[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Notices]
[Pages 66998-66999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23454]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-833]


Certain Digital Models, Digital Data, and Treatment Plans for Use 
in Making Incremental Dental Positioning Adjustment Appliances, the 
Appliances Made Therefrom, and Methods of Making the Same Rescission of 
Cease and Desist Orders; Termination of an Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to rescind the cease and desist orders issued 
in this investigation and to terminate the investigation with a finding 
of no violation of Section 337 of the Tariff Act of 1930, as amended, 
19 U.S.C. 1337 (``Section 337'').

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2532. Copies of non-
confidential 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 (https://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. 
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: This investigation was instituted on April 
5, 2012, based upon a complaint filed on behalf of Align Technology, 
Inc., of San Jose, California (``Align''), on March 1, 2012, as 
corrected on March 22, 2012. 77 FR 20648 (April 5, 2012). The complaint 
alleged violations of Section 337 in the sale for importation, 
importation, or sale within the United States after importation of 
certain digital models, digital data, and treatment plans for use in 
making incremental dental positioning adjustment appliances, the 
appliances made therefrom, and methods of making the same by reason of 
infringement of certain claims of U.S. Patent No. 6,217,325 (``the '325 
patent''); U.S. Patent No. 6,471,511 (``the '511 patent''); U.S. Patent 
No. 6,626,666 (``the '666 patent''); U.S. Patent No. 6,705,863 (``the 
'863 patent''); U.S. Patent No. 6,722,880 (``the '880 patent''); U.S. 
Patent No. 7,134,874 (``the '874 patent''); and U.S. Patent No. 
8,070,487 (the '487 patent''). The notice of institution named as 
respondents ClearCorrect Pakistan (Private), Ltd. of Lahore, Pakistan 
(``CCPK'') and ClearCorrect Operating, LLC of Houston, Texas (``CCUS'') 
(collectively, ``the Respondents''). A Commission investigative 
attorney (``IA'') participated in the investigation.
    On May 6, 2013, the presiding administrative law judge (``ALJ'') 
issued his final initial determination (``ID''), finding a violation of 
Section 337 with respect to the '325 patent, the '880 patent, the '487 
patent, the '511 patent, the '863 patent, and the '874 patent. He found 
no violation as to the '666 patent. The ALJ recommended the issuance of 
cease and desist orders directed to the Respondents.
    After receiving briefing from the parties and the public, on April 
3, 2014, the Commission issued notice of its determination to affirm-
in-part, modify-in-part, and reverse-in-part the final ID and to find a 
violation of Section 337. 79 FR 19640-41 (Apr. 9, 2014). The Commission 
found a violation of Section 337 with respect to (i) claims 1 and 4-8 
of the '863 patent; (ii) claims 1, 3, 7, and 9 of the '666 patent; 
(iii) claims 1, 3, and 5 of the '487 patent; (iv) claims 21, 30, 31 and 
32 of the '325 patent; and (v) claim 1 of the '880 patent. On the same 
day, the Commission issued an opinion, with a dissenting opinion from 
Commissioner Johanson, and also issued cease and desist orders directed 
to CCUS and CCPK. The Commission terminated the investigation.
    On May 2, 2014, the Respondents filed a motion to stay the cease 
and desist orders pending appeal. On May 14, 2014, Complainant Align 
and the IA filed responses in opposition. On June 2, 2014, the 
Commission issued a notice and order granting the motion.
    ClearCorrect and Align each took appeals of the Commission's 
determination to the U.S. Court of Appeals for the Federal Circuit. In 
ClearCorrect's appeal, the Federal Circuit reversed the Commission's 
decision that the electronic transmission of the digital models could 
constitute an imported ``article'' within the meaning of 19 U.S.C. 
1337, and remanded the case to the Commission. ClearCorrect Operating, 
LLC v. ITC, 810 F.3d 1283 (Fed. Cir. 2015), reh'g en banc denied,

[[Page 66999]]

819 F.3d 1334 (2016). No petition for certiorari was filed with the 
Supreme Court.
    In Align's appeal, the Federal Circuit vacated and remanded the 
case to the Commission ``for further proceedings in light of'' the 
ClearCorrect decision. Align Tech., Inc. v. ITC, 622 F. App'x 910 (Fed. 
Cir. 2015).
    In view of the foregoing final decisions of the Federal Circuit, 
the Commission has determined to rescind the cease and desist orders 
issued in this investigation. The investigation is terminated with a 
finding of no violation of section 337.
    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: September 23, 2016.
Katherine Hiner,
Acting Supervisory Attorney.
[FR Doc. 2016-23454 Filed 9-28-16; 8:45 am]
 BILLING CODE 7020-02-P