[Federal Register Volume 83, Number 30 (Tuesday, February 13, 2018)]
[Notices]
[Pages 6213-6214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02854]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1032]


Certain Single-Molecule Nucleic Acid Sequencing Systems and 
Reagents, Consumables, and Software for Use With Same Commission's 
Final Determination Finding No Violation of Section 337; Termination of 
the Investigation

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 found no violation of section 337 of the Tariff Act of 
1930, as amended, in this investigation. The investigation is 
terminated.

FOR FURTHER INFORMATION CONTACT: Lucy Grace D. Noyola, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone 202-205-3438. 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 December 8, 2016, based on a complaint filed by Pacific Biosciences 
of California, Inc. of Menlo Park, California (``PacBio''). 81 FR 
88703, 88703-04 (Dec. 8, 2016). The complaint, as amended, 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, and the sale within the United States after importation of 
certain single-molecule nucleic acid sequencing systems and reagents, 
consumables, and software for use with same by reason of infringement 
of certain claims of U.S. Patent Nos. 9,404,146 (``the '146 patent'') 
and 9,542,527 (``the '527 patent''). Id. at 88704; 82 FR 15236 (Mar. 
27, 2017). The notice of investigation named as respondents Oxford 
Nanopore Technologies Ltd. of Oxford, United Kingdom; Oxford Nanopore 
Technologies, Inc. of Cambridge, Massachusetts; and Metrichor, Ltd. of 
Oxford, United Kingdom (collectively, ``Oxford''). 81 FR at 88704. The 
Office of Unfair Import Investigations (``OUII'') also was named as a 
party to the investigation. Id.
    On May 23, 2017, the presiding administrative law judge (``ALJ'') 
issued Order No. 10 (``Markman Order''), construing the limitations 
``single-molecule sequencing process,'' which is recited in claims 1, 
5-7, 14, and 16-17 of the '146 patent and claims 1 and 3-4 of the '527 
patent, and ``single-molecule sequencing,'' which is recited in claims 
20-21 of the '146 patent (collectively, ``single-molecule sequencing'' 
limitations).

[[Page 6214]]

    On June 8, 2017, PacBio filed a motion for summary determination 
that the domestic industry requirement is satisfied. On June 9, 2017, 
Oxford filed a motion for summary determination of (1) noninfringement 
as to all accused products because they do not satisfy the ``single-
molecule sequencing'' limitations; (2) noninfringement as to a subset 
of the accused products (directed solely to Oxford's 1D or 1D\2\ 
sequencing processes) because they do not satisfy the ``linker'' 
limitations; and (3) noninfringement as to a subset of the accused 
products (not directed solely to Oxford's 1D or 1D\2\ sequencing 
processes) because they are capable of substantial noninfringing uses.
    On July 19, 2017, the ALJ issued an ID (Order No. 12), granting in 
part Oxford's summary determination motion. Specifically, the ID 
incorporated the Markman Order by reference and found no infringement 
of claims 1, 5-7, 10, 14, 16-21, and 23-25 of the '146 patent and 
claims 1 and 3-11 of the '527 patent based on the Markman Order's 
construction of the ``single-molecule sequencing'' limitations. The ID 
denied as moot Oxford's second and third requests for summary 
determination of noninfringement, as well as PacBio's motion for 
summary determination on the economic prong of the domestic industry 
requirement. The ID found no violation of section 337.
    On July 31, 2017, PacBio filed a petition for review of the Markman 
Order's construction of ``single-molecule sequencing'' and the ID's 
finding of noninfringement. On August 7, 2017, Oxford and OUII filed 
responses to PacBio's petition. On August 16, 2017, PacBio filed a 
motion for leave to file a reply in support of its petition for review. 
On August 28, 2017, Oxford filed an opposition to PacBio's motion.
    On September 5, 2017, the Commission determined to review the ID in 
its entirety and to deny PacBio's motion for leave to file a reply. 
Notice (Sept. 5, 2017). The Commission also requested additional 
briefing from the parties on certain issues.
    On September 15, 2017, Oxford and OUII filed initial written 
submissions addressing the Commission's questions. On September 18, 
2017, PacBio filed its initial written submission. On September 22, 
2017, Oxford and OUII filed response briefs. On September 22, 2017, and 
September 29, 2017, PacBio filed its response briefs.
    Having examined the record of this investigation, including the ID 
and the parties' submissions, the Commission has determined to adopt, 
on modified grounds described in the concurrently-issued opinion, the 
Markman Order's construction of the ``single-molecule sequencing'' 
limitations. The Commission has also determined to affirm the ID's 
finding of noninfringement of claims 1, 5-7, 10, 14, 16-21, and 23-25 
of the '146 patent and asserted claims 1 and 3-11 of the '527 patent 
and the ID's finding of no violation of section 337. The Commission 
denies PacBio's request for oral argument.
    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: February 7, 2018.
Lisa R. Barton,
Secretary to the Commission.

[FR Doc. 2018-02854 Filed 2-12-18; 8:45 am]
 BILLING CODE 7020-02-P