In the Matter of Certain Excimer Laser Systems for Vision Correction Surgery and Components Thereof and Methods for Performing Such Surgery; Notice of Final Determination

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has found no violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-referenced investigation.

FOR FURTHER INFORMATION CONTACT:

Timothy P. Monaghan, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C. 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 (herein collectively “Nidek”). Complainant alleges importation and sale of certain excimer laser systems for vision correction surgery that infringe claims of U.S. Letters Patents 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 initial determination (“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.

VISX, Nidek, and the Commission investigative attorneys filed petitions for review of the ID on December 17, 1999, and on December 27, 1999, all parties responded to each other's petitions for review of the ID. 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.

Having examined the record in this investigation, including the briefs and the responses thereto, the Commission determined that there is no violation of section 337. More specifically, the Commission found no infringement of any claim at issue of the ‘762 patent and no domestic industry with respect to the ‘762 patent. The Commission determined to take no position on the issues of the validity and enforceability of the ‘762 patent.

This action is taken under the authority of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, and sections 210.45-210.51 of the Commission's Rules of Practice and Procedure, 19 CFR 210.45-210.51.

Copies of the public versions of the Commission order and the Commission opinion in support thereof 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 S.W., Washington, D.C. 20436, telephone 202-205-2000.