[Federal Register Volume 72, Number 123 (Wednesday, June 27, 2007)]
[Notices]
[Page 35260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12400]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-546]


In the Matter of Certain Male Prophylactic Devices

Order

    This investigation was instituted on August 5, 2005, based on a 
complaint filed on behalf of Portfolio Technologies, Inc., of Chicago, 
Illinois. 70 FR 45422. The complaint, as amended and supplemented, 
alleged violations of section 337 of the Tariff Act of 1930, as 
amended, 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 male prophylactic devices by reason of 
infringement of claims 1-27, 31-33, and 36 of U.S. Patent No. 
5,082,004. The respondents named in the investigation are Church & 
Dwight Co., Inc., of Princeton, New Jersey (``C&D''); Reddy Medtech, 
Ltd., of Tamil Nadu, India; and Intellx, Inc., of Petoskey, Michigan.
    On June 30, 2006, the presiding administrative law judge (``ALJ'') 
issued a final initial determination (``ID'') in which he ruled that 
there is no violation of section 337 of the Tariff Act of 1930, as 
amended. He found that certain valid claims were infringed, but 
concluded that there was no domestic industry under the economic prong 
of the domestic industry requirement. All parties petitioned for review 
of various parts of the final ID.
    On September 29, 2006, the Commission determined to review the 
issues of claim construction, infringement, invalidity due to 
anticipation, and domestic industry, and requested briefing on these 
issues and certain subissues. 71 FR 58875 (Oct. 5, 2006). On December 
5, 2006, the Commission determined to affirm in part, reverse in part, 
and remand in part the final ID. Among other things, the Commission 
reversed the ALJ's finding of no domestic industry under the economic 
prong. The Commission also determined to extend the target date for 
completion of the investigation until June 5, 2007. The date was 
subsequently moved to June 21, 2007, by an unreviewed ID.
    On March 19, 2007, the ALJ issued his remand ID (``IDR''), in which 
he ruled that there is a violation of section 337 based on the 
infringement of certain valid claims and the finding that there is a 
domestic industry. In further briefing before the Commission, all 
parties claimed error.
    Having examined the parties' submissions and the record in this 
proceeding, it is hereby ordered that --
    (1) The ALJ's finding of violation of section 337 is reversed;
    (2) The ALJ's finding that the accused products infringe certain 
claims of U.S. Patent No. 5,082,004 is reversed;
    (3) The ALJ's finding that the Twisted Pleasure product fails to 
meet the thickness limitation of claims 22 and 25 of the asserted 
patent is reversed;
    (4) The ALJ's finding that C&D waived its argument that claim 31 of 
the asserted patent is invalid as anticipated by the prior art is 
reversed;
    (5) The ALJ's finding that claims 1, 6, and 9 of the asserted 
patent are invalid in view of the prior art are reversed;
    (6) The IDR is vacated except where consistent with the 
determination of the Commission;
    (7) The motion of the Office of Unfair Import Investigations to 
file its reply out of time is granted;
    (8) The investigation is terminated with a finding of no violation 
of section 337;
    (9) The Secretary shall serve a copy of this Order and the 
Commission Opinion in support thereof, as soon as it is issued, upon 
each party to the investigation; and
    (10) The Secretary shall publish notice of this order and 
termination of the investigation in the Federal Register.

     Issued: June 21, 2007.

    By order of the Commission.
William R. Bishop,
Acting Secretary to the Commission.
 [FR Doc. E7-12400 Filed 6-26-07; 8:45 am]
BILLING CODE 7020-02-P