[Federal Register Volume 89, Number 127 (Tuesday, July 2, 2024)]
[Notices]
[Pages 54857-54858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14524]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1344]


Certain Bio-Layer Interferometers and Components Thereof; Notice 
of Commission Decision To Review in Part, and on Review To Affirm With 
Modification a Final Initial Determination Finding No Violation of 
Section 337; Termination of the Investigation

AGENCY: 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 in part a final initial 
determination (``FID'') of the presiding Administrative Law Judge 
(``ALJ'') finding no violation of section 337, and on review, to affirm 
the FID with modification. Accordingly, the investigation is terminated 
with a finding of no violation of section 337.

FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-4716. 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: On November 29, 2022, the Commission 
instituted this investigation under section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on a 
complaint filed by Sartorius Bioanalytical Instruments, Inc. 
(``Sartorius'') of Bohemia, New York. See 87 FR 73329-30 (Nov. 29, 
2022). The complaint, as supplemented, alleges a violation 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 bio-layer interferometers and components thereof by reason of 
the infringement of certain claims of U.S. Patent Nos. 7,445,887 (``the 
'887 patent''); 7,394,547 (``the '547 patent''); 7,728,982 (``the '982 
patent); and 8,305,585 (``the '585 patent''). See id. The notice of 
investigation names Gator Bio, Inc. (``Gator Bio'') of Palo Alto, 
California as the sole respondent in the investigation. Id. The Office 
of Unfair Import Investigations (``OUII'') is also a party to the 
investigation. Id.
    The Commission previously terminated the investigation as to the 
'547, '982, and '585 patents and claims 1-5, 7, 9-14, and 16-18 of the 
'887 patent based on the withdrawal of the complaint as to those 
patents and claims. See Order No. 14 (May 15, 2023), unreviewed by 
Comm'n Notice (June 9, 2023); Order No. 26 (June 29, 2023), unreviewed 
by Comm'n Notice (July 20, 2023); Order No. 37 (Oct. 26, 2023), 
unreviewed by Comm'n Notice (Nov. 27, 2023).
    On March 8, 2024, the ALJ issued the FID finding no violation of 
section 337. Specifically, the FID finds that the accused products do 
not infringe claim 8 of the '887 patent, and that the domestic industry 
products do not practice that claim, thus finding that the technical 
prong of the domestic industry requirement is not satisfied. The FID 
also finds that claim 8 of the '887 patent is not invalid. The FID 
further finds, should the Commission find that the technical prong is 
satisfied, that the economic prong of the domestic industry requirement 
is satisfied with respect to the '887 patent.
    On March 22, 2024, Sartorius petitioned for Commission review of 
the FID's finding of no violation of section 337. Specifically, 
Sartorius requests Commission review of certain findings of the FID 
including with respect to: (1) importation and in rem jurisdiction; (2) 
whether the accused instruments are ``articles that infringe''; (3) 
claim construction; (4) non-infringement; and (5) non-satisfaction of 
the technical prong of the domestic industry requirement. On the same 
day, Gator Bio filed a contingent petition for review requesting review 
of certain FID's findings including with respect to: (1) infringement; 
(2) invalidity; and (3) the domestic industry requirement (economic 
prong and technical prong). On April 3, 2024, the parties, including 
OUII, filed responses to the parties' petitions.
    Having examined the record of this investigation, including the FID 
and the parties' submissions, the Commission has determined to review 
in part and on review, to affirm with modification the FID's 
determination of no violation of section 337. Specifically, as 
explained in the Commission Opinion filed concurrently herewith, the 
Commission has determined to review certain findings of the FID and, on 
review to: (1) take no position on the FID's findings of no importation 
with respect to Gator Bio's probes and kits; (2) vacate the FID's 
findings of no in rem jurisdiction with respect to Gator Bio's probes 
and kits; (3) find that Gator Bio's instruments are not ``articles that 
infringe'' because the accused products do not infringe the asserted 
claim; (4) modify the claim construction of the preamble of claim 8, 
``assaying enzyme activity,'' and the claim term ``air gap''; (5) 
affirm with modification the FID's finding that the accused products do 
not infringe claim 8 of the '887 patent; (6) affirm with modification 
the FID's finding that the domestic industry products do not practice 
claim 8 of the '887 patent, and thus Sartorius does not satisfy the 
technical prong of the domestic industry requirement; and (7) take no 
position as to the FID's finding that Sartorius satisfies the economic 
prong of the domestic industry requirement. The Commission has 
determined not to review the remainder of the FID. Accordingly, the 
investigation is terminated with a finding of no violation of section 
337.
    The Commission's vote for this determination took place on June 26, 
2024.
    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.


[[Page 54858]]


    Issued: June 26, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-14524 Filed 7-1-24; 8:45 am]
BILLING CODE 7020-02-P