Certain Windshield Wiper Devices and Components; Commission Final Determination of Violation of Section 337; Termination of Investigation; Issuance of Limited Exclusion Order

Lisa R. Barton
International Trade Commission
2 May 2016

[Federal Register Volume 81, Number 84 (Monday, May 2, 2016)]
[Notices]
[Pages 26255-26256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10173]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-934]


 Certain Windshield Wiper Devices and Components; Commission 
Final Determination of Violation of Section 337; Termination of 
Investigation; Issuance of Limited Exclusion Order

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 found 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. The Commission has determined to issue a 
limited exclusion order. The investigation is terminated.

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 Kloten, 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 Instradent 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

[[Page 26256]]

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 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 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).
    On January 14, 2016, the Commission determined to review the Final 
ID in part with respect to the '977 patent. 81 FR 3471-3473 (Jan. 21, 
2016). Specifically, the Commission 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 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 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 further determined to review the final ID's finding 
that the 2003 Alpha Bio Tec Catalog anticipates claims 1-5 of the '977 
patent. In connection with its review, the Commission requested 
briefing on several questions. Id. at 3472.
    The Commission determined not to review the remaining issues 
decided in the final ID, including any of the Final ID's findings with 
respect to the '443 patent. The Commission also denied a motion filed 
by Nobel to amend the Administrative Protective Order 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, as well as Nobel's motion for 
leave to file a reply in support of its motion. Id. at 3473.
    On January 21, 2016, the parties filed initial submissions in 
response to the Commission's request for written submissions. On 
January 28, 2016, the parties filed response submissions.
    Having examined the record of this investigation, including the 
final ID, the petitions for review, and the responses thereto, and the 
parties' submissions on review, the Commission has determined to find 
that a violation of section 337 has occurred. The Commission has 
determined that the appropriate form of relief is a limited exclusion 
order under 19 U.S.C. 1337(d)(1), prohibiting the unlicensed entry of 
dental implants that infringe any of claims 1-5 of the '977 patent and 
claims 15, 18, 19, 30, and 32 of the '443 patent.
    The Commission has further determined that consideration of the 
public interest factors enumerated in section 337(d) (19 U.S.C. 
1337(d)) does not preclude issuance of the limited exclusion order. The 
Commission has determined that the bond for temporary importation 
during the period of Presidential review (19 U.S.C. 1337(j)) shall be 
in the amount of $120 per unit of articles subject to the exclusion 
order. The Commission's order was delivered to the President and the 
United States Trade Representative on the day of its issuance.
    The investigation is terminated.
    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: April 26, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-10173 Filed 4-29-16; 8:45 am]
 BILLING CODE 7020-02-P