By Eric Schweibenz
On January 13, 2017, the U.S. International Trade Commission (“Commission”) issued a notice and order in Certain Radiotherapy Systems and Treatment Planning Software, and Components Thereof (Inv. No. 337-TA-968).

By way of background, this investigation is based on a September 25, 2015 complaint filed by Varian Medical Systems, Inc. and Varian Medical Systems International AG (collectively, “Varian”) alleging violation of Section 337 by Respondents Elekta AB, Elekta Ltd., Elekta GmbH, Elekta Inc., IMPAC Medical Systems, Inc., Elekta Instrument (Shanghai) Ltd., and Elekta Beijing Medical Systems Co. Ltd. (collectively, “Elekta”) in the importation into the U.S. and sale of certain radiotherapy systems and treatment planning software and components thereof that infringe one or more 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’).  See our September 30, 2015 and November 3, 2015 posts for more details on the complaint and Notice of Investigation, respectively. On November 28, 2016, ALJ David P. Shaw issued the public version of his Initial Determination (the “Final ID”) finding a violation of Section 337. See our December 27, 2016 post for more details.

According to the January 13, 2017 notice:
[T]he 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 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.