Certain Laparoscopic Surgical Staplers, Reload Cartridges, and Components Thereof; Final Determination Finding a Violation of Section 337 and Issuance of Remedial Orders; Suspension of Enforcement of the Remedial Orders Pending Final Resolution of a Final Written Decision by the Patent Trial and Appeal Board; and Termination of the Investigation, 58100-58101 [2021-22814]

Download as PDF lotter on DSK11XQN23PROD with NOTICES1 58100 Federal Register / Vol. 86, No. 200 / Wednesday, October 20, 2021 / Notices remedial orders are used in the United States; (ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended orders; (iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded; (iv) indicate whether complainant, complainant’s licensees, and/or thirdparty suppliers have the capacity to replace the volume of articles potentially subject to the recommended orders within a commercially reasonable time; and (v) explain how the recommended orders would impact consumers in the United States. Written submissions must be filed no later than by close of business on November 5, 2021. 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–1211’’) 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 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 VerDate Sep<11>2014 17:55 Oct 19, 2021 Jkt 256001 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. This action is taken under the authority of 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: October 14, 2021. Lisa Barton, Secretary to the Commission. [FR Doc. 2021–22815 Filed 10–19–21; 8:45 am] BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–1167] Certain Laparoscopic Surgical Staplers, Reload Cartridges, and Components Thereof; Final Determination Finding a Violation of Section 337 and Issuance of Remedial Orders; Suspension of Enforcement of the Remedial Orders Pending Final Resolution of a Final Written Decision by the Patent Trial and Appeal Board; and Termination of the Investigation U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission (the ‘‘Commission’’) has determined that: (i) The respondents have violated section 337 of the Tariff Act of 1930, as amended, by importing, selling for importation, or selling in the United States after importation certain laparoscopic surgical staplers, reload cartridges, and components thereof that infringe complainants’ U.S. Patent No. 9,844,379 (‘‘the ’379 patent’’); (2) the appropriate remedies are a limited exclusion order and cease and desist orders; and (3) enforcement of said remedial orders will be suspended pending final resolution of a Final Written Decision by the Patent Trial and Appeal Board (‘‘PTAB’’) that the asserted claims of the ’379 patent are unpatentable. This investigation is terminated. FOR FURTHER INFORMATION CONTACT: Benjamin S. Richards, Office of the General Counsel, U.S. International SUMMARY: PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 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 Commission’s electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email EDIS3 Help@usitc.gov. General information concerning the Commission may also be obtained by accessing its internet server at https://www.usitc.gov. Hearingimpaired 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; 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 Chief Administrative Law Judge (‘‘CALJ’’) 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 staplers themselves. See id. E:\FR\FM\20OCN1.SGM 20OCN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 86, No. 200 / Wednesday, October 20, 2021 / Notices On October 29, 2019, the CALJ conducted a Markman hearing. Thereafter, on January 7, 2020, the CALJ issued Order No. 15, which construed various terms in the asserted patents. On March 5, 2020, the CALJ 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 CALJ 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 CALJ issued the subject ID on violation, which found a violation of section 337 based on infringement of the asserted claims 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 CALJ issued his recommended determination on remedy and bonding. The CALJ recommended, upon a finding of violation, that the Commission issue a limited exclusion order, issue cease and desist orders, and impose a bond in the amount of zero percent (0%) 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. Intuitive’s petition included a request for suspension of enforcement of any remedial orders directed to the ’379 patent based on a Final Written Decision by the PTAB, in which the PTAB found all claims of the ’379 patent unpatentable. See Intuitive Surgical, Inc. v. Ethicon LLC, IPR2020– 00050, IPR2020–00051, Patent 9,844,379, Final Written Decision Determining All Challenged Claims Unpatentable (Mar. 26, 2021). On June 29, 2021, Ethicon and Intuitive submitted responses to the other’s petitions. On June 9, 2021, the Commission issued a notice soliciting public comments on the public interest factors, if any, that may be implicated if a remedy were to be issued in this investigation. 85 FR 30735 (May 20, 2020). The Commission received twelve submissions from the public in response to its notice. On August 16, 2021, issued notice of its determination to review the ID in part with respect to (1) the ID’s findings on claim construction, infringement, anticipation, obviousness, and enforceability for the ’969 patent; and VerDate Sep<11>2014 17:55 Oct 19, 2021 Jkt 256001 (2) the ID’s findings on claim construction, infringement, and obviousness for the ’369 patent. The Commission determined not to review the remainder of the ID, including the ID’s determination that a violation of section 337 had occurred with respect to the ’379 patent and that no violation occurred with respect to the ’874 patent. In connection with its review of the ID, the Commission sought briefing from the parties on several questions germane to the issues on review and on remedy, bonding, and the public interest. The parties filed their initial response to the Commission’s review questions on August 23, 2021, and their respective reply briefs on August 30, 2021. Having considered the parties’ submissions, the ID, and the record in this investigation, the Commission has determined that Intuitive has violated section 337 by importing into the United States, selling for importation, or selling in the United States after importation certain laparoscopic surgical staplers, reload cartridges, and components thereof that infringe claims 2 and 3 of the ’379 patent. The Commission has further determined to affirm, reverse, and take no position on certain portions of the ID, as explained in the Commission’s opinion issued concurrently herewith. The Commission has determined that the appropriate remedy is: (a) A limited exclusion order prohibiting the importation of certain laparoscopic surgical staplers, reload cartridges, and components thereof that infringe claims 2 and 3 of the ’379 patent; and (b) cease and desist orders against Intuitive. The Commission has determined that the public interest factors enumerated in section 337(d)(1) and (f)(1) do not preclude issuance of the limited exclusion order or cease and desist orders. The Commission has also determined to set a bond in the amount of zero percent (0%) (i.e., no bond) of the entered value of the excluded products imported during the period of Presidential review (19 U.S.C. 1337(j)). The Commission has also determined to suspend enforcement of its remedial orders, including the bond provision, pending final resolution of a Final Written Decision issued by the PTAB on March 26, 2021, finding all claims of the ’379 patent to be unpatentable. See 35 U.S.C. 318(b); Intuitive Surgical, Inc. v. Ethicon LLC, IPR2020–00050, IPR2020– 00051, Patent 9,844,379, Final Written Decision Determining All Challenged Claims Unpatentable (Mar. 26, 2021). The Commission’s orders and opinion were delivered to the President and United States Trade Representative on the day of their issuance. PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 58101 The Commission vote for this determination took place on October 14, 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: October 14, 2021. Lisa Barton, Secretary to the Commission. [FR Doc. 2021–22814 Filed 10–19–21; 8:45 am] BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION [Investigation Nos. 701–TA–531–532 and 731–TA–1270–1273 (Review)] Polyethylene Terephthalate (PET) Resin From Canada, China, India, and Oman; Scheduling of Full Five-Year Reviews United States International Trade Commission. ACTION: Notice. AGENCY: The Commission hereby gives notice of the scheduling of full reviews pursuant to the Tariff Act of 1930 (‘‘the Act’’) to determine whether revocation of the countervailing duty orders on polyethylene terephthalate (‘‘PET’’) resin from China and India and the antidumping duty orders on PET resin from Canada, China, India, and Oman would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. DATES: October 14, 2021. FOR FURTHER INFORMATION CONTACT: Keysha Martinez (202–205–2136), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearingimpaired persons can obtain information on this matter 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 (https:// www.usitc.gov). The public record for these reviews may be viewed on the Commission’s electronic docket (EDIS) at https://edis.usitc.gov. SUPPLEMENTARY INFORMATION: Background.—On July 7, 2021, the Commission determined that responses to its notice of institution of the subject SUMMARY: E:\FR\FM\20OCN1.SGM 20OCN1

Agencies

[Federal Register Volume 86, Number 200 (Wednesday, October 20, 2021)]
[Notices]
[Pages 58100-58101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22814]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1167]


Certain Laparoscopic Surgical Staplers, Reload Cartridges, and 
Components Thereof; Final Determination Finding a Violation of Section 
337 and Issuance of Remedial Orders; Suspension of Enforcement of the 
Remedial Orders Pending Final Resolution of a Final Written Decision by 
the Patent Trial and Appeal Board; and Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (the ``Commission'') has determined that: (i) The 
respondents have violated section 337 of the Tariff Act of 1930, as 
amended, by importing, selling for importation, or selling in the 
United States after importation certain laparoscopic surgical staplers, 
reload cartridges, and components thereof that infringe complainants' 
U.S. Patent No. 9,844,379 (``the '379 patent''); (2) the appropriate 
remedies are a limited exclusion order and cease and desist orders; and 
(3) enforcement of said remedial orders will be suspended pending final 
resolution of a Final Written Decision by the Patent Trial and Appeal 
Board (``PTAB'') that the asserted claims of the '379 patent are 
unpatentable. This investigation is terminated.

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 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; 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 Chief Administrative Law Judge (``CALJ'') 
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 staplers themselves. See id.

[[Page 58101]]

    On October 29, 2019, the CALJ conducted a Markman hearing. 
Thereafter, on January 7, 2020, the CALJ issued Order No. 15, which 
construed various terms in the asserted patents.
    On March 5, 2020, the CALJ 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 CALJ 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 CALJ issued the subject ID on violation, which 
found a violation of section 337 based on infringement of the asserted 
claims 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 CALJ issued his recommended determination on remedy and bonding. 
The CALJ recommended, upon a finding of violation, that the Commission 
issue a limited exclusion order, issue cease and desist orders, and 
impose a bond in the amount of zero percent (0%) 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. Intuitive's petition included a request for 
suspension of enforcement of any remedial orders directed to the '379 
patent based on a Final Written Decision by the PTAB, in which the PTAB 
found all claims of the '379 patent unpatentable. See Intuitive 
Surgical, Inc. v. Ethicon LLC, IPR2020-00050, IPR2020-00051, Patent 
9,844,379, Final Written Decision Determining All Challenged Claims 
Unpatentable (Mar. 26, 2021). On June 29, 2021, Ethicon and Intuitive 
submitted responses to the other's petitions.
    On June 9, 2021, the Commission issued a notice soliciting public 
comments on the public interest factors, if any, that may be implicated 
if a remedy were to be issued in this investigation. 85 FR 30735 (May 
20, 2020). The Commission received twelve submissions from the public 
in response to its notice.
    On August 16, 2021, issued notice of its determination to review 
the ID in part 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 determined not to review the remainder of the ID, including 
the ID's determination that a violation of section 337 had occurred 
with respect to the '379 patent and that no violation occurred with 
respect to the '874 patent. In connection with its review of the ID, 
the Commission sought briefing from the parties on several questions 
germane to the issues on review and on remedy, bonding, and the public 
interest.
    The parties filed their initial response to the Commission's review 
questions on August 23, 2021, and their respective reply briefs on 
August 30, 2021.
    Having considered the parties' submissions, the ID, and the record 
in this investigation, the Commission has determined that Intuitive has 
violated section 337 by importing into the United States, selling for 
importation, or selling in the United States after importation certain 
laparoscopic surgical staplers, reload cartridges, and components 
thereof that infringe claims 2 and 3 of the '379 patent. The Commission 
has further determined to affirm, reverse, and take no position on 
certain portions of the ID, as explained in the Commission's opinion 
issued concurrently herewith.
    The Commission has determined that the appropriate remedy is: (a) A 
limited exclusion order prohibiting the importation of certain 
laparoscopic surgical staplers, reload cartridges, and components 
thereof that infringe claims 2 and 3 of the '379 patent; and (b) cease 
and desist orders against Intuitive. The Commission has determined that 
the public interest factors enumerated in section 337(d)(1) and (f)(1) 
do not preclude issuance of the limited exclusion order or cease and 
desist orders. The Commission has also determined to set a bond in the 
amount of zero percent (0%) (i.e., no bond) of the entered value of the 
excluded products imported during the period of Presidential review (19 
U.S.C. 1337(j)).
    The Commission has also determined to suspend enforcement of its 
remedial orders, including the bond provision, pending final resolution 
of a Final Written Decision issued by the PTAB on March 26, 2021, 
finding all claims of the '379 patent to be unpatentable. See 35 U.S.C. 
318(b); Intuitive Surgical, Inc. v. Ethicon LLC, IPR2020-00050, 
IPR2020-00051, Patent 9,844,379, Final Written Decision Determining All 
Challenged Claims Unpatentable (Mar. 26, 2021).
    The Commission's orders and opinion were delivered to the President 
and United States Trade Representative on the day of their issuance.
    The Commission vote for this determination took place on October 
14, 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: October 14, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-22814 Filed 10-19-21; 8:45 am]
BILLING CODE 7020-02-P