Notice2022-17832
Certain Laparoscopic Surgical Staplers, Reload Cartridges, and Components Thereof; Notice of Commission Determination To Institute a Rescission Proceeding; Rescission of the Remedial Orders; Termination of the Rescission Proceeding
Primary source
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Published
August 19, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to institute a rescission proceeding and to grant an unopposed petition to rescind the limited exclusion order ("LEO") and cease and desist orders ("CDOs") (collectively, "the remedial orders") issued in the underlying investigation. The rescission proceeding is terminated.
Full Text
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<title>Federal Register, Volume 87 Issue 160 (Friday, August 19, 2022)</title>
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[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Notices]
[Page 51142]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17832]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1167 (Rescission)]
Certain Laparoscopic Surgical Staplers, Reload Cartridges, and
Components Thereof; Notice of Commission Determination To Institute a
Rescission Proceeding; Rescission of the Remedial Orders; Termination
of the Rescission Proceeding
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 institute a rescission proceeding and to
grant an unopposed petition to rescind the limited exclusion order
(``LEO'') and cease and desist orders (``CDOs'') (collectively, ``the
remedial orders'') issued in the underlying investigation. The
rescission proceeding is terminated.
FOR FURTHER INFORMATION CONTACT: Benjamin S. Richards, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5453. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#fbbebfb2a8c8b39e978bbb8e88928f98d59c948d"><span class="__cf_email__" data-cfemail="fdb8b9b4aeceb598918dbd888e94899ed39a928b">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. 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 July 5, 2019, based on a complaint filed by Ethicon LLC of Guaynabo,
PR; Ethicon Endo-surgery, Inc. of Cincinnati, Ohio; and Ethicon US, LLC
of Cincinnati, Ohio (collectively, ``Ethicon''). 84 FR 32220 (July 5,
2019); see also 84 FR 65174 (Nov. 26, 2019) (amending the caption). The
complaint alleged violations of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, based on the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain reload cartridges for laparoscopic
surgical staplers by reason of infringement of one or more claims of
U.S. Patent Nos. 9,844,379 (``the '379 patent''); 9,844,369; 7,490,749;
8,479,969; and 9,113,874. 84 FR at 32220. The Commission's notice of
investigation named the following as respondents: Intuitive Surgical
Inc. of Sunnyvale, CA; Intuitive Surgical Operations, Inc. of
Sunnyvale, CA; Intuitive Surgical Holdings, LLC of Sunnyvale, CA; and
Intuitive Surgical S. De R.L. De C.V. of Mexicali, Mexico
(collectively, ``Intuitive''). Id. The Office of Unfair Import
Investigations did not participate in this investigation. Id.
On October 14, 2021, the Commission issued a final determination
finding a violation of section 337 with respect to certain laparoscopic
surgical staplers, reload cartridges, and components thereof that
infringed certain claims of the '379 patent. The Commission issued an
LEO against respondents' infringing articles and CDOs against
Intuitive. The Commission concurrently suspended enforcement of those
orders pending the final resolution of a Final Written Decision issued
by the Patent Trial and Appeal Board (``PTAB'') of the U.S. Patent and
Trademark Office on March 26, 2021, finding all claims of the '379
patent to be unpatentable.
On May 23, 2022, the United States Court of Appeals for the Federal
Circuit affirmed the PTAB's Final Written Decision finding the claims
of the '379 patent unpatentable. Ethicon LLC v. Intuitive Surgical,
Inc., Nos. 2021-1995, 2021-1997, 2022 WL 1613188 (Fed. Cir. May 23,
2022). The Federal Circuit issued its mandate in that appeal on June
29, 2022, and Ethicon has since indicated that it does not intend to
seek further review of the decision.
On July 18, 2022, Intuitive filed an unopposed petition to rescind
the remedial orders as to the '379 patent based on a change of the
conditions that led to the Commission's issuance of those orders, i.e.,
the Federal Circuit's affirmance of the PTAB's finding that the claims
of the '379 patent are unpatentable. No responses to the petition were
filed.
Having reviewed the petition and the Federal Circuit's decision in
Ethicon LLC v. Intuitive Surgical, Inc., the Commission finds that the
conditions which led to the issuance of the remedial orders no longer
exist, and therefore, granting the unopposed petition to rescind is
warranted under section 337(k) (19 U.S.C. 1337(k)). The Commission also
finds that the requirements of Commission Rule 210.76(a) (19 CFR
210.76(a)) are satisfied. Accordingly, the Commission has determined to
institute a rescission proceeding and to grant the petition to rescind
the remedial orders. The rescission proceeding is terminated.
The Commission vote for this determination took place on August 15,
2022.
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: August 15, 2022.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2022-17832 Filed 8-18-22; 8:45 am]
BILLING CODE 7020-02-P
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