[Federal Register Volume 84, Number 115 (Friday, June 14, 2019)]
[Notices]
[Pages 27802-27803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12549]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1068]
Certain Microfluidic Devices; Notice of Request for Supplemental
Submissions From the Parties and Interested Members of the Public and
Interested Government Agencies; 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'') is requesting supplemental submissions
from the parties and interested members of the public and interested
government agencies. The target date in this investigation has been
extended to August 15, 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 (https://www.usitc.gov). The public record for this investigation may be viewed
on the Commission's Electronic Docket Information System (``EDIS'')
(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, California (``Bio-Rad'') and Lawrence
Livermore National Security, LLC of Livermore, California
(collectively, ``Complainants''). 82 FR 42115 (Sept. 6, 2017).
Complainants alleged a violation of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337''), by 10X Genomics,
Inc. of Pleasanton, California (``10X'') based on its importation into
the United States of certain microfluidic devices asserted to infringe
one or more claims of U.S. Patent Nos. 9,500,664; 9,636,682; 9,649,635;
and 9,126,160. Id. The Office of Unfair Import Investigations was also
named as a party in this investigation. Id. The Commission also
directed the ALJ to take evidence and hear arguments regarding the
public interest and provide the Commission with findings of fact and a
recommended determination on the statutory public interest factors, as
requested by 10X. Id.
On September 20, 2018, the presiding administrative law judge
(``ALJ'') issued a final initial determination finding that 10X
violated section 337 through its importation of its GEM-Q and GEM-U
Chips (collectively, the ``GEM Chips''). However, the ALJ found no
violation by 10X based on its importation of its Chip SE or Chip GB.
On September 28, 2018, the ALJ issued a recommended determination
on remedy, bonding, and the public interest (the ``RD''). The ALJ
recommended that, if the Commission finds a violation of section 337,
it should issue a limited exclusion order (``LEO'') against infringing
microfluidic devices, which are imported, sold for importation, and/or
sold after importation by 10X. The LEO would prevent the importation by
10X of microfluidic devices that infringe Complainants' asserted
patents. The ALJ further recommended that, if the Commission finds a
violation of section 337, it should issue a cease and desist order
(``CDO'') against 10X. The CDO would prevent the transfer by 10X to
others of microfluidic devices that infringe Complainants' asserted
patents. The ALJ found that ``the public interest factors weigh in
favor of imposition of the recommended remedial orders.'' RD at 30.
On December 4, 2018, the Commission determined to review the ALJ's
findings as to the GEM Chips, the Chip SE, and the Chip GB. 83 FR 63672
(Dec. 11, 2018). Accordingly, the Commission may find a section 337
violation and issue an LEO or CDO or both relating to any or all of
those products. However, prior to issuing remedial orders, the
Commission must consider the effect of those remedial orders on the
public interest. 19 U.S.C. 1337(d)(1), (f)(1). Given the current
record, the Commission is requesting additional information regarding
the public interest from the parties, interested members of the public,
and government agencies.
The parties, interested members of the public, and interested
government agencies are requested to provide statements and comments on
the following public interest issues. The Commission is particularly
interested in responses that include detailed information regarding
specific research projects being conducted in the United States as of
the date of this Notice.
(1) For current research projects being conducted in the United
States, please provide the following information:
a. Please quantify and explain what, if any, research setbacks
(such as loss of time, money, samples, or usable data) would occur if
the specific current research project(s) were required to be switched
from 10X's GEM Chips to another system.
b. Please explain and quantify the extent to which the Chip SE
could replace the GEM Chips in the current ongoing research project(s)
discussed above.
c. To what extent would delaying the effect of any exclusion or
cease and desist order covering 10X's GEM Chips ameliorate or prevent
such setbacks for the specific research project(s)? How long of a delay
in the effective date of a remedial order would be necessary to allow
the specific ongoing research project(s) to continue to completion with
10X's GEM Chips?
(2) Are there research areas for which 10X's GEM Chips used with
10X's Chromium Controllers are the only acceptable research platform?
If so, why are alternative products not acceptable?
(3) If the Commission were to tailor its remedial orders to allow
researchers using the GEM Chips in the United States as of the date of
this Notice to continue to receive the GEM Chips:
a. Please provide proposed remedial order language for a
certification that would permit only imports for researchers who have a
documented need to continue to receive the GEM Chips for a specific
current research project that cannot be met by any alternative product,
including the Chip SE.
b. Please explain how your proposed language for that exception
allows the continued receipt of the GEM Chips by those U.S. researchers
only for research
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ongoing as of the date of this Notice and only until the completion of
that research.
c. Please include examples of the types of documentation that you
contend would support the requirements above, and which correspond to
your proposed remedial order language.
(4) If the Commission were to tailor any remedial order to allow
receipt of the GEM Chips by researchers in the United States who will
begin research for which the GEM Chips are the only acceptable option
to perform that research:
a. Please provide proposed remedial order language for a
certification that would permit only imports for researchers who have a
documented need to receive the GEM Chips for a specific research
project that cannot be met by any alternative product, including the
Chip SE.
b. Please explain how your proposed language for that exception
allows the receipt of the GEM Chips only for such research and only
until the completion of that research.
c. Please include examples of the types of documentation that you
contend would support the requirements above, and which correspond to
your proposed remedial order language.
(5) In its initial public interest submission to the Commission,
10X requested the Commission to delegate public interest to the ALJ to
``permit development of the evidentiary record to ensure that these
public interest issues are properly addressed.'' 10X Sub. at 5 (Aug.
14, 2017). The parties are requested to respond to the following:
a. Why did the parties fail to develop the evidentiary record in
the hearing before the ALJ to include specific information and
statements from third-party researchers of the sort that were included
in 10X's exhibits 7 and 8 in its January 30, 2019 Response to Written
Submissions Pursuant to Commission's December 4, 2018 Notice?
b. How should Commission Rule 210.4(c)(1) apply to 10X's filing of
its exhibits 7 and 8 and related argument in its January 30, 2019
Response to Written Submissions Pursuant to Commission's December 4,
2018 Notice?
c. If a sanction is warranted under Commission Rule 210.4(d), who
should be sanctioned, what should that sanction be, and what procedure
should be followed to impose such sanction, if any?
(6) 10X is requested to supply the following:
a. A list of current U.S. customers of its GEM Chips; the specific
research project(s) being performed as of the date of this Notice by
each customer; the amount of GEM Chips supplied to each U.S. customer
per month; and the estimated date for the completion of the research
project(s) using those chips.
b. An update on the timeline for availability of the Chip SE to its
customers in commercial quantities.
The Commission has additionally determined to extend the target
date in this investigation to August 15, 2019.
Written Submissions: The parties to the investigation are requested
to file opening and reply written submissions on the issues identified
in this Notice. The parties' opening written submissions must be filed
no later than close of business on June 24, 2019. The parties' reply
submissions must be filed no later than the close of business on July
1, 2019. No further submissions on any of these issues will be
permitted unless otherwise ordered by the Commission.
Interested members of the public and interested government agencies
are also requested to file submissions to certain issues identified in
this Notice. Members of the public and government agencies must file
their statements and comments no later than the close of business on
July 1, 2019.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit 8
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/documents/handbook_on_filing_procedures.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 non-confidential 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: June 10, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-12549 Filed 6-13-19; 8:45 am]
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