[Federal Register Volume 83, Number 237 (Tuesday, December 11, 2018)]
[Notices]
[Pages 63672-63674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26740]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1068]
Certain Microfluidic Devices; Commission Determination To Review
in Part a Final Initial Determination Finding a Violation of Section
337; Schedule for Filing Written Submissions on the Issues Under Review
and on Remedy, the Public Interest, and Bonding; Extension of Target
Date
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 ``ID'') issued by the presiding
administrative law judge (``ALJ'') on September 20, 2018, finding a
violation of the Tariff Act of 1930, as amended, in connection with
certain asserted patents. The Commission has also determined to extend
the target date for the completion of this investigation to February
11, 2019.
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 at 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, telephone 202-205-1810.
SUPPLEMENTARY INFORMATION: On September 6, 2017, the Commission
instituted this investigation based on a complaint filed by Bio-Rad
Laboratories, Inc. of Hercules, CA; and Lawrence Livermore National
Security, LLC of Livermore, CA (collectively, ``complainants''). 82 FR
42115 (Sept. 6, 2017). The complaint (and supplement thereto) alleges
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337 (``section 337'') based
[[Page 63673]]
upon the importation into the United States, the sale for importation,
or the sale within the United States after importation of certain
microfluidic devices by reason of infringement of one or more of claims
1-12 and 14-16 of U.S. Patent No. 9,500,664 (``the '664 patent'');
claims 1-15 of U.S. Patent No. 9,089,844 (``the '844 patent''); claims
1-21 of U.S. Patent No. 9,636,682 (``the '682 patent''); claims 1-27 of
U.S. Patent No. 9,649,635 (``the '635 patent''); and claims 1, 2, 4-8,
and 14-21 of U.S. Patent No. 9,126,160 (``the '160 patent). Id. The
Commission's notice of investigation named as the sole respondent 10X
Genomics, Inc. of Pleasanton, CA (``10X''). Id. The Office of Unfair
Import Investigations was also named as a party to this investigation.
Id.
On March 6, 2018, the Commission terminated the investigation as to
claims 14-17 of the '160 patent; claim 3 of the '664 patent; claims 2,
8, 11, and 14-15 of the '844 patent; claims 2-3 of the '682 patent; and
claims 2-4, 9-10, 15, 22, and 27 of the '635 patent. See Order No. 12,
unreviewed, Notice of Commission Determination Not to Review an Initial
Determination (Order No. 12) Partially Terminating the Investigation as
to Certain Patent Claims (March 6, 2018). On March 26, 2018, the
Commission terminated the investigation as to claims 1 and 18 of the
'160 patent; claims 6, 7, 9, and 13 of the '844 patent; claims 4 and 13
of the '682 patent; and claims 5 and 17 of the '635 patent. See Order
No. 16, unreviewed, Notice of Commission Determination Not to Review an
ID (Order No. 16) Partially Terminating the Investigation as to Certain
Patent Claims (March 26, 2018). On April 16, 2018, the Commission
terminated the investigation as to claims 2, 6, 7, and 19 of the '160
patent; claims 5-7, 10, and 12 of the '664 patent; claims 1, 3-5, 10,
and 12 of the '844 patent; claims 5-6, 8, 10-12, 15, and 20-21 of the
'682 patent; and claims 6-8, 11-12, 18-20, and 23-26 of the '635
patent. See Order No. 19, unreviewed, Notice of Commission
Determination Not to Review an Initial Determination (Order No. 19)
Partially Terminating the Investigation as to U.S. Patent No. 9,089,844
and Other Asserted Patent Claims (Apr. 16, 2018).
On September 20, 2018, the ALJ issued the ID, which finds 10X in
violation of section 337 as to the '664 patent, the '682 patent, and
the '635 patent. On September 28, 2018, the ALJ issued her
recommendations on remedy, bond, and the public interest. The ALJ
recommended that the Commission issue a limited exclusion order
directed to 10X's infringing products and a cease and desist order
directed to 10X. The ALJ also recommended a bond of 100 percent of
entered value during the Presidential review period. See 19 U.S.C.
1337(j)(3).
On October 3, 2018, Complainants and 10X each filed petitions for
review. OUII did not file a petition for review. On October 11, 2018,
the Complainants, 10X, and OUII filed responses to those petitions.
Having examined the record in this investigation, including the ID,
the petitions for review, and the responses thereto, the Commission has
determined to review the ID in part. In particular, the Commission has
determined to review the following:
(1) Whether 10X indirectly infringes the '682 and '635 patents.
(2) Whether 10X's Chip GB infringes claims 1 and 14 of the '664
patent.
(3) Whether 10X's Chip SE infringes claim 20 of the '160 patent and
claim 1 of the '664 patent.
As the petitions and responses thereto have adequately addressed
these issues, the Commission does not request any briefing on these
issues. The Commission has determined to not review the remainder of
the ID.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue a cease and desist order that could result in the respondent
being required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. Accordingly, the Commission is
interested in receiving written submissions that address the form of
remedy, if any, that should be ordered. If a party seeks exclusion of
an article from entry into the United States for purposes other than
entry for consumption, the party should so indicate and provide
information establishing that activities involving other types of entry
either are adversely affecting it or likely to do so. For background,
see Certain Devices for Connecting Computers via Telephone Lines, Inv.
No. 337-TA-360, USITC Pub. No. 2843 (December 1994) (Commission
Opinion).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove the Commission's action. See Presidential Memorandum of
July 21, 2005. 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission and prescribed by the
Secretary of the Treasury. The Commission is therefore interested in
receiving submissions concerning the amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should address the recommended
determination by the ALJ on remedy and bonding. Complainants and OUII
are requested to submit proposed remedial orders for the Commission's
consideration. Complainants are also requested to state the date that
the patents expire and the HTSUS numbers under which the accused
products are imported. Complainants are further requested to supply the
names of known importers of the products at issue in this
investigation. The written submissions and proposed remedial orders
must be filed no later than close of business on December 17, 2018.
Reply submissions must be filed no later than the close of business on
December 24, 2018. Such submissions should address the ALJ's
recommended determinations on remedy and bonding and the public
interest. No further submissions on any of these issues will be
permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit eight
true paper copies to the Office of the Secretary by noon the next day
pursuant to section 210.4(f) of the Commission's Rules of Practice and
Procedure (19 CFR 210.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1068'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, https://www.usitc.gov/secretary/fed_reg_notices/
rules/
[[Page 63674]]
handbook_on_electronic_filing.pdf). Persons with questions regarding
filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel, solely for cybersecurity
purposes (all contract personnel will sign appropriate nondisclosure
agreements). All nonconfidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
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: December 4, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-26740 Filed 12-10-18; 8:45 am]
BILLING CODE 7020-02-P