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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Notices Commissions electronic docket EDIS
at https edis.usitc.gov. For help accessing EDIS, please email EDIS3Help@usitc.gov. 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 Commissions TDD terminal on 202
2051810.
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, OH; and Ethicon US, LLC of Cincinnati, OH 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 laparoscopic surgical staplers, reload cartridges, and components thereof by reason of infringement of one or more claims of U.S. Patent Nos.
9,844,379 the 379 patent ; 9,844,369
the 369 patent; 7,490,749 the 749
patent; 8,479,969 the 969 patent;
and 9,113,874 the 874 patent. 84 FR
at 32220. The Commissions 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 is not participating in this investigation. Id.
On October 23, 2020, the ALJ granted Ethicons motion for leave to amend the complaint, case caption, and Notice of Investigation to reinstate the original plain English statement of the category of accused products, as well as the original case caption, and to reincorporate Intuitives laparoscopic surgical staplers and components thereof as articles to be excluded. Order No. 14, unreviewed by Commn Notice Nov. 21, 2019. As initially instituted, the investigation covered reload cartridges for those staplers, but not the actual staplers themselves. See id.
On October 29, 2019, the ALJ
conducted a Markman hearing.
Thereafter, on January 7, 2020, the ALJ
issued Order No. 15, which construed various terms in the asserted patents.

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On March 5, 2020, the ALJ granted Ethicons motion to terminate claim 1 of the 379 patent and all claims of the 749
patent from the investigation. See Order No. 21, unreviewed by Commn Notice Mar. 25, 2020.
On April 21, 2020, Ethicon moved for leave to file a second amended complaint to include the Certificate of Correction for the 379 patent. The ALJ
granted Ethicons motion on May 6, 2020, and Ethicon filed its second amended complaint on May 7, 2020. See Order No. 36; Doc. ID 709878.
On June 8, 2021, the ALJ issued the subject ID on violation, which found a violation of section 337 based on infringement of the 369 and 379
patents by Intuitive. The ID found no violation based on the 969 and 874
patents. Also, on June 8, 2021, the ALJ
issued his recommended determination on remedy and bonding. The ALJ
recommended, upon a finding of violation, that the Commission issue a limited exclusion order, issue a cease and desist order, and impose a bond in the amount of zero percent of the entered value of any covered products imported during the period of Presidential review.
On June 21, 2021, Ethicon and Intuitive submitted petitions seeking review of the subject ID. On June 29, 2021, Ethicon and Intuitive submitted responses to the others petitions.
Having examined the record of this investigation, including the ID, the petitions for review, and the responses thereto, the Commission has determined to review the ID with respect to 1 the IDs findings on claim construction, infringement, anticipation, obviousness, and enforceability for the 969 patent;
and 2 the IDs findings on claim construction, infringement, and obviousness for the 369 patent. The Commission has determined not to review the remainder of the ID.
In connection with its review, Commission requests responses to the following questions. The parties are requested to brief their positions with reference to the applicable law and the existing evidentiary record.
1. Claim 24 of the 969 patent includes the terms elongated shaft assembly and transmission assembly. Concerning these terms, identify where in the record, if anywhere:
a. The parties proposed constructions for these terms;
b. The parties argued in support of any constructions proposed; and c. The ALJ construed these terms.
2. Concerning the terms elongated shaft assembly and transmission assembly, indicate whether these terms
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should be construed according to their plain and ordinary meaning. If these terms should be construed according to their plain and ordinary meaning, what is the plain and ordinary meaning of each term? If these terms should be construed otherwise, identify the correct mode of construction and the corresponding construction for each term. Identify with specificity the evidence of record that supports your contentions with particular emphasis on evidence intrinsic to the 969 patent.
a. Explain whether the SureForm products meet these limitations under the parties proposed constructions.
3. Does the evidence of record support the conclusion that persons of ordinary skill in the art with respect to the 969
patent were responsible for the decision to create a joint venture between PMI
and Intuitive for the purpose of modifying the PMI i60 stapler to work with the da Vinci Si surgical system?
Provide any citations to the record that support your contention.
4. Does the record indicate whether the Si EndoWrist 45 stapler is the subject of one or more patents? Identify any such patents.
5. Claim 22 of the 369 patent includes the term elongate channel.
Concerning that term, identify where in the record, if anywhere:
a. The parties proposed constructions for that term;
b. The parties argued in support of any constructions proposed; and c. The ALJ construed that term.
6. Concerning the term elongate channel, indicate whether these terms should be construed according to its plain and ordinary meaning? If this term should be construed according to its plain and ordinary meaning, what is the plain and ordinary meaning of the term?
If the term should be construed otherwise, identify the correct mode of construction and the corresponding construction. Identify with specificity the evidence of record that supports your contentions with particular emphasis on evidence intrinsic to the 369 patent.
a. Explain whether the SureForm products meet this limitation under the parties proposed constructions.
7. Claim 22 of the 369 patent includes the limitation: means for guiding the at least one lower foot on the firing element out of the proximal channel opening into the internal passage upon initial application of a firing motion to the firing element. If the Commission determines that the corresponding structure for that limitation is limited to flat, as opposed to curved, chamfers and slopes, would
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