Certain Light-Based Physiological Measurement Devices and Components Thereof; Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and a Cease and Desist Order; Termination of the Investigation, 75032-75033 [2023-24071]
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75032
Federal Register / Vol. 88, No. 210 / Wednesday, November 1, 2023 / Notices
the information, on an aggregate basis,
for the firms which are members of your
association.
(a) Production (quantity) and, if
known, an estimate of the percentage of
total production of Subject Merchandise
in each Subject Country accounted for
by your firm’s(s’) production;
(b) Capacity (quantity) of your firm(s)
to produce the Subject Merchandise in
each Subject Country (that is, the level
of production that your establishment(s)
could reasonably have expected to
attain during the year, assuming normal
operating conditions (using equipment
and machinery in place and ready to
operate), normal operating levels (hours
per week/weeks per year), time for
downtime, maintenance, repair, and
cleanup, and a typical or representative
product mix); and
(c) the quantity and value of your
firm’s(s’) exports to the United States of
Subject Merchandise and, if known, an
estimate of the percentage of total
exports to the United States of Subject
Merchandise from each Subject Country
accounted for by your firm’s(s’) exports.
(12) Identify significant changes, if
any, in the supply and demand
conditions or business cycle for the
Domestic Like Product that have
occurred in the United States or in the
market for the Subject Merchandise in
each Subject Country after 2017, and
significant changes, if any, that are
likely to occur within a reasonably
foreseeable time. Supply conditions to
consider include technology;
production methods; development
efforts; ability to increase production
(including the shift of production
facilities used for other products and the
use, cost, or availability of major inputs
into production); and factors related to
the ability to shift supply among
different national markets (including
barriers to importation in foreign
markets or changes in market demand
abroad). Demand conditions to consider
include end uses and applications; the
existence and availability of substitute
products; and the level of competition
among the Domestic Like Product
produced in the United States, Subject
Merchandise produced in each Subject
Country, and such merchandise from
other countries.
(13) (OPTIONAL) A statement of
whether you agree with the above
definitions of the Domestic Like Product
and Domestic Industry; if you disagree
with either or both of these definitions,
please explain why and provide
alternative definitions.
Authority: This proceeding is being
conducted under authority of title VII of
the Tariff Act of 1930; this notice is
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19:48 Oct 31, 2023
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published pursuant to § 207.61 of the
Commission’s rules.
By order of the Commission.
Issued: October 26, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023–24018 Filed 10–31–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1276]
Certain Light-Based Physiological
Measurement Devices and
Components Thereof; Notice of the
Commission’s Final Determination
Finding a Violation of Section 337;
Issuance of a Limited Exclusion Order
and a Cease and Desist Order;
Termination of the Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has found a violation of
section 337 in the above-captioned
investigation. The Commission has
determined to issue: a limited exclusion
order (‘‘LEO’’) prohibiting the
unlicensed entry of infringing wearable
electronic devices with light-based
pulse oximetry functionality and
components thereof covered by certain
claims of U.S. Patent Nos. 10,912,502 or
10,945,648 that are manufactured by or
on behalf of, or imported by or on behalf
of, respondent Apple, Inc. (‘‘Apple’’) or
any of its affiliated companies, parents,
subsidiaries, or other related business
entities, or its successors or assigns; and
a cease and desist order (‘‘CDO’’)
directed against Apple and any of its
affiliated companies, parents,
subsidiaries, or other related business
entities, or its successors or assigns.
This investigation is terminated.
FOR FURTHER INFORMATION CONTACT:
Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3427. 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
SUMMARY:
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obtained by contacting the
Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on August 18, 2021, based on a
complaint filed on behalf of Masimo
Corporation and Cercacor Laboratories,
Inc., both of Irvine, CA (collectively,
‘‘Complainants’’). 86 FR 46275 (Aug. 18,
2021). The complaint, as amended,
alleged 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 light-based physiological
measurement devices and components
thereof by reason of infringement of
certain claims of U.S. Patent No.
10,912,501 (‘‘the ’501 patent’’); U.S.
Patent No. 10,912,502 (‘‘the ’502
patent’’); U.S. Patent No. 10,945,648
(‘‘the ’648 patent’’); U.S. Patent No.
10,687,745 (‘‘the ’745 patent’’); and U.S.
Patent No. 7,761,127 (‘‘the ’127 patent’’).
Id. The amended complaint further
alleged that an industry in the United
States exists and/or is in the process of
being established as required by section
337. Id. The notice of investigation
named Apple of Cupertino, California as
the sole respondent. Id. at 46276. The
Office of Unfair Import Investigations is
not participating in this investigation.
Id.
Complainants previously withdrew
certain asserted claims pursuant to
Order No. 25 (Mar. 23, 2022),
unreviewed by Comm’n Notice (Apr. 12,
2022), and Order No. 33 (May 20, 2022),
unreviewed by Comm’n Notice (June 10,
2022). Only claim 12 of the ’501 patent,
claims 22 and 28 of the ’502 patent,
claims 12, 24, and 30 of the ’648 patent,
claims 9, 18, and 27 of the ’745 patent,
and claim 9 of the ’127 patent remain in
the investigation. Claim 18 of the ’745
patent is still at issue for purposes of the
domestic industry only.
On January 10, 2023, the presiding
administrative law judge (‘‘ALJ’’) issued
the final initial determination (‘‘Final
ID’’), which found that Apple violated
section 337 as to claims 24 and 30 of the
’648 patent, but not as to claim 12 of the
’501 patent, claims 22 and 28 of the ’502
patent, claim 12 of the ’648 patent,
claims 9 and 27 of the ’745 patent, and
claim 9 of the ’127 patent. See Final ID
at 335–36. On January 24, 2023, the ALJ
issued a Recommended Determination
on remedy and bonding (‘‘RD’’) should
a violation be found in the abovecaptioned investigation. The RD
recommended that, if the Commission
finds a violation, it should issue an LEO
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Federal Register / Vol. 88, No. 210 / Wednesday, November 1, 2023 / Notices
directed to certain wearable electronic
devices with light-based pulse oximetry
functionality and components thereof
that are imported, sold for importation,
and/or sold after importation by Apple;
and a CDO directed to Apple. RD at 2,
5. The RD additionally recommended
that the Commission set a zero percent
(0%) bond (i.e., no bond) during the
sixty-day period of Presidential review.
Id. at 6. In its notice instituting this
investigation, the Commission did not
instruct the ALJ to make findings and
recommendations concerning the public
interest. See 86 FR at 46275–76.
On January 23, 2023, Complainants
and Apple each filed a petition for
review. On January 31, 2023,
Complainants and Apple each filed
responses to the other party’s petitions.
On February 23, 2023, the parties
filed their public interest statements
pursuant to 19 CFR 210.50(a)(4). The
Commission received numerous
comments on the public interest from
non-parties.
On May 15, 2023, after considering
the parties’ petitions and responses
thereto, the Commission determined to
review the Final ID in part. See 88 FR
32243, 32243–46 (May 19, 2023). In
particular, the Commission determined
to review the following findings of the
Final ID:
(1) the domestic industry with regard
to the ’501 patent, the ’502 patent, the
’648 patent, and the ’745 patent;
(2) obviousness with regard to the
’501 patent, the ’502 patent, the ’648
patent, and the ’745 patent;
(3) written description with regard to
claim 28 of the ’502 patent and claim 12
of the ’648 patent;
(4) claim construction and
infringement with regard to the ’745
patent; and
(5) subject matter jurisdiction.
Id. The Commission requested
briefing on certain issues under review
and on remedy, the public interest, and
bonding. See id.
On June 5, 2023, the parties filed their
written submissions on the issues under
review and on remedy, public interest,
and bonding, and on June 12, 2023, the
parties filed their reply submissions.
The Commission also received
numerous comments on the public
interest from non-parties.
Having reviewed the record in this
investigation, including the written
submissions of the parties, the
Commission affirms with modifications
the Final ID’s domestic industry
findings (both economic and technical
prong) as to the ’501, ’502, ’648, and
’745 patents. The Commission
additionally affirms with modifications
the Final ID’s conclusion that the
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19:48 Oct 31, 2023
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asserted claims of the ’501 patent are
obvious, but the asserted claims of the
’502, ’648, and ’745 patents are not
obvious. The Commission has
determined to reverse the Final ID’s
finding that Apple proved by clear and
convincing evidence that claim 28 of the
’502 patent and claim 12 of the ’648
patent are invalid for lack of written
description. Furthermore, the
Commission affirms the Final ID’s claim
construction related to the recited term
‘‘first shape’’ and the related conclusion
that the Accused Products do not satisfy
elements [1B] and [20B] of the ’745
patent. The Commission additionally
vacates the Final ID’s finding that the
Commission has subject matter
jurisdiction over the investigation and
instead finds that the Commission has
statutory authority over the
investigation. The Commission affirms
the remainder of the Final ID that is not
inconsistent with the Commission’s
opinion issued concurrently herewith.
As a result, the Commission finds that
Apple has violated section 337 as to
claims 22 and 28 of the ’502 patent and
claims 12, 24, and 30 of the ’648 patent.
The Commission has determined that
the appropriate form of relief is an LEO
prohibiting (1) the unlicensed entry of
infringing wearable electronic devices
with light-based pulse oximetry
functionality and components thereof
manufactured by or on behalf of Apple
or any of its affiliated companies,
parents, subsidiaries, or other related
business entities, or its successors or
assigns. The Commission has also
determined to issue a CDO against
Apple. The Commission has determined
to include an exemption to the remedial
orders for service or repair or, under
warranty terms, replacement of products
purchased prior to the end of the period
of Presidential review.
The Commission has further
determined that the public interest
factors enumerated in subsections (d)(l)
and (f)(1) (19 U.S.C. 1337(d)(l), (f)(1)) do
not preclude issuance of the abovereferenced remedial orders.
Additionally, the Commission has
determined to impose a bond of zero
(0%) (i.e., no bond) of entered value of
the covered products during the period
of Presidential review (19 U.S.C.
1337(j)). This investigation is
terminated.
The Commission vote for this
determination took place on October 26,
2023.
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
PO 00000
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75033
Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: October 26, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023–24071 Filed 10–31–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 731–TA–873–875, 878–
880, and 882 (Fourth Review)]
Steel Concrete Reinforcing Bar From
Belarus, China, Indonesia, Latvia,
Moldova, Poland, and Ukraine;
Institution of Five-Year Reviews
United States International
Trade Commission.
ACTION: Notice.
AGENCY:
The Commission hereby gives
notice that it has instituted reviews
pursuant to the Tariff Act of 1930 (‘‘the
Act’’), as amended, to determine
whether revocation of the antidumping
duty orders on steel concrete reinforcing
bar from Belarus, China, Indonesia,
Latvia, Moldova, Poland, and Ukraine
would be likely to lead to continuation
or recurrence of material injury.
Pursuant to the Act, interested parties
are requested to respond to this notice
by submitting the information specified
below to the Commission.
DATES: Instituted November 1, 2023. To
be assured of consideration, the
deadline for responses is December 1,
2023. Comments on the adequacy of
responses may be filed with the
Commission by January 11, 2024.
FOR FURTHER INFORMATION CONTACT:
Lawrence Jones (202–205–3358), 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
this proceeding may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION:
Background.—On September 7, 2001,
the Department of Commerce
(‘‘Commerce’’) issued antidumping duty
SUMMARY:
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]]>Agencies
[Federal Register Volume 88, Number 210 (Wednesday, November 1, 2023)]
[Notices]
[Pages 75032-75033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24071]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1276]
Certain Light-Based Physiological Measurement Devices and
Components Thereof; Notice of the Commission's Final Determination
Finding a Violation of Section 337; Issuance of a Limited Exclusion
Order and a Cease and Desist Order; Termination of the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has found a violation of section 337 in the above-captioned
investigation. The Commission has determined to issue: a limited
exclusion order (``LEO'') prohibiting the unlicensed entry of
infringing wearable electronic devices with light-based pulse oximetry
functionality and components thereof covered by certain claims of U.S.
Patent Nos. 10,912,502 or 10,945,648 that are manufactured by or on
behalf of, or imported by or on behalf of, respondent Apple, Inc.
(``Apple'') or any of its affiliated companies, parents, subsidiaries,
or other related business entities, or its successors or assigns; and a
cease and desist order (``CDO'') directed against Apple and any of its
affiliated companies, parents, subsidiaries, or other related business
entities, or its successors or assigns. This investigation is
terminated.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. 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 August 18, 2021, based on a complaint filed on behalf of Masimo
Corporation and Cercacor Laboratories, Inc., both of Irvine, CA
(collectively, ``Complainants''). 86 FR 46275 (Aug. 18, 2021). The
complaint, as amended, alleged 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 light-based
physiological measurement devices and components thereof by reason of
infringement of certain claims of U.S. Patent No. 10,912,501 (``the
'501 patent''); U.S. Patent No. 10,912,502 (``the '502 patent''); U.S.
Patent No. 10,945,648 (``the '648 patent''); U.S. Patent No. 10,687,745
(``the '745 patent''); and U.S. Patent No. 7,761,127 (``the '127
patent''). Id. The amended complaint further alleged that an industry
in the United States exists and/or is in the process of being
established as required by section 337. Id. The notice of investigation
named Apple of Cupertino, California as the sole respondent. Id. at
46276. The Office of Unfair Import Investigations is not participating
in this investigation. Id.
Complainants previously withdrew certain asserted claims pursuant
to Order No. 25 (Mar. 23, 2022), unreviewed by Comm'n Notice (Apr. 12,
2022), and Order No. 33 (May 20, 2022), unreviewed by Comm'n Notice
(June 10, 2022). Only claim 12 of the '501 patent, claims 22 and 28 of
the '502 patent, claims 12, 24, and 30 of the '648 patent, claims 9,
18, and 27 of the '745 patent, and claim 9 of the '127 patent remain in
the investigation. Claim 18 of the '745 patent is still at issue for
purposes of the domestic industry only.
On January 10, 2023, the presiding administrative law judge
(``ALJ'') issued the final initial determination (``Final ID''), which
found that Apple violated section 337 as to claims 24 and 30 of the
'648 patent, but not as to claim 12 of the '501 patent, claims 22 and
28 of the '502 patent, claim 12 of the '648 patent, claims 9 and 27 of
the '745 patent, and claim 9 of the '127 patent. See Final ID at 335-
36. On January 24, 2023, the ALJ issued a Recommended Determination on
remedy and bonding (``RD'') should a violation be found in the above-
captioned investigation. The RD recommended that, if the Commission
finds a violation, it should issue an LEO
[[Page 75033]]
directed to certain wearable electronic devices with light-based pulse
oximetry functionality and components thereof that are imported, sold
for importation, and/or sold after importation by Apple; and a CDO
directed to Apple. RD at 2, 5. The RD additionally recommended that the
Commission set a zero percent (0%) bond (i.e., no bond) during the
sixty-day period of Presidential review. Id. at 6. In its notice
instituting this investigation, the Commission did not instruct the ALJ
to make findings and recommendations concerning the public interest.
See 86 FR at 46275-76.
On January 23, 2023, Complainants and Apple each filed a petition
for review. On January 31, 2023, Complainants and Apple each filed
responses to the other party's petitions.
On February 23, 2023, the parties filed their public interest
statements pursuant to 19 CFR 210.50(a)(4). The Commission received
numerous comments on the public interest from non-parties.
On May 15, 2023, after considering the parties' petitions and
responses thereto, the Commission determined to review the Final ID in
part. See 88 FR 32243, 32243-46 (May 19, 2023). In particular, the
Commission determined to review the following findings of the Final ID:
(1) the domestic industry with regard to the '501 patent, the '502
patent, the '648 patent, and the '745 patent;
(2) obviousness with regard to the '501 patent, the '502 patent,
the '648 patent, and the '745 patent;
(3) written description with regard to claim 28 of the '502 patent
and claim 12 of the '648 patent;
(4) claim construction and infringement with regard to the '745
patent; and
(5) subject matter jurisdiction.
Id. The Commission requested briefing on certain issues under
review and on remedy, the public interest, and bonding. See id.
On June 5, 2023, the parties filed their written submissions on the
issues under review and on remedy, public interest, and bonding, and on
June 12, 2023, the parties filed their reply submissions. The
Commission also received numerous comments on the public interest from
non-parties.
Having reviewed the record in this investigation, including the
written submissions of the parties, the Commission affirms with
modifications the Final ID's domestic industry findings (both economic
and technical prong) as to the '501, '502, '648, and '745 patents. The
Commission additionally affirms with modifications the Final ID's
conclusion that the asserted claims of the '501 patent are obvious, but
the asserted claims of the '502, '648, and '745 patents are not
obvious. The Commission has determined to reverse the Final ID's
finding that Apple proved by clear and convincing evidence that claim
28 of the '502 patent and claim 12 of the '648 patent are invalid for
lack of written description. Furthermore, the Commission affirms the
Final ID's claim construction related to the recited term ``first
shape'' and the related conclusion that the Accused Products do not
satisfy elements [1B] and [20B] of the '745 patent. The Commission
additionally vacates the Final ID's finding that the Commission has
subject matter jurisdiction over the investigation and instead finds
that the Commission has statutory authority over the investigation. The
Commission affirms the remainder of the Final ID that is not
inconsistent with the Commission's opinion issued concurrently
herewith. As a result, the Commission finds that Apple has violated
section 337 as to claims 22 and 28 of the '502 patent and claims 12,
24, and 30 of the '648 patent.
The Commission has determined that the appropriate form of relief
is an LEO prohibiting (1) the unlicensed entry of infringing wearable
electronic devices with light-based pulse oximetry functionality and
components thereof manufactured by or on behalf of Apple or any of its
affiliated companies, parents, subsidiaries, or other related business
entities, or its successors or assigns. The Commission has also
determined to issue a CDO against Apple. The Commission has determined
to include an exemption to the remedial orders for service or repair
or, under warranty terms, replacement of products purchased prior to
the end of the period of Presidential review.
The Commission has further determined that the public interest
factors enumerated in subsections (d)(l) and (f)(1) (19 U.S.C.
1337(d)(l), (f)(1)) do not preclude issuance of the above-referenced
remedial orders. Additionally, the Commission has determined to impose
a bond of zero (0%) (i.e., no bond) of entered value of the covered
products during the period of Presidential review (19 U.S.C. 1337(j)).
This investigation is terminated.
The Commission vote for this determination took place on October
26, 2023.
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: October 26, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-24071 Filed 10-31-23; 8:45 am]
BILLING CODE 7020-02-P
