[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Notices]
[Page 51142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17832]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1167 (Rescission)]


Certain Laparoscopic Surgical Staplers, Reload Cartridges, and 
Components Thereof; Notice of Commission Determination To Institute a 
Rescission Proceeding; Rescission of the Remedial Orders; Termination 
of the Rescission Proceeding

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 institute a rescission proceeding and to 
grant an unopposed petition to rescind the limited exclusion order 
(``LEO'') and cease and desist orders (``CDOs'') (collectively, ``the 
remedial orders'') issued in the underlying investigation. The 
rescission proceeding is terminated.

FOR FURTHER INFORMATION CONTACT: Benjamin S. Richards, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-5453. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
[email protected]. General information concerning the Commission may 
also be obtained by accessing its internet server at https://www.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 July 5, 2019, based on a complaint filed by Ethicon LLC of Guaynabo, 
PR; Ethicon Endo-surgery, Inc. of Cincinnati, Ohio; and Ethicon US, LLC 
of Cincinnati, Ohio (collectively, ``Ethicon''). 84 FR 32220 (July 5, 
2019); see also 84 FR 65174 (Nov. 26, 2019) (amending the caption). The 
complaint alleged violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337, based on the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain reload cartridges for laparoscopic 
surgical staplers by reason of infringement of one or more claims of 
U.S. Patent Nos. 9,844,379 (``the '379 patent''); 9,844,369; 7,490,749; 
8,479,969; and 9,113,874. 84 FR at 32220. The Commission's notice of 
investigation named the following as respondents: Intuitive Surgical 
Inc. of Sunnyvale, CA; Intuitive Surgical Operations, Inc. of 
Sunnyvale, CA; Intuitive Surgical Holdings, LLC of Sunnyvale, CA; and 
Intuitive Surgical S. De R.L. De C.V. of Mexicali, Mexico 
(collectively, ``Intuitive''). Id. The Office of Unfair Import 
Investigations did not participate in this investigation. Id.
    On October 14, 2021, the Commission issued a final determination 
finding a violation of section 337 with respect to certain laparoscopic 
surgical staplers, reload cartridges, and components thereof that 
infringed certain claims of the '379 patent. The Commission issued an 
LEO against respondents' infringing articles and CDOs against 
Intuitive. The Commission concurrently suspended enforcement of those 
orders pending the final resolution of a Final Written Decision issued 
by the Patent Trial and Appeal Board (``PTAB'') of the U.S. Patent and 
Trademark Office on March 26, 2021, finding all claims of the '379 
patent to be unpatentable.
    On May 23, 2022, the United States Court of Appeals for the Federal 
Circuit affirmed the PTAB's Final Written Decision finding the claims 
of the '379 patent unpatentable. Ethicon LLC v. Intuitive Surgical, 
Inc., Nos. 2021-1995, 2021-1997, 2022 WL 1613188 (Fed. Cir. May 23, 
2022). The Federal Circuit issued its mandate in that appeal on June 
29, 2022, and Ethicon has since indicated that it does not intend to 
seek further review of the decision.
    On July 18, 2022, Intuitive filed an unopposed petition to rescind 
the remedial orders as to the '379 patent based on a change of the 
conditions that led to the Commission's issuance of those orders, i.e., 
the Federal Circuit's affirmance of the PTAB's finding that the claims 
of the '379 patent are unpatentable. No responses to the petition were 
filed.
    Having reviewed the petition and the Federal Circuit's decision in 
Ethicon LLC v. Intuitive Surgical, Inc., the Commission finds that the 
conditions which led to the issuance of the remedial orders no longer 
exist, and therefore, granting the unopposed petition to rescind is 
warranted under section 337(k) (19 U.S.C. 1337(k)). The Commission also 
finds that the requirements of Commission Rule 210.76(a) (19 CFR 
210.76(a)) are satisfied. Accordingly, the Commission has determined to 
institute a rescission proceeding and to grant the petition to rescind 
the remedial orders. The rescission proceeding is terminated.
    The Commission vote for this determination took place on August 15, 
2022.
    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: August 15, 2022.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2022-17832 Filed 8-18-22; 8:45 am]
BILLING CODE 7020-02-P