[Federal Register Volume 73, Number 56 (Friday, March 21, 2008)]
[Notices]
[Page 15195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5762]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-569]


In the Matter of Certain Endoscopic Probes for Use in Argon 
Plasma Coagulation Systems; Notice of Commission Decision To Review in 
Part an Initial Determination and on Review To Affirm the 
Administrative Law Judge's Determination That There is No Violation of 
Section 337

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 an initial determination 
(``ID'') issued by the presiding administrative law judge (``ALJ'') 
determining that there is no violation of section 337 of the Tariff Act 
of 1930. Specifically, the Commission has determined to review the 
portions of the ALJ's determination relating to construction of the 
claim term ``predetermined minimum safety distance'' and associated 
findings on infringement and domestic industry. On review, the 
Commission has determined to take no position with respect to these 
issues, and to affirm the ALJ's determination of no violation of 
section 337.

FOR FURTHER INFORMATION CONTACT: Jonathan J. Engler, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 202-205-3112. Copies of the public 
version of the ID and all nonconfidential 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. Hearing-impaired persons 
are advised that information on this matter can be obtained by 
contacting the Commission's TDD terminal on 202-205-1810. General 
information concerning the Commission may also be obtained by accessing 
its Internet server (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.

SUPPLEMENTARY INFORMATION: This investigation was instituted by the 
Commission based on a complaint filed by ERBE Elektromedizin GmbH and 
ERBE USA, Inc. (collectively, ``ERBE''). 71 FR 29386 (May 16, 2006). 
The complaint alleged violations of section 337 of the Tariff Act of 
1930, 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 endoscopic probes for use in argon plasma 
coagulation systems by reason of infringement of 10 claims of U.S. 
Patent No. 5,720,745 (``the '745 patent'') and infringement of U.S. 
Supplemental Trademark Registration No. 2,637,630 (``the '630 
registration''). The complaint also alleged that a domestic industry 
exists and/or is in the process of being established, with regard to 
the '745 patent and the '630 registration under subsection (a)(2). The 
notice of investigation named Canady Technology, LLC of Hampton, 
Virginia (``Canady USA''); Canady Technology Germany GmbH of Germany 
(``Canady Gmbh''); and KLS Martin as the respondents. The complaint 
requested that the Commission institute an investigation pursuant to 
Section 337 and, after the investigation, issue a permanent exclusion 
order and a permanent cease and desist order. The investigation has 
been terminated as to KLS Martin on the basis of a settlement 
agreement.
    On January 16, 2008 the administrative law judge issued a final ID 
finding no violation of section 337 in this investigation. The ALJ 
found no violation of section 337 through the importation or sale for 
importation of argon plasma probes sold by the Canady in the United 
States. In particular, the ID found that the Canady probes do not 
directly infringe the '745 patent; that even if there were direct 
infringement there is no contributory infringement or inducement to 
infringe the '745 patent by Canady; that ERBE has not shown that there 
is a domestic industry with respect to the '745 patent because the ERBE 
products are not used to practice its claims; and that the '745 patent 
is not invalid.
    On January 28, 2008, ERBE filed its petition for review of the ID, 
challenging the ALJ's findings with respect to no infringement of the 
'745 patent and the absence of a domestic industry. Canady filed its 
Contingent Petition for review of the ID on January 29, 2008.
    Having examined the record of this investigation, including the 
ALJ's final ID and the submissions of the parties, the Commission has 
determined to review the portions of the ALJ's determination relating 
to the construction of the phrase ``predetermined minimum safety 
distance'' the associated findings on infringement and domestic 
industry. On review, the Commission has determined to take no position 
with respect to these issues, and to affirm the ALJ's determination of 
no violation of section 337.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended, 19 U.S.C. 1337, and Commission rule 
210.42, 19 CFR 210.42.

    By order of the Commission.

    Issued: March 17, 2008.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E8-5762 Filed 3-20-08; 8:45 am]
BILLING CODE 7020-02-P