81 FR 26255 - Certain Windshield Wiper Devices and Components; Commission Final Determination of Violation of Section 337; Termination of Investigation; Issuance of Limited Exclusion Order

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 84 (May 2, 2016)

Page Range		26255-26256
FR Document		2016-10173

Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337'') in the above- captioned investigation. The Commission has determined to issue a limited exclusion order. The investigation is terminated.

Federal Register, Volume 81 Issue 84 (Monday, May 2, 2016)

[Federal Register Volume 81, Number 84 (Monday, May 2, 2016)]
[Notices]
[Pages 26255-26256]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-10173]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-934]


 Certain Windshield Wiper Devices and Components; Commission 
Final Determination of Violation of Section 337; Termination of 
Investigation; Issuance of Limited Exclusion Order

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 found a violation of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337'') in the above-
captioned investigation. The Commission has determined to issue a 
limited exclusion order. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2301. 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 http://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at http://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 this investigation 
on October 27, 2014, based on a Complaint filed by Nobel Biocare 
Services AG of Kloten, Switzerland and Nobel Biocare USA, LLC of Yorba 
Linda, California (collectively, ``Nobel''), as supplemented. 79 FR 
63940-41 (Oct. 27, 2014). The Complaint alleges violations of section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 
337''), in the sale for importation, importation, and sale within the 
United States after importation of certain dental implants by reason of 
infringement of certain claims of U.S. Patent Nos. 8,714,977 (``the 
'977 patent'') and 8,764,443 (``the '443 patent''). The Complaint 
further alleges the existence of a domestic industry. The Commission's 
Notice of Investigation named as respondents Neodent USA, Inc., of 
Andover, Massachusetts and JJGC Ind[uacute]stria e Com[eacute]rcio de 
Materiais Dent[aacute]rios S/A of Curitiba, Brazil (collectively, 
``Respondents''). The Commission previously terminated the 
investigation in part as to certain claims of the '443 patent. Notice 
(Apr. 29, 2015); Order No. 22 (Apr. 8, 2015). The Commission also 
amended the Notice of Investigation to reflect the corporate name 
change of Neodent USA, Inc. to Instradent USA, Inc. Notice (May 6, 
2015); Order No. 24 (Apr. 9, 2015). The use of the term ``Respondents'' 
herein refers to the current named respondents.
    On October 27, 2015, the ALJ issued his final ID, finding a 
violation of section 337 with respect to asserted claims 15, 18, 19, 
30, and 32 of the '443 patent, and finding no violation with respect to 
asserted claim 17 of the '443 patent and all of the asserted claims of 
the '977 patent. In particular, the final ID finds that the accused 
products infringe claims 1-5 and 19 of the '977

[[Page 26256]]

patent and claims 15, 18, 19, 30, and 32 of the '443 patent, but do not 
infringe claim 17 of the '443 patent. The final ID also found that 
Respondents have shown that the asserted claims of the '977 patent are 
invalid for anticipation under 35 U.S.C. 102, but have not shown that 
the asserted claims of the '443 are invalid. In addition, the final ID 
found that Respondents failed to show that the asserted claims of the 
'977 and '443 patents are unenforceable due to inequitable conduct. The 
final ID further found that Nobel has satisfied the domestic industry 
requirement with respect to both the '977 and '443 patents.
    On November 10, 2015, the ALJ issued his recommended determination 
(``RD'') on remedy and bonding. The RD recommended that the appropriate 
remedy is a limited exclusion order barring entry of Respondents' 
infringing dental implants. The RD did not recommend issuance of a 
cease and desist order against any respondent. The RD recommended the 
imposition of a bond of $120 per imported unit during the period of 
Presidential review.
    On November 9, 2015, Nobel filed a petition for review of the final 
ID's finding of no violation with respect to claims 1-5 of the '977 
patent. In particular, Nobel requested review of the final ID's finding 
that the March 2003 Product Catalog of Alpha Bio Tec, Ltd. (``the 2003 
Alpha Bio Tec Catalog'') constitutes prior art under 35 U.S.C. 102(b), 
arguing that the catalog was not sufficiently publicly accessible prior 
to the critical date. Nobel also requested, if the Commission 
determines not to review the ID's prior art finding, that the 
Commission review the final ID's construction of the limitation ``the 
coronal region having a frustoconical shape'' recited in claim 1 of the 
'977 patent and, accordingly, review the final ID's finding that the 
accused products do not infringe claims 1-5 of the '977 patent under 
Nobel's proposed construction of that limitation. Nobel further argued 
that, should the Commission agree partially with Nobel concerning the 
proper construction of the limitation ``the coronal region having a 
frustoconical shape,'' the 2003 Alpha-Bio Tec Catalog does not 
anticipate the asserted claims of the '977 patent.
    No party petitioned for review of the final ID's finding that there 
is a violation of section 337 with respect to the '443 patent.
    On November 17, 2015, Respondents and the Commission investigative 
attorney each filed responses opposing Nobel's petition for review.
    On December 10, 2015, Respondents submited a post-RD statement on 
the public interest pursuant to Commission Rule 210.50(a)(4). On 
December 14, 2015, Nobel submited a post-RD statement on the public 
interest pursuant to Commission Rule 210.50(a)(4). No responses were 
filed by the public in response to the post-RD Commission Notice issued 
on November 12, 2015. See Notice of Request for Statements on the 
Public Interest, 80 FR 76574-75 (Dec. 9, 2015), see also Correction of 
Notice, 80 FR 77376-77 (Dec. 14, 2015).
    On January 14, 2016, the Commission determined to review the Final 
ID in part with respect to the '977 patent. 81 FR 3471-3473 (Jan. 21, 
2016). Specifically, the Commission determined to review the final ID's 
construction of the limitation ``coronal region having a frustoconical 
shape'' recited in claim 1 of the '977 patent with regard to whether or 
not the term ``frustoconical shape'' is an adjective that modifies the 
claimed ``coronal region'' or whether the term is an independent 
structure that may comprise only a portion of the claimed ``coronal 
region.'' In accordance with its claim construction review, the 
Commission further determined to review the final ID's infringement 
findings with respect to claims 1-5 of the '977 patent, as well as the 
final ID's finding that the technical prong of the domestic industry 
requirement is satisfied with respect to claims 1-5 of the '977 patent. 
The Commission also determined to review the final ID's finding that 
the 2003 Alpha Bio Tec Catalog is a printed publication under 35 U.S.C. 
102. The Commission further determined to review the final ID's finding 
that the 2003 Alpha Bio Tec Catalog anticipates claims 1-5 of the '977 
patent. In connection with its review, the Commission requested 
briefing on several questions. Id. at 3472.
    The Commission determined not to review the remaining issues 
decided in the final ID, including any of the Final ID's findings with 
respect to the '443 patent. The Commission also denied a motion filed 
by Nobel to amend the Administrative Protective Order issued in this 
investigation to add specific provisions permitting the use of 
discovery from this investigation in two co-pending proceedings in the 
U.S. Patent and Trademark Office captioned as Instradent USA, Inc. v. 
Nobel Biocare Services AG, IPR2015-01784, and Instradent USA, Inc. v. 
Nobel Biocare Services AG, IPR2015-01786, as well as Nobel's motion for 
leave to file a reply in support of its motion. Id. at 3473.
    On January 21, 2016, the parties filed initial submissions in 
response to the Commission's request for written submissions. On 
January 28, 2016, the parties filed response submissions.
    Having examined the record of this investigation, including the 
final ID, the petitions for review, and the responses thereto, and the 
parties' submissions on review, the Commission has determined to find 
that a violation of section 337 has occurred. The Commission has 
determined that the appropriate form of relief is a limited exclusion 
order under 19 U.S.C. 1337(d)(1), prohibiting the unlicensed entry of 
dental implants that infringe any of claims 1-5 of the '977 patent and 
claims 15, 18, 19, 30, and 32 of the '443 patent.
    The Commission has further determined that consideration of the 
public interest factors enumerated in section 337(d) (19 U.S.C. 
1337(d)) does not preclude issuance of the limited exclusion order. The 
Commission has determined that the bond for temporary importation 
during the period of Presidential review (19 U.S.C. 1337(j)) shall be 
in the amount of $120 per unit of articles subject to the exclusion 
order. The Commission's order was delivered to the President and the 
United States Trade Representative on the day of its issuance.
    The investigation is terminated.
    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: April 26, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-10173 Filed 4-29-16; 8:45 am]
 BILLING CODE 7020-02-P

Federal Register / Vol. 81, No. 84 / Monday, May 2, 2016 / Notices 26255

Archaeologist Bioarchaeology Program Additional Requestors and Disposition 708–2301. Copies of non-confidential
in early 2014. The individuals are young Lineal descendants or representatives documents filed in connection with this
adults of indeterminate sex, each of any Indian tribe or Native Hawaiian investigation are or will be available for
represented by cranial remains (Burial organization not identified in this notice inspection during official business
Project 2971). No known individuals that wish to request transfer of control hours (8:45 a.m. to 5:15 p.m.) in the
were identified. No associated funerary of these human remains should submit Office of the Secretary, U.S.
objects are present. a written request with information in International Trade Commission, 500 E
The human remains from Woodbury support of the request to Lara Noldner, Street SW., Washington, DC 20436,
County, IA, have been identified as Office of the State Archaeologist telephone (202) 205–2000. General
associated with the Oneota tradition Bioarchaeology Program, University of information concerning the Commission
based on their proximity to several other Iowa, 700 S. Clinton Street, Iowa City, may also be obtained by accessing its
Oneota sites in the area. IA 52242, telephone (319) 384–0740, Internet server at http://www.usitc.gov.
email lara-noldner@uiowa.edu, by June The public record for this investigation
At an unknown date, human remains may be viewed on the Commission’s
representing, at minimum, two 1, 2016. After that date, if no additional
requestors have come forward, transfer electronic docket (EDIS) at http://
individuals were removed from an edis.usitc.gov. Hearing-impaired
unknown site in Iowa. These human of control of the human remains to the
Iowa Tribe of Kansas and Nebraska; the persons are advised that information on
remains were part of the collection this matter can be obtained by
made by Amy Harvey (described above). Iowa Tribe of Oklahoma; the Otoe-
Missouria Tribe of Indians, Oklahoma; contacting the Commission’s TDD
Human skeletal remains found in terminal on (202) 205–1810.
material labeled as ‘‘NE Iowa, Orr the Omaha Tribe of Nebraska; the Ponca
Tribe of Nebraska; and the Ponca Tribe SUPPLEMENTARY INFORMATION: The
Focus,’’ which had been stored at
Stephens College, were transferred to of Indians of Oklahoma may proceed. Commission instituted this investigation
the Office of the State Archaeologist The Office of the State Archaeologist on October 27, 2014, based on a
Bioarchaeology Program in 2010 and Bioarchaeology Program is responsible Complaint filed by Nobel Biocare
2013. How the human remains came for notifying the Iowa Tribe of Kansas Services AG of Kloten, Switzerland and
into Harvey’s possession is unknown. and Nebraska; the Iowa Tribe of Nobel Biocare USA, LLC of Yorba
The human remains represent an adult Oklahoma; the Otoe-Missouria Tribe of Linda, California (collectively,
male aged approximately 30–50 years Indians, Oklahoma; the Omaha Tribe of ‘‘Nobel’’), as supplemented. 79 FR
and an older adult of indeterminate sex Nebraska; the Ponca Tribe of Nebraska; 63940–41 (Oct. 27, 2014). The
(Burial Project 2893, 2955). No known and the Ponca Tribe of Indians of Complaint alleges violations of section
individuals were identified. No Oklahoma that this notice has been 337 of the Tariff Act of 1930, as
associated funerary objects are present. published. amended, 19 U.S.C. 1337 (‘‘section
337’’), in the sale for importation,
The human remains from the Dated: March 31, 2016.
importation, and sale within the United
unknown site in Iowa have been Melanie O’Brien, States after importation of certain dental
identified as associated with the Oneota Manager, National NAGPRA Program. implants by reason of infringement of
tradition based on osteological and [FR Doc. 2016–10185 Filed 4–29–16; 8:45 am] certain claims of U.S. Patent Nos.
archival evidence. All human remains BILLING CODE 4312–50–P 8,714,977 (‘‘the ’977 patent’’) and
reported in this Notice were identified 8,764,443 (‘‘the ’443 patent’’). The
as Native American based on Complaint further alleges the existence
documented association with, or INTERNATIONAL TRADE of a domestic industry. The
proximity to, Oneota archeological sites. COMMISSION Commission’s Notice of Investigation
Determinations Made by the {Museum named as respondents Neodent USA,
[Investigation No. 337–TA–934]
or Federal Agency} Inc., of Andover, Massachusetts and
Certain Windshield Wiper Devices and JJGC Indústria e Comércio de Materiais
Officials of the Office of the State Components; Commission Final Dentários S/A of Curitiba, Brazil
Archaeologist Bioarchaeology Program Determination of Violation of Section (collectively, ‘‘Respondents’’). The
have determined that: 337; Termination of Investigation; Commission previously terminated the
• Pursuant to 25 U.S.C. 3001(9), the Issuance of Limited Exclusion Order investigation in part as to certain claims
human remains described in this notice of the ’443 patent. Notice (Apr. 29,
AGENCY: U.S. International Trade 2015); Order No. 22 (Apr. 8, 2015). The
represent the physical remains of 73
Commission. Commission also amended the Notice of
individuals of Native American
ancestry. ACTION: Notice. Investigation to reflect the corporate
name change of Neodent USA, Inc. to
• Pursuant to 25 U.S.C. 3001(3)(A), SUMMARY: Notice is hereby given that Instradent USA, Inc. Notice (May 6,
there are no associated funerary objects the U.S. International Trade 2015); Order No. 24 (Apr. 9, 2015). The
included in this Notice. Commission has found a violation of use of the term ‘‘Respondents’’ herein
• Pursuant to 25 U.S.C. 3001(2), there section 337 of the Tariff Act of 1930, as refers to the current named respondents.
is a relationship of shared group amended, 19 U.S.C. 1337 (‘‘section On October 27, 2015, the ALJ issued
identity that can be reasonably traced 337’’) in the above-captioned his final ID, finding a violation of
between the Native American human investigation. The Commission has section 337 with respect to asserted
srobinson on DSK5SPTVN1PROD with NOTICES

remains and the Iowa Tribe of Kansas determined to issue a limited exclusion claims 15, 18, 19, 30, and 32 of the ’443
and Nebraska; the Iowa Tribe of order. The investigation is terminated. patent, and finding no violation with
Oklahoma; the Otoe-Missouria Tribe of FOR FURTHER INFORMATION CONTACT: respect to asserted claim 17 of the ’443
Indians, Oklahoma; the Omaha Tribe of Megan M. Valentine, Office of the patent and all of the asserted claims of
Nebraska; the Ponca Tribe of Nebraska; General Counsel, U.S. International the ’977 patent. In particular, the final
and the Ponca Tribe of Indians of Trade Commission, 500 E Street SW., ID finds that the accused products
Oklahoma. Washington, DC 20436, telephone (202) infringe claims 1–5 and 19 of the ’977

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26256 Federal Register / Vol. 81, No. 84 / Monday, May 2, 2016 / Notices

patent and claims 15, 18, 19, 30, and 32 On December 10, 2015, Respondents On January 21, 2016, the parties filed
of the ’443 patent, but do not infringe submited a post-RD statement on the initial submissions in response to the
claim 17 of the ’443 patent. The final ID public interest pursuant to Commission Commission’s request for written
also found that Respondents have Rule 210.50(a)(4). On December 14, submissions. On January 28, 2016, the
shown that the asserted claims of the 2015, Nobel submited a post-RD parties filed response submissions.
’977 patent are invalid for anticipation statement on the public interest Having examined the record of this
under 35 U.S.C. 102, but have not pursuant to Commission Rule investigation, including the final ID, the
shown that the asserted claims of the 210.50(a)(4). No responses were filed by petitions for review, and the responses
’443 are invalid. In addition, the final ID the public in response to the post-RD thereto, and the parties’ submissions on
found that Respondents failed to show Commission Notice issued on November review, the Commission has determined
that the asserted claims of the ’977 and 12, 2015. See Notice of Request for to find that a violation of section 337
’443 patents are unenforceable due to Statements on the Public Interest, 80 FR has occurred. The Commission has
inequitable conduct. The final ID further 76574–75 (Dec. 9, 2015), see also determined that the appropriate form of
found that Nobel has satisfied the Correction of Notice, 80 FR 77376–77 relief is a limited exclusion order under
domestic industry requirement with (Dec. 14, 2015). 19 U.S.C. 1337(d)(1), prohibiting the
respect to both the ’977 and ’443 On January 14, 2016, the Commission unlicensed entry of dental implants that
patents. determined to review the Final ID in infringe any of claims 1–5 of the ’977
On November 10, 2015, the ALJ part with respect to the ’977 patent. 81 patent and claims 15, 18, 19, 30, and 32
issued his recommended determination FR 3471–3473 (Jan. 21, 2016). of the ’443 patent.
(‘‘RD’’) on remedy and bonding. The RD Specifically, the Commission The Commission has further
recommended that the appropriate determined to review the final ID’s determined that consideration of the
remedy is a limited exclusion order construction of the limitation ‘‘coronal public interest factors enumerated in
barring entry of Respondents’ infringing region having a frustoconical shape’’ section 337(d) (19 U.S.C. 1337(d)) does
dental implants. The RD did not recited in claim 1 of the ’977 patent not preclude issuance of the limited
recommend issuance of a cease and with regard to whether or not the term exclusion order. The Commission has
desist order against any respondent. The ‘‘frustoconical shape’’ is an adjective determined that the bond for temporary
RD recommended the imposition of a that modifies the claimed ‘‘coronal importation during the period of
bond of $120 per imported unit during region’’ or whether the term is an Presidential review (19 U.S.C. 1337(j))
the period of Presidential review. independent structure that may shall be in the amount of $120 per unit
comprise only a portion of the claimed of articles subject to the exclusion order.
On November 9, 2015, Nobel filed a
‘‘coronal region.’’ In accordance with its The Commission’s order was delivered
petition for review of the final ID’s
claim construction review, the to the President and the United States
finding of no violation with respect to
Commission further determined to Trade Representative on the day of its
claims 1–5 of the ’977 patent. In
review the final ID’s infringement issuance.
particular, Nobel requested review of
findings with respect to claims 1–5 of The investigation is terminated.
the final ID’s finding that the March
the ’977 patent, as well as the final ID’s The authority for the Commission’s
2003 Product Catalog of Alpha Bio Tec,
finding that the technical prong of the determination is contained in section
Ltd. (‘‘the 2003 Alpha Bio Tec Catalog’’)
domestic industry requirement is 337 of the Tariff Act of 1930, as
constitutes prior art under 35 U.S.C. satisfied with respect to claims 1–5 of
102(b), arguing that the catalog was not amended (19 U.S.C. 1337), and in Part
the ’977 patent. The Commission also 210 of the Commission’s Rules of
sufficiently publicly accessible prior to determined to review the final ID’s
the critical date. Nobel also requested, if Practice and Procedure (19 CFR part
finding that the 2003 Alpha Bio Tec 210).
the Commission determines not to Catalog is a printed publication under
review the ID’s prior art finding, that the 35 U.S.C. 102. The Commission further By order of the Commission.
Commission review the final ID’s determined to review the final ID’s Issued: April 26, 2016.
construction of the limitation ‘‘the finding that the 2003 Alpha Bio Tec Lisa R. Barton,
coronal region having a frustoconical Catalog anticipates claims 1–5 of the Secretary to the Commission.
shape’’ recited in claim 1 of the ’977 ’977 patent. In connection with its [FR Doc. 2016–10173 Filed 4–29–16; 8:45 am]
patent and, accordingly, review the final review, the Commission requested BILLING CODE 7020–02–P
ID’s finding that the accused products briefing on several questions. Id. at
do not infringe claims 1–5 of the ’977 3472.
patent under Nobel’s proposed The Commission determined not to INTERNATIONAL TRADE
construction of that limitation. Nobel review the remaining issues decided in COMMISSION
further argued that, should the the final ID, including any of the Final
Commission agree partially with Nobel ID’s findings with respect to the ’443 [Investigation No. 731–TA–808 (Third
concerning the proper construction of Review)]
patent. The Commission also denied a
the limitation ‘‘the coronal region motion filed by Nobel to amend the
having a frustoconical shape,’’ the 2003 Hot-Rolled Flat-Rolled Carbon-Quality
Administrative Protective Order issued Steel Products From Russia;
Alpha-Bio Tec Catalog does not in this investigation to add specific
anticipate the asserted claims of the ’977 Institution of a Five-Year Review
provisions permitting the use of
patent. discovery from this investigation in two AGENCY: United States International
No party petitioned for review of the co-pending proceedings in the U.S.
srobinson on DSK5SPTVN1PROD with NOTICES

Trade Commission.
final ID’s finding that there is a violation Patent and Trademark Office captioned ACTION: Notice.
of section 337 with respect to the ’443 as Instradent USA, Inc. v. Nobel Biocare
patent. Services AG, IPR2015–01784, and SUMMARY: The Commission hereby gives
On November 17, 2015, Respondents Instradent USA, Inc. v. Nobel Biocare notice that it has instituted a review
and the Commission investigative Services AG, IPR2015–01786, as well as pursuant to the Tariff Act of 1930 (‘‘the
attorney each filed responses opposing Nobel’s motion for leave to file a reply Act’’), as amended, to determine
Nobel’s petition for review. in support of its motion. Id. at 3473. whether revocation of the antidumping

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Document Created: 2016-04-30 13:34:38
Document Modified: 2016-04-30 13:34:38

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
Contact		Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2301. 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 http:// www.usitc.gov. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://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.
FR Citation		81 FR 26255