82 FR 7856 - Certain Radiotherapy Systems and Treatment Planning Software, and Components Thereof; Commission Determination To Review a Final Initial Determination in Part and, on Review, To Affirm in Part, Vacate in Part and Remand Some Issues to the Administrative Law Judge, and Maintain Certain Issues Under Review
INTERNATIONAL TRADE COMMISSION Federal Register Volume 82, Issue 13 (January 23, 2017)
Federal Register Volume 82, Issue 13 (January 23, 2017)
| Page Range | 7856-7857 | |
| FR Document | 2017-01315 |
[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)] [Notices] [Pages 7856-7857] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-01315] [[Page 7856]] ======================================================================= ----------------------------------------------------------------------- INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-968] Certain Radiotherapy Systems and Treatment Planning Software, and Components Thereof; Commission Determination To Review a Final Initial Determination in Part and, on Review, To Affirm in Part, Vacate in Part and Remand Some Issues to the Administrative Law Judge, and Maintain Certain Issues Under Review AGENCY: U.S. International Trade Commission. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: Notice is hereby given that the U.S. International Trade Commission (``the Commission'') has determined to review in part the final initial determination (the ``Final ID'') issued by the presiding administrative law judge (``ALJ'') on October 27, 2016. As to one issue under review, the Commission has determined to affirm. As to other issues, the Commission has determined to vacate and remand the investigation to the ALJ for additional findings. Other issues remain under review. FOR FURTHER INFORMATION CONTACT: Ron Traud, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3427. 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 (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 this investigation on October 30, 2015, based on a complaint filed by Varian Medical Systems, Inc. of Palo Alto, California; and Varian Medical Systems International AG of ZG, Switzerland (collectively, ``Varian''). 80 FR 66934 (Oct. 30, 2015). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain radiotherapy systems and treatment planning software, and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 7,945,021 (``the '021 patent''); 8,116,430 (``the '430 patent''); 8,867,703 (``the '703 patent''); 7,880,154 (``the '154 patent''); 7,906,770 (``the '770 patent''); and 8,696,538 (``the '538 patent''). Id. The notice of investigation named as respondents Elekta AB of Stockholm, Sweden; Elekta Ltd. of Crawley, United Kingdom; Elekta GmbH of Hamburg, Germany; Elekta Inc. of Atlanta, Georgia; IMPAC Medical Systems, Inc. of Sunnyvale, California; Elekta Instrument (Shanghai) Limited of Shanghai, China; and Elekta Beijing Medical Systems Co. Ltd. of Beijing, China (collectively, ``Elekta''). The Office of Unfair Import Investigations (``OUII'') also was named as a party to the investigation. Id. Prior to the evidentiary hearing, Varian withdrew its allegations as to certain patent claims and also added additional claims. See Notice of Commission Determination Not to Review an Initial Determination Granting a Motion to Amend the Complaint and Notice of Investigation (Apr. 4, 2016). Varian proceeded at the evidentiary hearing on the following patents and claims: Claims 1, 4, 9, and 15 of the '021 patent; claims 6 and 18 of the '430 patent; claim 1 of the '703 patent; claims 23 and 26 of the '154 patent; claims 61, 67, and 68 of the '770 patent; and claims 26 and 41 of the '538 patent. On October 27, 2016, the ALJ issued his Final ID, which finds a violation of section 337 by Elekta as to claims 23 and 26 of the '154 patent; claims 26 and 41 of the '538 patent; and claim 67 of the '770 patent. The Final ID found no violation of section 337 in connection with claim 61 of the '770 patent; claims 1, 4, 9, and 15 of the '021 patent; claims 6 and 18 of the '430 patent; and claim 1 of the '703 patent. The ALJ recommended that the Commission issue a limited exclusion orders directed to Elekta's accused products that infringe the claims for which a violation was found. The ALJ further recommended that cease and desist orders issue. Having examined the record in this investigation, including the Final ID, the petitions for review, and the responses thereto, the Commission has determined to review the Final ID in part and, on review, to take certain actions. In particular, the Commission has determined as follows: (1) To review the Final ID's conclusions that the claims asserted for infringement and/or domestic industry of the '154 patent, the '770 patent, and the '538 patent are not invalid as obvious due to Elekta's witness's failure to analyze Varian's evidence of secondary considerations of nonobviousness. On review, the Commission has determined to vacate this determination and to remand the investigation to the ALJ with respect to this issue. The ALJ shall analyze Varian's evidence of secondary considerations and (1) make findings as to that evidence, including whether Varian has demonstrated that there is a nexus between the claims and the evidence of secondary considerations, and any other finding necessary to determine the effect of that evidence on whether those claims are obvious; (2) make findings as to whether and to what extent that evidence of secondary considerations supports Varian's arguments that Elekta has not shown that the asserted claims are obvious; and (3) reconsider the ultimate conclusion of whether the claims are obvious in light of the foregoing. (2) To review the Final ID's determination regarding the obviousness of the asserted claims of the '021 patent, the '430 patent, and the '703 patent. This issue remains under review. (3) To review the claim construction in the Final ID of the claim term ``communications network,'' as found in the asserted claims of the '021 and '430 patents. See, e.g., Final ID at 46-54. This issue remains under review. (4) To review the Final ID's conclusions regarding the anticipation of claim 18 of the '430 patent by the Jaffray MICCAI 2001 reference, and on review, the Commission affirms that this claim is not anticipated and clarifies that the indication otherwise on page 152 of the Final ID is a typographical error. (5) To review the Final ID's discussion, interpretation, and application of Certain Electronic Devices with Image Processing Systems, Components Thereof, and Associated Software, 337-TA-724, Comm'n Op. (Nov. 21, 2011), in analyzing the infringement of claim 18 of the '430 patent and the asserted claims of the '154, '538, and '770 patents, and to review the Final ID's conclusions regarding infringement of the aforementioned claims. See, e.g., Final ID at 133- 39, 253-57, 327, 394. This issue remains under review. The Commission has determined to not review the remainder of the Final [[Page 7857]] ID. The Commission does not seek further briefing at this time. In light of the remand, the ALJ shall set a new target date within thirty days of the date of this notice consistent with the Remand Order. The current target date for this investigation is March 16, 2017. Any briefing on reviewed and remanded issues, and on remedy, bonding, and the public interest will follow Commission consideration of the remand ID. 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: January 13, 2017. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2017-01315 Filed 1-19-17; 8:45 am] BILLING CODE 7020-02-P
![7856 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices
INTERNATIONAL TRADE 1337, in the importation into the United (1) To review the Final ID’s
COMMISSION States, the sale for importation, or the conclusions that the claims asserted for
sale within the United States after infringement and/or domestic industry
[Investigation No. 337–TA–968]
importation of certain radiotherapy of the ’154 patent, the ’770 patent, and
Certain Radiotherapy Systems and systems and treatment planning the ’538 patent are not invalid as
Treatment Planning Software, and software, and components thereof by obvious due to Elekta’s witness’s failure
Components Thereof; Commission reason of infringement of certain claims to analyze Varian’s evidence of
Determination To Review a Final Initial of U.S. Patent Nos. 7,945,021 (‘‘the ’021 secondary considerations of
Determination in Part and, on Review, patent’’); 8,116,430 (‘‘the ’430 patent’’); nonobviousness. On review, the
To Affirm in Part, Vacate in Part and 8,867,703 (‘‘the ’703 patent’’); 7,880,154 Commission has determined to vacate
Remand Some Issues to the (‘‘the ’154 patent’’); 7,906,770 (‘‘the ’770 this determination and to remand the
patent’’); and 8,696,538 (‘‘the ’538 investigation to the ALJ with respect to
Administrative Law Judge, and
patent’’). Id. The notice of investigation this issue. The ALJ shall analyze
Maintain Certain Issues Under Review
named as respondents Elekta AB of Varian’s evidence of secondary
AGENCY: U.S. International Trade Stockholm, Sweden; Elekta Ltd. of considerations and (1) make findings as
Commission. Crawley, United Kingdom; Elekta GmbH to that evidence, including whether
ACTION: Notice. of Hamburg, Germany; Elekta Inc. of Varian has demonstrated that there is a
Atlanta, Georgia; IMPAC Medical nexus between the claims and the
SUMMARY: Notice is hereby given that Systems, Inc. of Sunnyvale, California; evidence of secondary considerations,
the U.S. International Trade Elekta Instrument (Shanghai) Limited of and any other finding necessary to
Commission (‘‘the Commission’’) has Shanghai, China; and Elekta Beijing determine the effect of that evidence on
determined to review in part the final Medical Systems Co. Ltd. of Beijing, whether those claims are obvious; (2)
initial determination (the ‘‘Final ID’’) China (collectively, ‘‘Elekta’’). The make findings as to whether and to what
issued by the presiding administrative Office of Unfair Import Investigations extent that evidence of secondary
law judge (‘‘ALJ’’) on October 27, 2016. (‘‘OUII’’) also was named as a party to considerations supports Varian’s
As to one issue under review, the the investigation. Id. arguments that Elekta has not shown
Commission has determined to affirm. Prior to the evidentiary hearing, that the asserted claims are obvious; and
As to other issues, the Commission has Varian withdrew its allegations as to (3) reconsider the ultimate conclusion of
determined to vacate and remand the certain patent claims and also added whether the claims are obvious in light
investigation to the ALJ for additional additional claims. See Notice of of the foregoing.
findings. Other issues remain under Commission Determination Not to (2) To review the Final ID’s
review. Review an Initial Determination determination regarding the
FOR FURTHER INFORMATION CONTACT: Ron Granting a Motion to Amend the obviousness of the asserted claims of the
Complaint and Notice of Investigation ’021 patent, the ’430 patent, and the
Traud, Office of the General Counsel,
(Apr. 4, 2016). Varian proceeded at the ’703 patent. This issue remains under
U.S. International Trade Commission,
evidentiary hearing on the following
500 E Street SW., Washington, DC review.
patents and claims: Claims 1, 4, 9, and
20436, telephone (202) 205–3427. (3) To review the claim construction
15 of the ’021 patent; claims 6 and 18
Copies of non-confidential documents in the Final ID of the claim term
of the ’430 patent; claim 1 of the ’703
filed in connection with this ‘‘communications network,’’ as found in
patent; claims 23 and 26 of the ’154
investigation are or will be available for the asserted claims of the ’021 and ’430
patent; claims 61, 67, and 68 of the ’770
inspection during official business patents. See, e.g., Final ID at 46–54. This
patent; and claims 26 and 41 of the ’538
hours (8:45 a.m. to 5:15 p.m.) in the issue remains under review.
patent.
Office of the Secretary, U.S. On October 27, 2016, the ALJ issued (4) To review the Final ID’s
International Trade Commission, 500 E his Final ID, which finds a violation of conclusions regarding the anticipation
Street SW., Washington, DC 20436, section 337 by Elekta as to claims 23 of claim 18 of the ’430 patent by the
telephone 202–205–2000. General and 26 of the ’154 patent; claims 26 and Jaffray MICCAI 2001 reference, and on
information concerning the Commission 41 of the ’538 patent; and claim 67 of review, the Commission affirms that this
may also be obtained by accessing its the ’770 patent. The Final ID found no claim is not anticipated and clarifies
Internet server (https://www.usitc.gov). violation of section 337 in connection that the indication otherwise on page
The public record for this investigation with claim 61 of the ’770 patent; claims 152 of the Final ID is a typographical
may be viewed on the Commission’s 1, 4, 9, and 15 of the ’021 patent; claims error.
electronic docket (EDIS) at https:// 6 and 18 of the ’430 patent; and claim (5) To review the Final ID’s
edis.usitc.gov. Hearing-impaired 1 of the ’703 patent. The ALJ discussion, interpretation, and
persons are advised that information on recommended that the Commission application of Certain Electronic
this matter can be obtained by issue a limited exclusion orders directed Devices with Image Processing Systems,
contacting the Commission’s TDD to Elekta’s accused products that Components Thereof, and Associated
terminal on 202–205–1810. infringe the claims for which a violation Software, 337–TA–724, Comm’n Op.
SUPPLEMENTARY INFORMATION: The was found. The ALJ further (Nov. 21, 2011), in analyzing the
Commission instituted this investigation recommended that cease and desist infringement of claim 18 of the ’430
on October 30, 2015, based on a orders issue. patent and the asserted claims of the
complaint filed by Varian Medical Having examined the record in this ’154, ’538, and ’770 patents, and to
mstockstill on DSK3G9T082PROD with NOTICES
Systems, Inc. of Palo Alto, California; investigation, including the Final ID, the review the Final ID’s conclusions
and Varian Medical Systems petitions for review, and the responses regarding infringement of the
International AG of ZG, Switzerland thereto, the Commission has determined aforementioned claims. See, e.g., Final
(collectively, ‘‘Varian’’). 80 FR 66934 to review the Final ID in part and, on ID at 133–39, 253–57, 327, 394. This
(Oct. 30, 2015). The complaint alleges review, to take certain actions. In issue remains under review.
violations of section 337 of the Tariff particular, the Commission has The Commission has determined to
Act of 1930, as amended, 19 U.S.C. determined as follows: not review the remainder of the Final
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![Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices 7857
ID. The Commission does not seek providing advice and information 1819 or margaret.olaughlin@usitc.gov).
further briefing at this time. relating to the possible designation of Hearing-impaired individuals may
In light of the remand, the ALJ shall additional articles, removal of articles, obtain information on this matter by
set a new target date within thirty days and waiver of competitive need contacting the Commission’s TDD
of the date of this notice consistent with limitations. terminal at 202–205–1810. General
the Remand Order. The current target information concerning the Commission
DATES:
date for this investigation is March 16, February 3, 2017: Deadline for filing may also be obtained by accessing its
2017. requests to appear at the public hearing. Web site (http://www.usitc.gov). Persons
Any briefing on reviewed and with mobility impairments who will
February 8, 2017: Deadline for filing
remanded issues, and on remedy, need special assistance in gaining access
pre-hearing briefs and statements.
bonding, and the public interest will February 21, 2017: Public hearing. to the Commission should contact the
follow Commission consideration of the February 27, 2017: Deadline for filing Office of the Secretary at 202–205–2000.
remand ID. post-hearing briefs and statements.
The authority for the Commission’s Background: In his letter, the USTR
March 3, 2017: Deadline for filing all
determination is contained in section requested the advice and information
other written submissions.
337 of the Tariff Act of 1930, as described below.
May 5, 2017: Transmittal of
amended (19 U.S.C. 1337), and in part Commission report to the USTR. (1) Advice concerning the probable
210 of the Commission’s Rules of economic effect of elimination of U.S.
ADDRESSES: All Commission offices,
Practice and Procedure (19 CFR part import duties on certain articles from all
210). including the Commission’s hearing
rooms, are located in the United States beneficiary developing countries under
By order of the Commission. International Trade Commission the GSP program. In accordance with
Issued: January 13, 2017. sections 503(a)(1)(A), 503(e), and 131(a)
Building, 500 E Street SW., Washington,
Lisa R. Barton, DC. All written submissions should be of the Trade Act of 1974, as amended
Secretary to the Commission. addressed to the Secretary, United (‘‘the 1974 Act’’) (19 U.S.C.
[FR Doc. 2017–01315 Filed 1–19–17; 8:45 am] States International Trade Commission, 2463(a)(1)(A), 2463(e), and 2151(a)), and
BILLING CODE 7020–02–P 500 E Street SW., Washington, DC pursuant to the authority of the
20436. The public record for this President delegated to the USTR by
investigation may be viewed on the sections 4(c) and 8(c) and (d) of
INTERNATIONAL TRADE Commission’s electronic docket (EDIS) Executive Order 11846 of March 31,
COMMISSION at https://edis.usitc.gov. 1975, as amended, and pursuant to
[Investigation No. 332–560] FOR FURTHER INFORMATION CONTACT: section 332(g) of the Tariff Act of 1930
Information specific to this investigation (19 U.S.C. 1332(g)), the USTR notified
Generalized System of Preferences: may be obtained from Renee Berry, the Commission that the articles
Possible Modifications, 2016 Review Project Leader, Office of Industries identified in Table A of the Annex to
AGENCY: United States International (202–205–3498 or renee.berry@ the USTR request letter are being
Trade Commission. usitc.gov) or Sabina Neumann, Deputy considered for designation as eligible
Project Leader, Office of Industries articles for purposes of the GSP
ACTION: Notice of institution of
(202–205–3000 or sabina.neumann@ program. The USTR requested that the
investigation and scheduling of public
usitc.gov), or Marin Weaver, Technical Commission provide its advice as to the
hearing.
Advisor, Office of Industries (202–205– probable economic effect on total U.S.
SUMMARY: Following receipt of a request 3461 or marin.weaver@usitc.gov). For imports, U.S. industries producing like
on January 5, 2017, from the United information on the legal aspects of this or directly competitive articles, and on
States Trade Representative (USTR), the investigation, contact William Gearhart U.S. consumers of the elimination of
U.S. International Trade Commission of the Commission’s Office of the U.S. import duties on the articles
(Commission) instituted investigation General Counsel (202–205–3091 or identified in Table A of the Annex to
No. 332–560, Generalized System of william.gearhart@usitc.gov). The media the USTR request letter for all
Preferences: Possible Modifications, should contact Margaret O’Laughlin, beneficiary developing countries under
2016 Review, for the purpose of Office of External Relations (202–205– the GSP program (see Table A below).
TABLE A—POSSIBLE ADDITIONS TO THE LIST OF PRODUCTS ELIGIBLE FOR THE GSP ELIGIBLE PRODUCTS
HTS subheading Brief description Countries
1104.19.90 ................. Rolled or flaked grains of cereals, other than of barley or oats ................................... Beneficiary Developing Countries.
2008.20.00 ................. Pineapples, otherwise prepared or preserved, nesoi ................................................... Beneficiary Developing Countries.
2915.90.18 ................. Saturated acyclic monocarboxylic acids, nesoi ............................................................ Beneficiary Developing Countries.
3809.93.50 ................. Finishing agents, dye carriers and other preparations used in leather and like indus- Beneficiary Developing Countries.
tries, <5% by weight aromatic (mod.) substance(s).
3912.20.00 ................. Cellulose nitrates (including collodions), in primary forms ........................................... Beneficiary Developing Countries.
mstockstill on DSK3G9T082PROD with NOTICES
(2) Advice concerning the probable under the GSP program from all provide its advice as to the probable
economic effect of removal of certain countries. Under authority delegated by economic effect of the removal from
articles from specified countries from the President, pursuant to section 332(g) eligibility for duty-free treatment under
eligibility for duty-free treatment. The of the Tariff Act of 1930, with respect the GSP program for this article from all
USTR notified the Commission that one to the article listed in Table B of the countries on total U.S. imports, U.S.
article is being considered for removal Annex to the USTR request letter, the industries producing like or directly
from eligibility for duty free treatment USTR requested that the Commission
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Document Created: 2017-01-20 01:29:43
Document Modified: 2017-01-20 01:29:43
| 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 | Ron Traud, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3427. 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 (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. | |
| FR Citation | 82 FR 7856 |
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