Notice2023-24071
Certain Light-Based Physiological Measurement Devices and Components Thereof; Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and a Cease and Desist Order; Termination of the Investigation
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Published
November 1, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in the above-captioned investigation. The Commission has determined to issue: a limited exclusion order ("LEO") prohibiting the unlicensed entry of infringing wearable electronic devices with light-based pulse oximetry functionality and components thereof covered by certain claims of U.S. Patent Nos. 10,912,502 or 10,945,648 that are manufactured by or on behalf of, or imported by or on behalf of, respondent Apple, Inc. ("Apple") or any of its affiliated companies, parents, subsidiaries, or other related business entities, or its successors or assigns; and a cease and desist order ("CDO") directed against Apple and any of its affiliated companies, parents, subsidiaries, or other related business entities, or its successors or assigns. This investigation is terminated.
Full Text
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<title>Federal Register, Volume 88 Issue 210 (Wednesday, November 1, 2023)</title>
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[Federal Register Volume 88, Number 210 (Wednesday, November 1, 2023)]
[Notices]
[Pages 75032-75033]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24071]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1276]
Certain Light-Based Physiological Measurement Devices and
Components Thereof; Notice of the Commission's Final Determination
Finding a Violation of Section 337; Issuance of a Limited Exclusion
Order and a Cease and Desist Order; Termination of the Investigation
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 in the above-captioned
investigation. The Commission has determined to issue: a limited
exclusion order (``LEO'') prohibiting the unlicensed entry of
infringing wearable electronic devices with light-based pulse oximetry
functionality and components thereof covered by certain claims of U.S.
Patent Nos. 10,912,502 or 10,945,648 that are manufactured by or on
behalf of, or imported by or on behalf of, respondent Apple, Inc.
(``Apple'') or any of its affiliated companies, parents, subsidiaries,
or other related business entities, or its successors or assigns; and a
cease and desist order (``CDO'') directed against Apple and any of its
affiliated companies, parents, subsidiaries, or other related business
entities, or its successors or assigns. This investigation is
terminated.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. 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#db9e9f9288e893beb7ab9baea8b2afb8f5bcb4ad"><span class="__cf_email__" data-cfemail="2267666b71116a474e526257514b56410c454d54">[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 August 18, 2021, based on a complaint filed on behalf of Masimo
Corporation and Cercacor Laboratories, Inc., both of Irvine, CA
(collectively, ``Complainants''). 86 FR 46275 (Aug. 18, 2021). The
complaint, as amended, alleged violations of section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. 1337, based upon the importation
into the United States, the sale for importation, and the sale within
the United States after importation of certain light-based
physiological measurement devices and components thereof by reason of
infringement of certain claims of U.S. Patent No. 10,912,501 (``the
'501 patent''); U.S. Patent No. 10,912,502 (``the '502 patent''); U.S.
Patent No. 10,945,648 (``the '648 patent''); U.S. Patent No. 10,687,745
(``the '745 patent''); and U.S. Patent No. 7,761,127 (``the '127
patent''). Id. The amended complaint further alleged that an industry
in the United States exists and/or is in the process of being
established as required by section 337. Id. The notice of investigation
named Apple of Cupertino, California as the sole respondent. Id. at
46276. The Office of Unfair Import Investigations is not participating
in this investigation. Id.
Complainants previously withdrew certain asserted claims pursuant
to Order No. 25 (Mar. 23, 2022), unreviewed by Comm'n Notice (Apr. 12,
2022), and Order No. 33 (May 20, 2022), unreviewed by Comm'n Notice
(June 10, 2022). Only claim 12 of the '501 patent, claims 22 and 28 of
the '502 patent, claims 12, 24, and 30 of the '648 patent, claims 9,
18, and 27 of the '745 patent, and claim 9 of the '127 patent remain in
the investigation. Claim 18 of the '745 patent is still at issue for
purposes of the domestic industry only.
On January 10, 2023, the presiding administrative law judge
(``ALJ'') issued the final initial determination (``Final ID''), which
found that Apple violated section 337 as to claims 24 and 30 of the
'648 patent, but not as to claim 12 of the '501 patent, claims 22 and
28 of the '502 patent, claim 12 of the '648 patent, claims 9 and 27 of
the '745 patent, and claim 9 of the '127 patent. See Final ID at 335-
36. On January 24, 2023, the ALJ issued a Recommended Determination on
remedy and bonding (``RD'') should a violation be found in the above-
captioned investigation. The RD recommended that, if the Commission
finds a violation, it should issue an LEO
[[Page 75033]]
directed to certain wearable electronic devices with light-based pulse
oximetry functionality and components thereof that are imported, sold
for importation, and/or sold after importation by Apple; and a CDO
directed to Apple. RD at 2, 5. The RD additionally recommended that the
Commission set a zero percent (0%) bond (i.e., no bond) during the
sixty-day period of Presidential review. Id. at 6. In its notice
instituting this investigation, the Commission did not instruct the ALJ
to make findings and recommendations concerning the public interest.
See 86 FR at 46275-76.
On January 23, 2023, Complainants and Apple each filed a petition
for review. On January 31, 2023, Complainants and Apple each filed
responses to the other party's petitions.
On February 23, 2023, the parties filed their public interest
statements pursuant to 19 CFR 210.50(a)(4). The Commission received
numerous comments on the public interest from non-parties.
On May 15, 2023, after considering the parties' petitions and
responses thereto, the Commission determined to review the Final ID in
part. See 88 FR 32243, 32243-46 (May 19, 2023). In particular, the
Commission determined to review the following findings of the Final ID:
(1) the domestic industry with regard to the '501 patent, the '502
patent, the '648 patent, and the '745 patent;
(2) obviousness with regard to the '501 patent, the '502 patent,
the '648 patent, and the '745 patent;
(3) written description with regard to claim 28 of the '502 patent
and claim 12 of the '648 patent;
(4) claim construction and infringement with regard to the '745
patent; and
(5) subject matter jurisdiction.
Id. The Commission requested briefing on certain issues under
review and on remedy, the public interest, and bonding. See id.
On June 5, 2023, the parties filed their written submissions on the
issues under review and on remedy, public interest, and bonding, and on
June 12, 2023, the parties filed their reply submissions. The
Commission also received numerous comments on the public interest from
non-parties.
Having reviewed the record in this investigation, including the
written submissions of the parties, the Commission affirms with
modifications the Final ID's domestic industry findings (both economic
and technical prong) as to the '501, '502, '648, and '745 patents. The
Commission additionally affirms with modifications the Final ID's
conclusion that the asserted claims of the '501 patent are obvious, but
the asserted claims of the '502, '648, and '745 patents are not
obvious. The Commission has determined to reverse the Final ID's
finding that Apple proved by clear and convincing evidence that claim
28 of the '502 patent and claim 12 of the '648 patent are invalid for
lack of written description. Furthermore, the Commission affirms the
Final ID's claim construction related to the recited term ``first
shape'' and the related conclusion that the Accused Products do not
satisfy elements [1B] and [20B] of the '745 patent. The Commission
additionally vacates the Final ID's finding that the Commission has
subject matter jurisdiction over the investigation and instead finds
that the Commission has statutory authority over the investigation. The
Commission affirms the remainder of the Final ID that is not
inconsistent with the Commission's opinion issued concurrently
herewith. As a result, the Commission finds that Apple has violated
section 337 as to claims 22 and 28 of the '502 patent and claims 12,
24, and 30 of the '648 patent.
The Commission has determined that the appropriate form of relief
is an LEO prohibiting (1) the unlicensed entry of infringing wearable
electronic devices with light-based pulse oximetry functionality and
components thereof manufactured by or on behalf of Apple or any of its
affiliated companies, parents, subsidiaries, or other related business
entities, or its successors or assigns. The Commission has also
determined to issue a CDO against Apple. The Commission has determined
to include an exemption to the remedial orders for service or repair
or, under warranty terms, replacement of products purchased prior to
the end of the period of Presidential review.
The Commission has further determined that the public interest
factors enumerated in subsections (d)(l) and (f)(1) (19 U.S.C.
1337(d)(l), (f)(1)) do not preclude issuance of the above-referenced
remedial orders. Additionally, the Commission has determined to impose
a bond of zero (0%) (i.e., no bond) of entered value of the covered
products during the period of Presidential review (19 U.S.C. 1337(j)).
This investigation is terminated.
The Commission vote for this determination took place on October
26, 2023.
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: October 26, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-24071 Filed 10-31-23; 8:45 am]
BILLING CODE 7020-02-P
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