August 30, 2021. Opening
submissions are limited to 100 pages. Reply submissions are limited to
75 pages. 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. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1167) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.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 by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). 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 information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on August 16,
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
210).
By order of the Commission.
Issued: August 16, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-17843 Filed 8-19-21; 8:45 am]
BILLING CODE 7020-02-P
