Certain Excimer Laser Systems for Vision Correction Surgery and Components Thereof and Methods for Performing Such Surgery; Schedule for the Filing of Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Briefing Questions

AGENCY:

International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given of the schedule for filing written submissions on the issues under review in the above-captioned investigation in connection with the Commission's review-in-part of the final initial determination (“ID”) issued on December 6, 1999, by the presiding administrative law judge (“ALJ”) in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT:

Timothy P. Monaghan, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW, Washington, DC 20436, telephone 202-205-3152. General information concerning the Commission may also be obtained by accessing its Internet server (http://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:

This investigation was instituted on March 1, 1999, based on a complaint by VISX, Inc. (“VISX”), 64 FR 10016-17. The respondents named in the investigation are Nidek Co., Ltd., Nidek Inc., and Nidek Technologies, Inc. Complainant alleges importation and sale of certain excimer laser systems for vision correction surgery that infringe claims of U.S. Letters Patent Nos. 4,718,418 (“the '418 patent”) and 5,711,762 (“the '762 patent”). An evidentiary hearing was held from August 18, 1999, to August 27, 1999.

On December 6, 1999, the presiding administrative law judge (“ALJ”) issued her final ID finding that complainant VISX failed to establish the required domestic industry, that there was no infringement of any claim at issue, and that the '762 patent was invalid and unenforceable.

On February 2, 2000, the Commission determined not to review the ID's findings with respect to the '418 patent and determined to review all the ID's findings with respect to the '762 patent. The Commission is particularly interested in receiving briefing on the following points:

(1) The construction of the claimed laser delivery system means element of claim 1 of the '762 patent.

(2) The construction of claim 10 of the '762 patent and the ramifications of that construction under the doctrine of claim differentiation as it relates to claims 1 and 10.

(3) A discussion, including a detailed engineering description, of how VISX's STAR, STAR S2, 20/20A, and 20/20B systems function, and whether those systems practice claims 1, 10, or 12 of the '762 patent, both as those claims are construed by the ALJ and if claim 1 is construed as not requiring a proximity mask.

(4) Whether the accused Nidek device infringes claim 1 of the '762 patent literally or under the doctrine of equivalents if claim 1 is construed as not requiring a proximity mask.

In connection with the final disposition of this investigation, the Commission may issue (1) an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) cease and desist orders that could result in respondents being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see In the Matter of Certain Devices for Connecting Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December 1994) (Commission Opinion).

If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.

If the Commission orders some form of remedy, the President has 60 days to approve or disapprove the Commission's action. During this period, the subject articles would be entitled to enter the United States under a bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed.

Written Submissions

The parties to the investigation, interested government agencies, and any other interested parties are encouraged to file written submissions on the issues under review, and on remedy, the public interest, and bonding. Such submissions should address the January 31, 2000, recommended determination by the ALJ on remedy and bonding. Complainant and the Commission investigative attorney are also requested to submit proposed remedial orders for the Commission's consideration. The written submissions and proposed remedial orders must be filed no later than close of business on February 14, 2000. Reply submissions must be filed no later than the close of business on February 18, 2000. No further submissions on these issues will be permitted unless otherwise ordered by the Commission.

Persons filing written submissions must file with the Office of the Secretary the original document and 14 true copies thereof on or before the deadlines stated above. Any person desiring to submit a document (or portion thereof) to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See § 201.6 of the Commission's rules of practice and procedure, 19 CFR § 201.6. Documents for which confidential treatment by the Commission is sought will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary.

This action is taken under the authority of section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, and section 210.45 of the Commission's rules of practice and procedure, 19 CFR § 210.45.

Copies of the public version of the subject ID, and all other nonconfidential 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.