[Federal Register Volume 84, Number 142 (Wednesday, July 24, 2019)]
[Notices]
[Pages 35688-35690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15684]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1091]
Certain Color Intraoral Scanners and Related Hardware and
Software; Notice of a Commission Determination To Review In-Part the
Final Initial Determination; Request for Briefing
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 determined to review the final initial determination
(``ID'') in-part and requests briefing from the parties.
FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Esq., Office
of the General Counsel, U.S. International Trade Commission, 500 E
Street SW, Washington, DC 20436, telephone (202) 205-2737. 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 on (202)
205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted the underlying
investigation on December 20, 2017, based on a complaint filed on
behalf of Align Technology, Inc. of San Jose, California (``Align'').
82 FR (Dec. 20, 2017). The complaint alleged violations of section 337
based upon the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain color intraoral scanners and related hardware and software by
reason of infringement of certain claims of U.S. Patent Nos. 8,363,228
(``the '228 patent''); 8,451,456 (``the '456 patent''); 8,675,207
(``the '207 patent''); 9,101,433 (``the '433 patent''); 948,931; and
6,685,470. See id. The complaint named 3Shape A/S and 3Shape Inc. as
the respondents. On March 15, 2018, the ALJ granted Align's unopposed
motion to amend the complaint and notice of
[[Page 35689]]
investigation to add 3Shape Trios A/S of Copenhagen, Denmark as an
additional respondent in this investigation. See 83 FR 13781-82 (March
30, 2018), unreviewed, Notice (March 27, 2018). The Office of Unfair
Import Investigations did not participate in the investigation.
On March 1, 2019, the ALJ issued his final ID finding that no
violation of section 337 has occurred. On March 18, 2019, Align filed a
petition for review and 3Shape filed a contingent petition for review
of the ID. On March 26, 2019, all of the parties filed responses to the
respective petitions for review.
Having examined the record of this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined to review the final ID in-part.
Specifically, the Commission has determined to review the ID's findings
on (1) importation; (2) the construction of ``processor''; (3) the
construction of ``confocal imaging techniques''; (4) all findings
concerning infringement; (5) all findings concerning invalidity; (6)
all findings concerning whether Align's products practice one or more
claims of the asserted patents; and (7) all findings concerning whether
Align's financial investments and activities relating to Align's
products meet the domestic industry requirement.
In connection with its review, the Commission is interested in
responses to the following questions from the parties:
1. Discuss whether the ``processor'' term of the asserted claims
is understood by persons of ordinary skill in the art to have a
sufficiently definite meaning as the name for structure? Is the
``processor'' of the asserted claims a general purpose processor?
Please discuss and identify any expert testimony addressing these
questions.
2. If the Commission determines that the claimed ``processor''
of the asserted claims is subject to means-plus-function treatment
under 35 U.S.C. 112, ] 6, please identify the corresponding
structure(s) in the specification and the proper construction for
each of the asserted patents.
3. Did Respondents show by clear and convincing evidence that a
person of ordinary skill in the art would not find, from reading the
specification, that the inventor had ``possession'' of a hand-held
device having the claimed processor for the '228, '456, and '207
patents? See Ariad Pharm., Inc. v. Eli Lilly and Co., 598 F.3d 1336,
1351 (Fed. Cir. 2010) (en banc). Include citations to expert
testimony in your response.
4. Does the language of claim 1 of the '228, '456, and '207
patents require that the ``depth data'' be the depth of the scanned
three-dimensional object? See 3Shape Pet. at 13-14.
5. Did Align waive its argument that its domestic industry
products practice the asserted patents by introducing a new theory/
evidence for the first time in its petition for review? See Align
Pet. at 43-45; 3Shape Resp. at 19-20.
6. For the '228, '456, and '207 patents, is the evidence relied
on by the parties before the ALJ sufficient to establish that the
domestic industry products ``associate the depth data with the color
image data''? Please discuss all relevant evidence.
7. Did Respondents waive their challenge to the specific
percentages used to determine the significance of Align's domestic
industry investments? Align Resp. at 45.
8. In analyzing domestic industry, did the ID improperly credit
expenses that were incurred after the filing of the complaint in
this investigation or expenses that were unrelated to the domestic
industry products? See 3Shape Pet. at 53-54. If certain expenses
were improperly included in the analysis, please discuss whether
Align's investments without the improper expenses were significant.
The parties are requested to brief only the discrete issues above,
with reference to the applicable law and evidentiary record. The
parties are not to brief other issues on review, which are adequately
presented in the parties' existing filings.
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 one or more cease and desist orders that could result in the
respondents 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, Comm'n Op. at 7-10
(December 1994).
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: The parties to the investigation are requested
to file written submissions on the issues identified in this notice.
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. Complainant is requested to submit proposed
remedial orders for the Commission's consideration. Complainant is also
requested to state the date that the subject patents expire and the
HTSUS numbers under which the accused products are imported.
Complainant is further requested to supply the names of known importers
of the Respondents' products at issue in this investigation.
The written submissions and proposed remedial orders must be filed
no later than close of business on Tuesday, July 30, 2019. Reply
submissions must be filed no later than the close of business on
Tuesday, August 6, 2019. Opening submissions are limited to 75 pages.
Reply submissions are limited to 50 pages. 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 2.10.4(f)). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1091'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/
rules/
[[Page 35690]]
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,\1\ solely for
cybersecurity purposes. All nonconfidential written submissions will be
available for public inspection at the Office of the Secretary and on
EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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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: July 18, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-15684 Filed 7-23-19; 8:45 am]
BILLING CODE 7020-02-P