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
<![CDATA[
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]
-----------------------------------------------------------------------
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
