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Certain Windshield Wiper Devices and Components Thereof; Commission Decision To Review In Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions

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Certain Windshield Wiper Devices and Components Thereof; Commission Decision To Review In Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions

Lisa R. Barton
International Trade Commission
January 21, 2016


[Federal Register Volume 81, Number 13 (Thursday, January 21, 2016)]
[Notices]
[Pages 3471-3473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01089]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-934]


Certain Windshield Wiper Devices and Components Thereof; 
Commission Decision To Review In Part a Final Initial Determination 
Finding a Violation of Section 337; Request for Written Submissions

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 presiding 
administrative law judge's (``ALJ'') final initial determination 
(``final ID'') issued on October 27, 2015 finding a violation of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337'') in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2301. 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 October 27, 2014, based on a Complaint filed by Nobel Biocare 
Services AG of Switzerland and Nobel Biocare USA, LLC of Yorba Linda, 
California (collectively, ``Nobel''), as supplemented. 79 FR 63940-41 
(Oct. 27, 2014). The Complaint alleges violations of section 337 of the 
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in 
the sale for importation, importation, and sale within the United 
States after importation of certain dental implants by reason of 
infringement of certain claims of U.S. Patent Nos. 8,714,977 (``the 
'977 patent'') and 8,764,443 (``the '443 patent''). The Complaint 
further alleges the existence of a domestic industry. The Commission's 
Notice of Investigation named as respondents Neodent USA, Inc., of 
Andover, Massachusetts and JJGC Ind[uacute]stria e Com[eacute]rcio de 
Materiais Dent[aacute]rios S/A of Curitiba, Brazil (collectively, 
``Respondents''). The Commission previously terminated the 
investigation in part as to certain claims of the '443 patent. Notice 
(Apr. 29, 2015); Order No. 22 (Apr. 8, 2015). The Commission also 
amended the Notice of Investigation to reflect the corporate name 
change of Neodent USA, Inc. to lnstradent USA, Inc. Notice (May 6, 
2015); Order No. 24 (Apr. 9, 2015). The use of the term ``Respondents'' 
herein refers to the current named respondents.
    On October 27, 2015, the ALJ issued his final ID, finding a 
violation of section 337 with respect to asserted claims 15, 18, 19, 
30, and 32 of the '443 patent, and finding no violation with respect to 
asserted claim 17 of the '443 patent and all of the asserted claims of 
the '977 patent. In particular, the final ID finds that the accused 
products infringe claims 1-5 and 19 of the '977 patent and claims 15, 
18, 19, 30, and 32 of the '443 patent, but do not infringe claim 17 of 
the '443 patent. The final ID also found that Respondents have shown 
that the asserted claims of the '977 patent are invalid for 
anticipation under 35 U.S.C. 102, but have not shown that the asserted 
claims of the '443 are invalid. In addition, the final ID found that 
Respondents failed to show that the asserted claims of the '977 and 
'443 patents are unenforceable due to inequitable conduct. The final ID 
further found that Nobel has satisfied the domestic industry 
requirement with respect to both the '977 and '443 patents.
    On November 10, 2015, the ALJ issued his recommended determination 
(``RD'') on remedy and bonding. The RD recommended that the appropriate 
remedy is a limited exclusion order barring entry of Respondents' 
infringing dental implants. The RD did not recommend issuance of a 
cease and desist order against any respondent. The RD recommended the 
imposition of a bond of $120 per imported unit during the period of 
Presidential review.
    On November 9, 2015, Nobel filed a petition for review of the final 
ID's finding of no violation with respect to claims 1-5 of the '977 
patent. In particular, Nobel requested review of the final ID's finding 
that the March 2003 Product Catalog of Alpha Bio Tec, Ltd. (``the 2003 
Alpha Bio Tec Catalog'') constitutes prior art under 35 U.S.C. 102(b), 
arguing that the catalog was not sufficiently publicly accessible prior 
to the critical date. Nobel also requested, if the Commission 
determines not to review the ID's prior art finding, that the 
Commission review the final ID's construction of the limitation ``the 
coronal region having a frustoconical shape'' recited in claim 1 of the 
'977 patent and, accordingly, review the final ID's finding that the 
accused products do not infringe claims 1-5 of the '977 patent under 
Nobel's proposed construction of that limitation. Nobel further argued 
that, should the Commission agree partially with Nobel concerning the 
proper construction of the limitation ``the coronal region having a 
frustoconical shape,'' the 2003 Alpha-Bio Tec Catalog does not 
anticipate the asserted claims of the '977 patent.
    No party petitioned for review of the final ID's finding that there 
is a violation of section 337 with respect to the '443 patent.
    On November 17, 2015, Respondents and the Commission investigative 
attorney (``IA'') each filed responses opposing Nobel's petition for 
review.
    On December 10, 2015, Respondents submited a post-RD statement on 
the public interest pursuant to Commission

[[Page 3472]]

Rule 210.50(a)(4). On December 14, 2015, Nobel submited a post-RD 
statement on the public interest pursuant to Commission Rule 
210.50(a)(4). No responses were filed by the public in response to the 
post-RD Commission Notice issued on November 12, 2015. See Notice of 
Request for Statements on the Public Interest, 80 FR 76574-75 (Dec. 9, 
2015), see also Correction of Notice, 80 FR 77376-77 (Dec. 14, 2015).
    Having examined the record of this investigation, including the 
final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the final ID in part.
    Specifically, the Commission has determined to review the final 
ID's construction of the limitation ``coronal region having a 
frustoconical shape'' recited in claim 1 of the '977 patent with regard 
to whether or not the term ``frustoconical shape'' is an adjective that 
modifies the claimed ``coronal region'' or whether the term is an 
independent structure that may comprise only a portion of the claimed 
``coronal region.'' In accordance with its claim construction review, 
the Commission has further determined to review the final ID's 
infringement findings with respect to claims 1-5 of the '977 patent, as 
well as the final ID's finding that the technical prong of the domestic 
industry requirement is satisfied with respect to claims 1-5 of the 
'977 patent.
    The Commission has also determined to review the final ID's finding 
that the 2003 Alpha Bio Tec Catalog is a printed publication under 35 
U.S.C. 102. The Commission has further determined to review the final 
ID's finding that the 2003 Alpha Bio Tec Catalog anticipates claims 1-5 
of the '977 patent.
    The Commission has determined not to review the remaining issues 
decided in the final ID.
    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 questions:

    1. With respect to the proper construction of the limitation 
``coronal region having a frustoconical shape'' recited in claim 1 
of the '977 patent, please address the meaning of the term 
``frustoconical shape'' in the context of claim 1, and, in 
particular, whether the term is an adjective that merely modifies 
the claimed ``coronal region'' or whether the term may refer to an 
independent structure comprised within the claimed ``coronal 
region.'' In addition, please address the significance of the clause 
``wherein a diameter of an apical end of the coronal region is 
larger than a diameter of a coronal end of the coronal region'' 
recited in claim 1 to the appropriate construction of the limitation 
``coronal region having a frustoconical shape.'' Please discuss all 
governing precedent with respect to this issue.
    2. With respect to whether the 2003 Alpha Bio Tec Catalog is 
prior art to the '977 patent, please address the significance of the 
evidence presented in exhibit JX-0278C, and the significance of the 
inclusion of the catalog in an information disclosure statement to 
the U.S. Patent and Trademark Office (see exhibit CX-0560). In 
addition, please address any evidence regarding the publication date 
of the 2003 Alpha Bio Tec Catalog, as well as any record evidence 
concerning whether and when the 2003 Alpha Bio Tec Catalog was 
``publically accessible'' prior to the critical date under governing 
precedent.
    3. Please address whether the 2003 Alpha Bio Tec Catalog 
anticipates the asserted claims of the '977 patent under a 
construction of the limitation ``coronal region having a 
frustoconical shape'' recited in claim 1 that requires the entire 
coronal region to be frustoconical but does not require any 
additional functional limitation.
    4. With respect to whether the 2003 Alpha Bio Tec Catalog 
anticipates claim 2 of the '977 patent, please address the 
significance of the testimony of Nobel's expert, Mr. Hurson, that 
one of ordinary skill in the art would understand that any portion 
of an implant intended to mate with another component, e.g. an 
abutment, would never be acid-etched. In addition, please address 
whether or not the 2003 Alpha Bio Tec Catalog clearly and 
convincingly discloses that the bevel of the illustrated 5.0 mm SPI 
implant is acid etched.
    5. Please address whether, under a construction of the 
limitation ``coronal region having a frustoconical shape'' recited 
in claim 1 of the '977 patent that requires the entire coronal 
region to be frustoconical but does not require any additional 
functional limitation, the technical prong of the domestic industry 
requirement is satisfied with respect to claim 1 of the '977 patent.

    The parties have been invited to brief only these discrete issues, 
as enumerated above, with reference to the applicable law and 
evidentiary record. The parties are not to brief other issues on 
review, which are adequately presented in the parties' existing 
filings.
    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 
respondent(s) 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, including 
the Office of Unfair Import Investigations, are requested to file 
written submissions on the issues identified in this notice. Parties to 
the investigation, including the Office of Unfair Import 
Investigations, 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. Complainant and the Office of Unfair Import Investigations are 
also requested to submit proposed remedial orders for the Commission's 
consideration. Complainant is further requested to state the dates that 
the patents expire, the HTSUS numbers under which the

[[Page 3473]]

accused products are imported, and any known importers of the accused 
products. The written submissions and proposed remedial orders must be 
filed no later than close of business on January 21, 2016. Initial 
submissions are limited to 50 pages, not including any attachments or 
exhibits related to discussion of the public interest. Reply 
submissions must be filed no later than the close of business on 
January 28, 2016. Reply submissions are limited to 25 pages, not 
including any attachments or exhibits related to discussion of the 
public interest. No further submissions on 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 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to Sec.  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-934'') 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 any confidential filing. All non-confidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
    On October 21, 2015, Nobel filed a motion to amend the 
Administrative Protective Order (``APO'') issued in this investigation 
to add specific provisions permitting the use of discovery from this 
investigation in two co-pending proceedings in the U.S. Patent and 
Trademark Office captioned as Instradent USA, Inc. v. Nobel Biocare 
Services AG, IPR2015-01784, and Instradent USA, Inc. v. Nobel Biocare 
Services AG, IPR2015-01786. On November 2, 2015, Respondents and the IA 
filed oppositions to Nobel's motion. On November 12, 2015, Nobel filed 
a motion for leave to file a reply in support of its motion to amend 
the APO. On November 23, 2015, Respondents filed an opposition to 
Nobel's motion for leave to file a reply.
    The Commission has determined to deny both Nobel's motion to amend 
the APO and motion for leave to file a reply in support of its motion.
    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: January 14, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-01089 Filed 1-20-16; 8:45 am]
 BILLING CODE 7020-02-P

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