[Federal Register Volume 79, Number 204 (Wednesday, October 22, 2014)]
[Notices]
[Pages 63163-63165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25059]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-890]


Certain Sleep-Disordered Breathing Treatment Systems 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, 
the Public Interest and Bonding

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on August 21, 2014, finding a violation of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), in this investigation.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3042. Copies of non-
confidential 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. General information concerning the Commission 
may also be obtained by accessing its Internet server at http://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at http://edis.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 23, 2013, based on a complaint filed by ResMed Corporation of 
San Diego, California; ResMed Incorporated of San Diego, California; 
and ResMed Limited of New South Wales, Australia (collectively, 
``ResMed''). 78 FR 52564 (Aug. 23, 2013). The complaint alleged 
violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in 
the importation into the United States, the sale for importation, and 
the sale within the United States after importation of certain sleep-
disordered breathing treatment systems and components thereof that 
infringe one or more of claims 32-37, 53, 79, 80, and 88 of U.S. Patent 
No. 7,997,267 (``the '267 patent''); claims 1-7 of U.S. Patent No. 
7,614,398 (``the '398 patent''); claim 1 of U.S. Patent No. 7,938,116 
(``the '116 patent''); claims 30, 37, and 38 of U.S. Patent No. 
7,341,060 (the '060 patent); claims 1, 3, 5, 11, 28, 30, 31, and 56 of 
U.S. Patent No. 8,312,883 (``the '883 patent''); claims 1, 3, 6, 7, 9, 
29, 32, 35, 40, 42, 45, 50, 51, 56, 59, 89, 92, 94, and 96 of U.S. 
Patent No. 7,178,527 (the '527 patent); claims 19-24, 26, 29-36, and 
39-41 of U.S. Patent No. 7,950,392 (the '392 patent); and claims 13, 
15, 16, 26-28, 51, 52, and 55 of U.S. Patent No 7,926,487 (``the '487 
patent''). The notice of investigation named the following respondents: 
BMC Medical Co., Ltd. of Beijing, China; 3B Medical, Inc. of Lake 
Wales, Florida; and 3B Products, L.L.C., of Lake Wales, Florida 
(collectively ``Respondents''). The Office of Unfair Import 
Investigations (``OUII'') is participating in the investigation.
    On January 9, 2014, the ALJ issued an ID granting a motion by 
ResMed to amend the complaint and notice of investigation to substitute 
U.S. Patent No. RE 44,453 (``the '453 patent'') for the '398 patent and 
to terminate the investigation as to the '398 patent. See Order No. 7 
(Jan. 9, 2014). The Commission determined not to review the ID. See 
Notice of Commission Determination Not to Review an Initial 
Determination Granting the Complainants' Motion to Amend the Complaint 
and Notice of Investigation (Feb. 10, 2014); 79 FR 9000-01 (Feb. 14, 
2014).
    On February 24, 2014, the ALJ issued an ID granting a motion by 
ResMed to withdraw its allegations with respect to the '116 patent. See 
Order No. 11 (Feb. 24, 2014). The Commission determined not to review 
the ID. See Notice of Commission Determination Not to Review an Initial 
Determination Granting the Complainants' Motion to Partially Terminate 
the Investigation by Withdrawing Allegations with Respect to U.S. 
Patent No. 7,938,116 (March 11, 2014).
    On March 18, 2014, the ALJ granted a motion by ResMed to terminate 
the investigation as to claims 26-28 of the '487 Patent. See Order No. 
20 (Mar 18, 2012). The Commission determined not to review the ID. See 
Notice of Commission Determination Not to Review an Initial 
Determination Granting Complainants' Unopposed Motion for Partial 
Termination of the Investigation by Withdrawal of Claims 26-28 of U.S. 
Patent No. 7,926,487 (Apr. 29, 2014).
    On August 21, 2014, the ALJ issued his final ID, finding a 
violation of section 337 by Respondents with respect to certain 
asserted claims of the '392, '267, '060, '883, '527, and '453 patents. 
The ALJ found no violation of section 337 with respect to the asserted 
claims of the '487 patent. Specifically, the ALJ found that the 
Commission has subject matter jurisdiction, in rem jurisdiction over 
the accused products, and in personam jurisdiction over the 
respondents. ID at 10-11. The parties stipulated to importation of the 
accused products and the ALJ found that the importation requirement of 
section 337 (19 U.S.C. 1337(a)(1)(B)) has been satisfied. Id. at 3. The 
ALJ found that the accused products infringe asserted claims 1, 9, 32, 
89, and 92 of the '527 patent; asserted claims 19, 21, 29, 32, and 36 
of the '392 patent; asserted claims 32-34 and 53 of the '267 patent; 
asserted claims 30, 37, and 38 of the '060 patent; asserted claims 1, 
3, 5, 11, 28, 30, 31, and 56 of the '883 patent; and asserted claim 2 
of the '453 patent. See ID at 23, 46, 57-58, 71-78, 95, 99, and 102. 
The ALJ found that Respondents failed to establish by clear and 
convincing evidence that the asserted claims of the '392, '267, '060, 
'883, '527, or claim 2 of the '453 patents were invalid in light of the 
cited prior art references. See id. at 25-45, 48-55, 96, and 100. The 
ALJ concluded that the accused products satisfy each limitation of 
claims 4 and 7 of the '453 patent but found those claims invalid in 
view of the prior art. See id. at 103-139. The ALJ also found that the 
accused products satisfy each limitation of asserted claims 13, 51, 52, 
and 55 of the '487 patent, but found those claims invalid in view of 
the prior art. See id. at 78-92. The ALJ further found that ResMed 
established the existence of a domestic industry that practices the 
asserted patents under 19 U.S.C. 1337(a)(2). See ID at 139-188.
    On September 3, 2014, Respondents and the Commission investigative 
attorney filed petitions for review of the ID. That same day, ResMed 
filed a

[[Page 63164]]

contingent petition for review of the ID. On September 11, 2014, the 
parties filed responses to the various petitions and contingent 
petition for review.
    Having examined the record of this investigation, including the 
ALJ's final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the final ID in part. 
Specifically, with respect to the '487 patent, the Commission has 
determined to review the ALJ's construction of the claim term ``gas 
washout vent'' and construe the limitation to mean ``a vent comprising 
a thin air permeable membrane extending across an opening for 
exhausting gas to the atmosphere.'' As a result of the new claim 
construction, the Commission has determined to review the ALJ's 
findings on infringement, invalidity, and the technical prong of the 
domestic industry requirement. Regarding the '453 patent, the 
Commission has determined to review (1) the ALJ's construction of the 
claim limitation ``a retaining mechanism configured to secure the 
connecting structure to the CPAP apparatus'' and strike the ID's 
requirement that the claimed ``retaining mechanism'' must include an 
arrangement of moving parts; (2) the ALJ's finding that the prior art 
REMstar device does not anticipate the asserted claims of the '453 
patent; and (3) the ALJ's findings on infringement and the technical 
prong of the domestic industry requirement. The Commission has also 
determined to review the ID's findings and conclusions regarding the 
economic prong of the domestic industry requirement under 19 U.S.C. 
1337(a)(3)(C).
    The parties are requested to brief their positions on the issues 
under review with reference to the applicable law and the evidentiary 
record. In connection with its review, the Commission is particularly 
interested in responses to the following:

    The Commission has determined to revise the ALJ's construction 
of the claim limitation ``a retaining mechanism'' recited in the 
asserted claims of the '453 patent and strike the requirement that 
it requires an arrangement of moving parts. That is, the claim 
limitation ``a retaining mechanism configured to secure the 
connecting structure to the CPAP apparatus'' is construed to mean 
``one or more parts for holding in place the CPAP apparatus that is 
configured to attach the connecting structure to the CPAP 
apparatus.'' See ID at 124. Please discuss whether the REMstar 
device anticipates the asserted claims under the revised 
construction.

    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue one or more 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 (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 U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. 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. Complainants and the IA are also requested to 
submit proposed remedial orders for the Commission's consideration and 
to provide identification information for all importers of the subject 
articles. Complainants are also requested to state the date that the 
patents expire and the HTSUS numbers under which the accused products 
are imported. The written submissions and proposed remedial orders must 
be filed no later than close of business on October 31, 2014. Reply 
submissions must be filed no later than the close of business on 
November 7, 2014. Such submissions should address the ALJ's recommended 
determinations on remedy and bonding. No further submissions on any of 
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 and submit eight 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to section 210.4(f) of the Commission's Rules of Practice and 
Procedure (19 CFR 210.4(f)). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-890'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.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. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. 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 the any confidential filing. All non-confidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
    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.


[[Page 63165]]


    Issued: October 16, 2014.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-25059 Filed 10-21-14; 8:45 am]
BILLING CODE 7020-02-P