[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Notices]
[Pages 7856-7857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01315]



[[Page 7856]]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-968]


Certain Radiotherapy Systems and Treatment Planning Software, and 
Components Thereof; Commission Determination To Review a Final Initial 
Determination in Part and, on Review, To Affirm in Part, Vacate in Part 
and Remand Some Issues to the Administrative Law Judge, and Maintain 
Certain Issues Under Review

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``the Commission'') has determined to review in part the 
final initial determination (the ``Final ID'') issued by the presiding 
administrative law judge (``ALJ'') on October 27, 2016. As to one issue 
under review, the Commission has determined to affirm. As to other 
issues, the Commission has determined to vacate and remand the 
investigation to the ALJ for additional findings. Other issues remain 
under review.

FOR FURTHER INFORMATION CONTACT: Ron Traud, 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 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: The Commission instituted this investigation 
on October 30, 2015, based on a complaint filed by Varian Medical 
Systems, Inc. of Palo Alto, California; and Varian Medical Systems 
International AG of ZG, Switzerland (collectively, ``Varian''). 80 FR 
66934 (Oct. 30, 2015). The complaint alleges 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, or the 
sale within the United States after importation of certain radiotherapy 
systems and treatment planning software, and components thereof by 
reason of infringement of certain claims of U.S. Patent Nos. 7,945,021 
(``the '021 patent''); 8,116,430 (``the '430 patent''); 8,867,703 
(``the '703 patent''); 7,880,154 (``the '154 patent''); 7,906,770 
(``the '770 patent''); and 8,696,538 (``the '538 patent''). Id. The 
notice of investigation named as respondents Elekta AB of Stockholm, 
Sweden; Elekta Ltd. of Crawley, United Kingdom; Elekta GmbH of Hamburg, 
Germany; Elekta Inc. of Atlanta, Georgia; IMPAC Medical Systems, Inc. 
of Sunnyvale, California; Elekta Instrument (Shanghai) Limited of 
Shanghai, China; and Elekta Beijing Medical Systems Co. Ltd. of 
Beijing, China (collectively, ``Elekta''). The Office of Unfair Import 
Investigations (``OUII'') also was named as a party to the 
investigation. Id.
    Prior to the evidentiary hearing, Varian withdrew its allegations 
as to certain patent claims and also added additional claims. See 
Notice of Commission Determination Not to Review an Initial 
Determination Granting a Motion to Amend the Complaint and Notice of 
Investigation (Apr. 4, 2016). Varian proceeded at the evidentiary 
hearing on the following patents and claims: Claims 1, 4, 9, and 15 of 
the '021 patent; claims 6 and 18 of the '430 patent; claim 1 of the 
'703 patent; claims 23 and 26 of the '154 patent; claims 61, 67, and 68 
of the '770 patent; and claims 26 and 41 of the '538 patent.
    On October 27, 2016, the ALJ issued his Final ID, which finds a 
violation of section 337 by Elekta as to claims 23 and 26 of the '154 
patent; claims 26 and 41 of the '538 patent; and claim 67 of the '770 
patent. The Final ID found no violation of section 337 in connection 
with claim 61 of the '770 patent; claims 1, 4, 9, and 15 of the '021 
patent; claims 6 and 18 of the '430 patent; and claim 1 of the '703 
patent. The ALJ recommended that the Commission issue a limited 
exclusion orders directed to Elekta's accused products that infringe 
the claims for which a violation was found. The ALJ further recommended 
that cease and desist orders issue.
    Having examined the record in this investigation, including the 
Final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the Final ID in part and, on 
review, to take certain actions. In particular, the Commission has 
determined as follows:
    (1) To review the Final ID's conclusions that the claims asserted 
for infringement and/or domestic industry of the '154 patent, the '770 
patent, and the '538 patent are not invalid as obvious due to Elekta's 
witness's failure to analyze Varian's evidence of secondary 
considerations of nonobviousness. On review, the Commission has 
determined to vacate this determination and to remand the investigation 
to the ALJ with respect to this issue. The ALJ shall analyze Varian's 
evidence of secondary considerations and (1) make findings as to that 
evidence, including whether Varian has demonstrated that there is a 
nexus between the claims and the evidence of secondary considerations, 
and any other finding necessary to determine the effect of that 
evidence on whether those claims are obvious; (2) make findings as to 
whether and to what extent that evidence of secondary considerations 
supports Varian's arguments that Elekta has not shown that the asserted 
claims are obvious; and (3) reconsider the ultimate conclusion of 
whether the claims are obvious in light of the foregoing.
    (2) To review the Final ID's determination regarding the 
obviousness of the asserted claims of the '021 patent, the '430 patent, 
and the '703 patent. This issue remains under review.
    (3) To review the claim construction in the Final ID of the claim 
term ``communications network,'' as found in the asserted claims of the 
'021 and '430 patents. See, e.g., Final ID at 46-54. This issue remains 
under review.
    (4) To review the Final ID's conclusions regarding the anticipation 
of claim 18 of the '430 patent by the Jaffray MICCAI 2001 reference, 
and on review, the Commission affirms that this claim is not 
anticipated and clarifies that the indication otherwise on page 152 of 
the Final ID is a typographical error.
    (5) To review the Final ID's discussion, interpretation, and 
application of Certain Electronic Devices with Image Processing 
Systems, Components Thereof, and Associated Software, 337-TA-724, 
Comm'n Op. (Nov. 21, 2011), in analyzing the infringement of claim 18 
of the '430 patent and the asserted claims of the '154, '538, and '770 
patents, and to review the Final ID's conclusions regarding 
infringement of the aforementioned claims. See, e.g., Final ID at 133-
39, 253-57, 327, 394. This issue remains under review.
    The Commission has determined to not review the remainder of the 
Final

[[Page 7857]]

ID. The Commission does not seek further briefing at this time.
    In light of the remand, the ALJ shall set a new target date within 
thirty days of the date of this notice consistent with the Remand 
Order. The current target date for this investigation is March 16, 
2017.
    Any briefing on reviewed and remanded issues, and on remedy, 
bonding, and the public interest will follow Commission consideration 
of the remand ID.
    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: January 13, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-01315 Filed 1-19-17; 8:45 am]
 BILLING CODE 7020-02-P