[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Notices]
[Page 25747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10367]



[[Page 25747]]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-562]


Certain Incremental Dental Positioning Adjustment Appliances and 
Methods of Producing Same; Notice of Institution of Formal Enforcement 
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 instituted a formal enforcement proceeding relating to 
the November 13, 2006, consent order issued in the above-captioned 
investigation.

FOR FURTHER INFORMATION CONTACT: Clint A. Gerdine, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3061. Copies of 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. 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/. 
Hearing-impaired persons are advised that information on the matter can 
be obtained by contacting the Commission's TDD terminal on 202-205-
1810.

SUPPLEMENTARY INFORMATION: The Commission instituted the underlying 
investigation in this matter on February 15, 2006, based on a complaint 
filed by Align Technology, Inc. (``Align'') of Santa Clara, California 
(now of San Jose, California). 71 FR 7995-96. The complaint 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 incremental dental positioning adjustment appliances by reason 
of infringement of certain claims of U.S. Patent Nos. 6,685,469; 
6,450,807; 6,394,801; 6,398,548; 6,722,880 (``the '880 patent''); 
6,629,840; 6,699,037; 6,318,994; 6,729,876; 6,602,070; 6,471,511 (``the 
'511 patent''); and 6,227,850. The complaint also alleged a violation 
of section 337 by reason of misappropriation of trade secrets. The 
Commission's notice of investigation named OrthoClear, Inc. of San 
Francisco, California; OrthoClear Holdings, Inc. of Tortola, British 
Virgin Islands; and OrthoClear Pakistan Pvt, Ltd. of Lahore, Pakistan 
as respondents. On July 11, 2006, the ALJ granted Align's motion to 
terminate the investigation as to the '807 patent, which the Commission 
determined not to review. Order No. 10 (July 11, 2006), Notice of Non-
Review (July 20, 2006).
    On November 13, 2006, the Commission issued notice of its 
determination not to review the presiding administrative law judge's 
initial determination granting Align's and respondents' joint motion to 
terminate the investigation as to respondents (and in its entirety) 
based on a consent order. The consent order prohibits the importing, 
offering for sale, and selling for importation in the United States 
incremental dental positioning adjustment appliances and any other 
articles that infringe the asserted patents or that contain or use the 
asserted trade secrets.
    On March 1, 2012, Align filed a complaint for enforcement 
proceedings under Commission Rule 210.75. On March 22, 2012, Align 
filed a corrected complaint for enforcement. Align asserts that the 
successors and bound officers of the original respondents have violated 
the November 13, 2006, consent order by the continued practice of 
prohibited activities such as importing, offering for sale, and selling 
for importation into the United States incremental dental positioning 
adjustment appliances and other related products that infringe the '511 
and '880 patents. On March 23, 2012, counsel for proposed respondent 
ClearCorrect Operating, LLC (``ClearCorrect USA'') submitted a letter 
opposing institution of the enforcement proceeding. On March 28, 2012, 
Align responded to ClearCorrect USA's submission.
    Having examined the complaint seeking a formal enforcement 
proceeding, and having found that the complaint complies with the 
requirements for institution of a formal enforcement proceeding 
contained in Commission rule 210.75, the Commission has determined to 
institute formal enforcement proceedings to determine whether 
ClearCorrect USA of Houston, Texas; ClearCorrect Pakistan (Private), 
Ltd. (``ClearCorrect Pakistan'') of Lahore, Pakistan; and Mudassar 
Rathore, Waqas Wahab, Nadeem Arif, and Asim Waheed (``the bound 
officers''), all c/o ClearCorrect Pakistan, are in violation of the 
November 13, 2006, consent order issued in the investigation with 
respect to the '511 and '880 patents, and what, if any, enforcement 
measures are appropriate. The following entities are named as parties 
to the formal enforcement proceeding: (1) Align; (2) respondents 
ClearCorrect USA, ClearCorrect Pakistan, and the bound officers; and 
(3) the Office of Unfair Import Investigations.
    The Commission notes that the threshold issue appears to be whether 
the accused digital datasets identified in the enforcement complaint 
that are allegedly imported into the United States are within the scope 
of the articles covered by the consent order. In instituting this 
enforcement proceeding, the Commission has not made any determination 
as to whether such digital datasets are within the scope of the consent 
order sought to be enforced. Accordingly, the presiding administrative 
law judge may wish to consider this issue at an early date. Any such 
decision should be issued in the form of an initial determination 
(``ID'') under Commission rule 210.42(c), 19 CFR 210.42(c). The ID will 
become the Commission's final determination 45 days after the date of 
service of the ID unless the Commission determines to review the ID. 
Any such review will be conducted in accordance with Commission rules 
210.43, 210.4, and 210.45, 19 CFR 210.43, 210.44, and 210.45.
    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 section 210.75 of the Commission's Rules of Practice and Procedure 
(19 CFR 210.75).

    Issued: April 25, 2012.

    By order of the Commission.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2012-10367 Filed 4-30-12; 8:45 am]
BILLING CODE 7020-02-P