`Washington, DC
`_
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`I In the Matter of
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`CERTAIN ELECTROCHEMICAL
`GLUCOSE MONITORING SYSTEMS
`AND COMPONENTS THEREOF
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`Investigation N0. 337-TA-1075
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`i
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`NOTICE OF COMMISSION DETERMINATION TO REVIEW
`AN INITIAL DETERNIINATION GRANTING A MOTION FOR SUMMARY
`DETERMINATION OF NON-INFRINGEMENT OF TI-IEASSERTED PATENTS AND
`THE UNDERLYING ORDERS
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`AGENCY:
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`U.S. Intemational Trade Commission.
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`ACTION:
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`Notice.
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`SUMMARY: Notice is hereby given that the U.S. -International Trade Commission has
`determined to review an initial determination (Order No. 33), granting a motion for summary
`determination of non-infringement of the asserted patents, and the underlying orders.
`
`FOR FURTHER INFORMATION CONTACT: Lucy Grace D. Noyola, Offiee of the
`General Counsel, U.S. Intemational Trade Commission, 500 E Street, SW, Washington, DC
`20436, telephone 202-205-3438. Copies of non-confidential 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 Offiee of the Secretary, U.S. International Trade Commission, 500 E Street,
`SW, Washington, DC 20436, telephone 202-205-2000. General infonnation concerning the
`Commission may also be obtained by accessing its Internet server (https://www.usitc.gov). The
`public record for this investigation may be viewed on the Conn"nission’selectronic docket
`(EDIS) at https://edis.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.
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`SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on
`October 25, 2017, based on a complaint filed on September 18, 2017, on behalf of Dexcom, Inc.
`of San Diego, California (“Dexcom”). 82 FR 49420 (Oct. 25, 2017). The complaint alleges
`violations of section 337 of the Tariff Act of 1930, as amended, l9 U.S.C. 1337, based upon the
`importation into the United States, the sale for importation, and the sale within the United States
`after importation of certain electrochemical glucose monitoring systems and components thereof
`by reason of infringement of one or more of claims of U.S. Patent Nos. 9,724,045 and 9,750,460.
`The notice of investigation named as a respondent AgaMatrix, Inc. of Salem, New Hampshire
`(“AgaMatriX”). The Offiee of Unfair Import Investigations was not named as a party in the
`investigation.
`A
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`On May 10, 2018, the presiding administrative law judge (“ALJ”) issued Order No. 26, granting
`a motion by AgaMatrix to strike portions of Dexcom’s expert reports. Order No. 26 struck,
`among other things, certain portions of an expert report relating to whether the accused products
`meet the “film” portion of the “enzyme-containing film” limitation of the asserted claims and
`precluded Dexcom from relying on the arguments and theories described in the struck portions of
`the expert report during the investigation.
`
`On May 17, 2018, AgaMatrix filed a motion for summary determination of non-infringement of
`the asserted patents on the basis that Dexcom cannot prove that the accused products directly or
`indirectly infringe any of the asserted claims. On May 29, 2018, Dexcom opposed the motion.
`On June 1, 2018, AgaMatrix moved for leave to file a reply in support of its motion. On June 6,
`2018, Dexcom opposed the motion for leave.
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`On June 7, 2018, the ALJ issued the subject initial detennination (“ID”) (Order No. 33), granting
`AgaMatrix’s motion for summary determination of non-infringement with respect to direct
`infringement but denying the motion with respect to indirect infringement. The ID also denied
`AgaMatrix’s motion for leave to file a reply in support of its motion and stayed the procedural
`schedule pending review of the ID.
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`On June 18, 2018, Dexcom filed a petition for review of the ID’s findings on direct infringement
`and Order No. 26. On June 25, 2018, AgaMatrix filed its opposition.
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`The Corrnnission has determined to review the subject ID in its entirety, as well as the
`underlying orders.
`”
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`The authority for the Comrnission’s determination is contained in section 337 of the Tariff Act of
`1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission’s Rules of Practice and
`Procedure (19 C.F.R. part 210).
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`By order of the Commission.
`
`W%@
`
`Lisa R. Barton
`Secretaryto the Commission
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`Issued: July 23, 2018
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`CERTAIN ELECTROCHEMICAL GLUCOSE
`MONITORING SYSTEMS AND COMPONENTS THEREOF
`
`Inv. N0. 337-TA-1075
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`PUBLIC CERTIFICATE OF SERVICE
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`I, Lisa R. Barton, hereby certify that the attached NOTICE has been served to the
`following parties as indicated, on July 23, 2018.
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`On Behalf of Complainants Dexcom. Inc.:
`
`Kirk R. Ruthenberg, Esq.
`DENTON US LLP
`1900 K Street, NW
`Washington, DC 20006
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`On Behalf of Respondents AgaMatrix, Inc.:
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`Ira Jay Levy
`GOODWIN PROCTER LLP
`The New York Times Building
`620 Eighth Avenue, 25th Floor
`New York, NY 10018
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`_
`
`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
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`II Via Hand Delivery
`E] Via Express Delivery
`E Via First Class Mail
`El Other:
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`.
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`III Via Hand Delivery
`|:\ Via Express Delivery
`Via First Class Mail
`U Other:
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