81 FR 31255 - Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof; Institution of Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 96 (May 18, 2016)

Page Range		31255-31256
FR Document		2016-11667

Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 14, 2016, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of ResMed Corp. of San Diego, California; ResMed Inc. of San Diego, California; and ResMed Ltd. of Australia. A corrected complaint was filed on April 18, 2016, and a supplement was filed on April 19, 2016. The corrected complaint alleges 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 sleeping-disordered breathing treatment systems and components thereof by reason of infringement of certain claims of U.S. Patent No. RE44,453 (``the '453 patent''); U.S. Patent No. 8,020,551 (``the '551 patent''); U.S. Patent No. 8,006,691 (``the '691 patent''); and U.S. Patent No. 9,072,860 (``the '860 patent''). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337. The complainants request that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.

Federal Register, Volume 81 Issue 96 (Wednesday, May 18, 2016)

[Federal Register Volume 81, Number 96 (Wednesday, May 18, 2016)]
[Notices]
[Pages 31255-31256]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-11667]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-997]


Certain Sleep-Disordered Breathing Treatment Systems and 
Components Thereof; Institution of Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that a complaint was filed with the 
U.S. International Trade Commission on April 14, 2016, under section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of 
ResMed Corp. of San Diego, California; ResMed Inc. of San Diego, 
California; and ResMed Ltd. of Australia. A corrected complaint was 
filed on April 18, 2016, and a supplement was filed on April 19, 2016. 
The corrected complaint alleges 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 
sleeping-disordered breathing treatment systems and components thereof 
by reason of infringement of certain claims of U.S. Patent No. RE44,453 
(``the '453 patent''); U.S. Patent No. 8,020,551 (``the '551 patent''); 
U.S. Patent No. 8,006,691 (``the '691 patent''); and U.S. Patent No. 
9,072,860 (``the '860 patent''). The complaint

[[Page 31256]]

further alleges that an industry in the United States exists as 
required by subsection (a)(2) of section 337.
    The complainants request that the Commission institute an 
investigation and, after the investigation, issue a limited exclusion 
order and cease and desist orders.

ADDRESSES: The complaint, except for any confidential information 
contained therein, is 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., Room 112, Washington, 
DC 20436, telephone (202) 205-2000. Hearing impaired individuals are 
advised that information on this matter can be obtained by contacting 
the Commission's TDD terminal on (202) 205-1810. Persons with mobility 
impairments who will need special assistance in gaining access to the 
Commission should contact the Office of the Secretary at (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.

FOR FURTHER INFORMATION CONTACT: The Office of Unfair Import 
Investigations, U.S. International Trade Commission, telephone (202) 
205-2560.

SUPPLEMENTARY INFORMATION: 
    Authority: The authority for institution of this investigation is 
contained in section 337 of the Tariff Act of 1930, as amended, and in 
section 210.10 of the Commission's Rules of Practice and Procedure, 19 
CFR 210.10 (2015).
    Scope of Investigation: Having considered the complaint, the U.S. 
International Trade Commission, on May 11, 2016, ordered that--
    (1) Pursuant to subsection (b) of section 337 of the Tariff Act of 
1930, as amended, an investigation be instituted to determine whether 
there is a violation of subsection (a)(1)(B) of section 337 in the 
importation into the United States, the sale for importation, or the 
sale within the United States after importation of certain sleeping-
disordered breathing treatment systems and components thereof by reason 
of infringement of one or more of claims 23 and 24 of the '453 patent; 
claims 1-24 and 26-33 of the '551 patent; claims 1-31, 40-43, 52-59, 
61-67, 69-84, 86-120, 122-158, 160, 161, 164, 165, 167, 168, and 173 of 
the '691 patent; and claims 16-30 of the '860 patent, and whether an 
industry in the United States exists as required by subsection (a)(2) 
of section 337;
    (2) For the purpose of the investigation so instituted, the 
following are hereby named as parties upon which this notice of 
investigation shall be served:
    (a) The complainants are:

ResMed Corp., 9001 Spectrum Center Drive, San Diego, CA 92123
ResMed Inc., 9001 Spectrum Center Drive, San Diego, CA 92123
ResMed Ltd., 1 Elizabeth Macarthur Drive, Bella Vista NSW 2153, 
Australia

    (b) The respondents are the following entities alleged to be in 
violation of section 337, and are the parties upon which the complaint 
is to be served:

BMC Medical Co., Ltd., 5/F Main Building, No. 19 Gucheng Street West, 
Shijingshan, Beijing 100043, China
3B Medical, Inc., 21301 US Highway 27, Lake Wales, FL 33589
3B Products, L.L.C., 21301 US Highway 27, Lake Wales, FL 33589

    (3) For the investigation so instituted, the Chief Administrative 
Law Judge, U.S. International Trade Commission, shall designate the 
presiding Administrative Law Judge.
    The Office of Unfair Import Investigations will not participate as 
a party in this investigation.
    Responses to the complaint and the notice of investigation must be 
submitted by the named respondents in accordance with section 210.13 of 
the Commission's Rules of Practice and Procedure, 19 CFR 210.13. 
Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be 
considered by the Commission if received not later than 20 days after 
the date of service by the Commission of the complaint and the notice 
of investigation. Extensions of time for submitting responses to the 
complaint and the notice of investigation will not be granted unless 
good cause therefor is shown.
    Failure of a respondent to file a timely response to each 
allegation in the complaint and in this notice may be deemed to 
constitute a waiver of the right to appear and contest the allegations 
of the complaint and this notice, and to authorize the administrative 
law judge and the Commission, without further notice to the respondent, 
to find the facts to be as alleged in the complaint and this notice and 
to enter an initial determination and a final determination containing 
such findings, and may result in the issuance of an exclusion order or 
a cease and desist order or both directed against the respondent.

    By order of the Commission.
    Issued: May 12, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-11667 Filed 5-17-16; 8:45 am]
 BILLING CODE 7020-02-P

Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Notices 31255

United States after importation of On October 16, 2014, the Commission Commission moved to remand BMC’s
certain sleep-disordered breathing determined to review the final ID in appeal in light of intervening domestic
treatment systems and components part. 79 FR 63163–65 (Oct. 22, 2014). industry precedent in Lelo Inc. v.
thereof that infringe one or more of On review, the Commission determined International Trade Commisson, 789
claims 32–37, 53, 79, 80, and 88 of U.S. to affirm the ALJ’s finding of violation F.3d 879 (Fed. Cir. 2015). On March 29,
Patent No. 7,997,267 (‘‘the ’267 patent’’); of section 337. The Commission, 2016, the Court granted the motion
claims 1–7 of U.S. Patent No. 7,614,398 however, found the ’453 patent invalid dismiss ResMed’s appeal. On April 22,
(‘‘the ’398 patent’’); claim 1 of U.S. for anticipation. Having found a 2016, the Court granted the
Patent No. 7,938,116 (‘‘the ’116 patent’’); violation of section 337, the Commission’s remand motion, noting
claims 30, 37, and 38 of U.S. Patent No. Commission determined that the the Commission’s indication that it
7,341,060 (the ’060 patent); claims 1, 3, appropriate form of relief was (1) a would suspend its remedial orders as it
5, 11, 28, 30, 31, and 56 of U.S. Patent limited exclusion order prohibiting the conducts its remand proceedings.
No. 8,312,883 (‘‘the ’883 patent’’); unlicensed entry of sleep-disordered The Commission has determined to
claims 1, 3, 6, 7, 9, 29, 32, 35, 40, 42, breathing treatment systems and suspend the remedial orders issued in
45, 50, 51, 56, 59, 89, 92, 94, and 96 of components thereof that infringe one or this investigation pending the outcome
U.S. Patent No. 7,178,527 (the ’527 more of claims 1, 9, 32, 89, and 92 of of the remand.
patent); claims 19–24, 26, 29–36, and the ’527 patent; claims 19, 21, 29, 32, The authority for the Commission’s
39–41 of U.S. Patent No. 7,950,392 (the and 36 of the ’392 patent; claims 32, 33, determination is contained in section
’392 patent); and claims 13, 15, 16, 26– 34, and 53 of the ’267 patent; claims 30, 337 of the Tariff Act of 1930, as
28, 51, 52, and 55 of U.S. Patent No 37, and 38 of the ’060 patent; and claims amended (19 U.S.C. 1337), and in Part
7,926,487 (‘‘the ’487 patent’’). The 1, 3, 5, 11, 28, 30, 31, and 56 of the ’883 210 of the Commission’s Rules of
notice of investigation named the patent that are manufactured by, or on Practice and Procedure (19 CFR part
following respondents: BMC Medical behalf of, or are imported by or on 210).
Co., Ltd. of Beijing, China; 3B Medical, behalf of BMC Medical Co., Ltd., 3B
By order of the Commission.
Inc. of Lake Wales, Florida; and 3B Medical, Inc., or 3B Products L.L.C. or
Issued: May 12, 2016.
Products, L.L.C., of Lake Wales, Florida any of their affiliated companies,
(collectively ‘‘BMC’’). The Office of parents, subsidiaries, agents, or other Lisa R. Barton,
Unfair Import Investigations (‘‘OUII’’) related business entities, or their Secretary to the Commission.
participated in the investigation. successors or assigns, except for service [FR Doc. 2016–11638 Filed 5–17–16; 8:45 am]
On January 9, 2014, the and replacement parts for customers BILLING CODE 7020–02–P
Administrative Law Judge (‘‘ALJ’’) that purchased their covered products
issued an initial determination (‘‘ID’’) prior to the date the exclusion order
granting a motion by ResMed to amend becomes final; and (2) cease and desist INTERNATIONAL TRADE
the complaint and notice of orders prohibiting domestic respondents COMMISSION
investigation to substitute U.S. Patent BMC Medical Co., Ltd., 3B Medical, Inc. [Investigation No. 337–TA–997]
No. RE 44,453 (‘‘the ’453 patent’’) for the from conducting any of the following
’398 patent and to terminate the activities in the United States: Certain Sleep-Disordered Breathing
investigation as to the ’398 patent. See Importing, selling, marketing, Treatment Systems and Components
Order No. 7 (Jan. 9, 2014). The advertising, distributing, transferring Thereof; Institution of Investigation
Commission determined not to review (except for exportation), and soliciting
the ID. See Commission Notice of Non- U.S. agents or distributors for, sleep- AGENCY: U.S. International Trade
Review (Feb. 10, 2014); 79 FR 9000–01 disordered breathing treatment systems Commission.
(Feb. 14, 2014). and components thereof covered by ACTION: Notice.
On February 24, 2014, the ALJ issued claims 1, 9, 32, 89, and 92 of the ’527
an ID granting a motion by ResMed to patent; claims 19, 21, 29, 32, and 36 of SUMMARY: Notice is hereby given that a
withdraw its allegations with respect to the ’392 patent; claims 32, 33, 34, and complaint was filed with the U.S.
the ’116 patent. See Order No. 11 (Feb. 53 of the ’267 patent; claims 30, 37, and International Trade Commission on
24, 2014). The Commission determined 38 of the ’060 patent; and claims 1, 3, April 14, 2016, under section 337 of the
not to review the ID. See Commission 5, 11, 28, 30, 31, and 56 of the ’883 Tariff Act of 1930, as amended, 19
Notice of Non-Review (March 11, 2014). patent. U.S.C. 1337, on behalf of ResMed Corp.
On March 18, 2014, the ALJ granted a On February 18, 2015, ResMed filed a of San Diego, California; ResMed Inc. of
motion by ResMed to terminate the notice of appeal in the U.S. Court of San Diego, California; and ResMed Ltd.
investigation as to claims 26–28 of the Appeals for the Federal Circuit, seeking of Australia. A corrected complaint was
’487 Patent. See Order No. 20 (Mar 18, review of the Commission’s filed on April 18, 2016, and a
2012). The Commission determined not determination as to the ’453 patent supplement was filed on April 19, 2016.
to review the ID. See Commission (Appeal No. 2015–1360). On April 14, The corrected complaint alleges
Notice of Non-Review (Apr. 29, 2014). 2015, BMC filed a notice of appeal in violations of section 337 based upon the
On August 21, 2014, the ALJ issued the Federal Circuit, seeking review of importation into the United States, the
his final ID, finding a violation of the Commission’s domestic industry sale for importation, and the sale within
section 337 by BMC with respect to determination as well as the the United States after importation of
certain asserted claims of the ’392, ’267, Commission’s finding that prior art does certain sleeping-disordered breathing
’060, ’883, ’527, and ’453 patents. The not render the asserted claims of the treatment systems and components
sradovich on DSK3TPTVN1PROD with NOTICES

ALJ found no violation of section 337 ’267 patent invalid for obviousness thereof by reason of infringement of
with respect to the asserted claims of (Appeal No. 2015–1576). The Court certain claims of U.S. Patent No.
the ’487 patent. consolidated the two appeals on April RE44,453 (‘‘the ’453 patent’’); U.S.
On September 3, 2014, the parties 23, 2015. Patent No. 8,020,551 (‘‘the ’551 patent’’);
filed petitions for review of the ID. On On March 16, 2016, the parties jointly U.S. Patent No. 8,006,691 (‘‘the ’691
September 11, 2014, the parties filed moved to dismiss ResMed’s appeal as to patent’’); and U.S. Patent No. 9,072,860
responses to the petitions for review. the ’453 patent. On March 17, 2016, the (‘‘the ’860 patent’’). The complaint

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31256 Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Notices

further alleges that an industry in the States exists as required by subsection Issued: May 12, 2016.
United States exists as required by (a)(2) of section 337; Lisa R. Barton,
subsection (a)(2) of section 337. (2) For the purpose of the Secretary to the Commission.
The complainants request that the investigation so instituted, the following
[FR Doc. 2016–11667 Filed 5–17–16; 8:45 am]
Commission institute an investigation are hereby named as parties upon which
BILLING CODE 7020–02–P
and, after the investigation, issue a this notice of investigation shall be
limited exclusion order and cease and served:
desist orders. (a) The complainants are:
INTERNATIONAL TRADE
ResMed Corp., 9001 Spectrum Center
ADDRESSES: The complaint, except for COMMISSION
Drive, San Diego, CA 92123
any confidential information contained
ResMed Inc., 9001 Spectrum Center
therein, is available for inspection [Investigation No. 731–TA–282 (Fourth
Drive, San Diego, CA 92123
during official business hours (8:45 a.m. ResMed Ltd., 1 Elizabeth Macarthur Review)]
to 5:15 p.m.) in the Office of the Drive, Bella Vista NSW 2153,
Secretary, U.S. International Trade Australia Petroleum Wax Candles from China
Commission, 500 E Street SW., Room
112, Washington, DC 20436, telephone (b) The respondents are the following Determination
(202) 205–2000. Hearing impaired entities alleged to be in violation of
individuals are advised that information section 337, and are the parties upon On the basis of the record 1 developed
on this matter can be obtained by which the complaint is to be served: in the subject five-year review, the
contacting the Commission’s TDD BMC Medical Co., Ltd., 5/F Main United States International Trade
terminal on (202) 205–1810. Persons Building, No. 19 Gucheng Street West, Commission (‘‘Commission’’)
with mobility impairments who will Shijingshan, Beijing 100043, China determines, pursuant to the Tariff Act of
need special assistance in gaining access 3B Medical, Inc., 21301 US Highway 27, 1930, that revocation of the
to the Commission should contact the Lake Wales, FL 33589 antidumping duty order on petroleum
Office of the Secretary at (202) 205– 3B Products, L.L.C., 21301 US Highway wax candles from China would be likely
2000. General information concerning 27, Lake Wales, FL 33589 to lead to continuation or recurrence of
the Commission may also be obtained (3) For the investigation so instituted, material injury to an industry in the
by accessing its internet server at http:// the Chief Administrative Law Judge, United States within a reasonably
www.usitc.gov. The public record for U.S. International Trade Commission, foreseeable time.
this investigation may be viewed on the shall designate the presiding
Commission’s electronic docket (EDIS) Administrative Law Judge. Background
at http://edis.usitc.gov. The Office of Unfair Import
Investigations will not participate as a The Commission, pursuant to section
FOR FURTHER INFORMATION CONTACT: The 751(c) of the Tariff Act of 1930 (19
party in this investigation.
Office of Unfair Import Investigations, Responses to the complaint and the U.S.C. 1675(c)), instituted this review
U.S. International Trade Commission, notice of investigation must be on December 1, 2015 (80 FR 75130) and
telephone (202) 205–2560. submitted by the named respondents in determined on March 7, 2016 that it
SUPPLEMENTARY INFORMATION: accordance with section 210.13 of the would conduct an expedited review (81
Authority: The authority for Commission’s Rules of Practice and FR 15122, March 21, 2016).
institution of this investigation is Procedure, 19 CFR 210.13. Pursuant to The Commission made this
contained in section 337 of the Tariff 19 CFR 201.16(e) and 210.13(a), such determination pursuant to section
Act of 1930, as amended, and in section responses will be considered by the 751(c) of the Tariff Act of 1930 (19
210.10 of the Commission’s Rules of Commission if received not later than 20 U.S.C. 1675(c)). It completed and filed
Practice and Procedure, 19 CFR 210.10 days after the date of service by the
its determination in this review on May
(2015). Commission of the complaint and the
12, 2016. The views of the Commission
Scope of Investigation: Having notice of investigation. Extensions of
are contained in USITC Publication
considered the complaint, the U.S. time for submitting responses to the
complaint and the notice of 4610 (May 2016), entitled Petroleum
International Trade Commission, on
investigation will not be granted unless Wax Candles from China: Investigation
May 11, 2016, ordered that—
good cause therefor is shown. No. 731–TA–282 (Fourth Review).
(1) Pursuant to subsection (b) of
section 337 of the Tariff Act of 1930, as Failure of a respondent to file a timely By order of the Commission.
amended, an investigation be instituted response to each allegation in the Issued: May 12, 2016.
to determine whether there is a complaint and in this notice may be
Lisa R. Barton,
violation of subsection (a)(1)(B) of deemed to constitute a waiver of the
right to appear and contest the Secretary to the Commission.
section 337 in the importation into the
allegations of the complaint and this [FR Doc. 2016–11637 Filed 5–17–16; 8:45 am]
United States, the sale for importation,
or the sale within the United States after notice, and to authorize the BILLING CODE 7020–02–P

importation of certain sleeping- administrative law judge and the
disordered breathing treatment systems Commission, without further notice to
and components thereof by reason of the respondent, to find the facts to be as
infringement of one or more of claims alleged in the complaint and this notice
sradovich on DSK3TPTVN1PROD with NOTICES

23 and 24 of the ’453 patent; claims 1– and to enter an initial determination
24 and 26–33 of the ’551 patent; claims and a final determination containing
1–31, 40–43, 52–59, 61–67, 69–84, 86– such findings, and may result in the
120, 122–158, 160, 161, 164, 165, 167, issuance of an exclusion order or a cease
168, and 173 of the ’691 patent; and and desist order or both directed against 1 The record is defined in sec. 207.2(f) of the

claims 16–30 of the ’860 patent, and the respondent. Commission’s Rules of Practice and Procedure (19
whether an industry in the United By order of the Commission. CFR 207.2(f)).

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Document Created: 2016-05-18 00:06:56
Document Modified: 2016-05-18 00:06:56

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		The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
FR Citation		81 FR 31255