[Federal Register Volume 65, Number 28 (Thursday, February 10, 2000)]
[Notices]
[Pages 6625-6626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3020]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-419]


Certain Excimer Laser Systems for Vision Correction Surgery and 
Components Thereof and Methods for Performing Such Surgery; Schedule 
for the Filing of Written Submissions on the Issues Under Review and on 
Remedy, the Public Interest, and Bonding; Briefing Questions

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given of the schedule for filing written 
submissions on the issues under review in the above-captioned 
investigation in connection with the Commission's review-in-part of the 
final initial determination (``ID'') issued on December 6, 1999, by the 
presiding administrative law judge (``ALJ'') in the above-captioned 
investigation.

FOR FURTHER INFORMATION CONTACT: Timothy P. Monaghan, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW, Washington, DC 20436, telephone 202-205-3152. General information 
concerning the Commission may also be obtained by accessing its 
Internet server (http://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: This investigation was instituted on March 
1, 1999, based on a complaint by VISX, Inc. (``VISX''), 64 FR 10016-17. 
The respondents named in the investigation are Nidek Co., Ltd., Nidek 
Inc., and Nidek Technologies, Inc. Complainant alleges importation and 
sale of certain excimer laser systems for vision correction surgery 
that infringe claims of U.S. Letters Patent Nos. 4,718,418 (``the '418 
patent'') and 5,711,762 (``the '762 patent''). An evidentiary hearing 
was held from August 18, 1999, to August 27, 1999.
    On December 6, 1999, the presiding administrative law judge 
(``ALJ'') issued her final ID finding that complainant VISX failed to 
establish the required domestic industry, that there was no 
infringement of any claim at issue, and that the '762 patent was 
invalid and unenforceable.
    On February 2, 2000, the Commission determined not to review the 
ID's findings with respect to the '418 patent and determined to review 
all the ID's

[[Page 6626]]

findings with respect to the '762 patent. The Commission is 
particularly interested in receiving briefing on the following points:
    (1) The construction of the claimed laser delivery system means 
element of claim 1 of the '762 patent.
    (2) The construction of claim 10 of the '762 patent and the 
ramifications of that construction under the doctrine of claim 
differentiation as it relates to claims 1 and 10.
    (3) A discussion, including a detailed engineering description, of 
how VISX's STAR, STAR S2, 20/20A, and 20/20B systems function, and 
whether those systems practice claims 1, 10, or 12 of the '762 patent, 
both as those claims are construed by the ALJ and if claim 1 is 
construed as not requiring a proximity mask.
    (4) Whether the accused Nidek device infringes claim 1 of the '762 
patent literally or under the doctrine of equivalents if claim 1 is 
construed as not requiring a proximity mask.
    In connection with the final disposition of this investigation, the 
Commission may issue (1) an 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 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 In the 
Matter of Certain Devices for Connecting Computers via Telephone Lines, 
Inv. No. 337-TA-360, USITC Pub. No. 2843 (December 1994) (Commission 
Opinion).
    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 President has 60 
days to approve or disapprove the Commission's action. During this 
period, the subject articles would be entitled to enter the United 
States under a 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.

Written Submissions

    The parties to the investigation, interested government agencies, 
and any other interested parties are encouraged to file written 
submissions on the issues under review, and on remedy, the public 
interest, and bonding. Such submissions should address the January 31, 
2000, recommended determination by the ALJ on remedy and bonding. 
Complainant and the Commission investigative attorney are also 
requested to submit proposed remedial orders for the Commission's 
consideration. The written submissions and proposed remedial orders 
must be filed no later than close of business on February 14, 2000. 
Reply submissions must be filed no later than the close of business on 
February 18, 2000. No further submissions on these issues will be 
permitted unless otherwise ordered by the Commission.
    Persons filing written submissions must file with the Office of the 
Secretary the original document and 14 true copies thereof on or before 
the deadlines stated above. Any person desiring to submit a document 
(or portion thereof) to the Commission in confidence must request 
confidential treatment unless the information has already been granted 
such treatment during the proceedings. All such requests should be 
directed to the Secretary of the Commission and must include a full 
statement of the reasons why the Commission should grant such 
treatment. See Sec. 201.6 of the Commission's rules of practice and 
procedure, 19 CFR Sec. 201.6. Documents for which confidential 
treatment by the Commission is sought will be treated accordingly. All 
nonconfidential written submissions will be available for public 
inspection at the Office of the Secretary.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, 19 U.S.C. Sec. 1337, and section 210.45 of the 
Commission's rules of practice and procedure, 19 CFR Sec. 210.45.
    Copies of the public version of the subject ID, and all other 
nonconfidential documents filed in connection with this investigation, 
are or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW, Washington, DC 20436, 
telephone 202-205-2000.

    By order of the Commission.

    Issued: February 3, 2000.

Donna R. Koehnke,
Secretary.
[FR Doc. 00-3020 Filed 2-9-00; 8:45 am]
BILLING CODE 7020-02-P