22
Oct
By John Presper

On October 14, 2021, the Commission issued a notice of its final determination finding a violation of section 337 in Certain Laparoscopic Surgical Staplers, Reload Cartridges, and Components Thereof (Inv. No. 337-TA-1167).

By way of background, this investigation was instituted based on complaint filed by Ethicon LLC; Ethicon Endo-Surgery, Inc.; and Ethicon US, LLC (collectively, “Ethicon”) alleging violations of section 337 by Respondents Intuitive Surgical, Inc.; Intuitive Surgical Operations, Inc.; Intuitive Surgical Holdings, LLC; and Intuitive Surgical S. De R.L. De C.V. (collectively, “Intuitive”) through the importation and/or sale of certain laparoscopic surgical staplers, reload cartridges, and components thereof that infringed one or more claims of U.S. Patent Nos. 9,844,379 (“the ’379 patent”); 9,844,369 (“the ’369 patent”); 7,490,749; 8,479,969; and 9,113,874.  On June 29, 2021, Chief ALJ Charles E. Bullock issued an initial determination (“ID”) finding a violation of section 337 by reason of infringement of the ’369 and ’379 patents.  See our July 9, 2021 post for more details regarding the ID.

According to the notice, the Commission determined that Intuitive violated section 337 by importing/selling certain laparoscopic surgical staplers, reload cartridges, and components thereof that infringe claims 2 and 3 of the ’379 patent.  The Commission also determined to affirm, reverse, and take no position on certain portions of the ID, as set forth in its opinion.  The Commission therefore issued a limited exclusion order and cease-and-desist order against Intuitive, and set a bond of zero percent.

Finally, the Commission determined to suspend enforcement of its remedial orders, including the bond provision, “pending final resolution of a Final Written Decision issued by the PTAB on March 26, 2021, finding all claims of the ’379 patent to be unpatentable.”

We will post the public version of the Commission’s opinion when it becomes available.
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