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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN FLOCKED SWABS, PRODUCTS
`CONTAINING FLOCKED SWABS, AND
`METHODS OF USING SAME
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`Investigation No. 337-TA-1279
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`CONSENT ORDER
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`The United States International Trade Commission (“Commission”) instituted the above
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`captioned investigation (“Investigation”) based on the allegations contained in the Complaint filed
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`by Complainants Copan Italia S.p.A. and Copan Industries, Inc. (together “Copan” or
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`“Complainants”) on September 2, 2021. See 86 Fed. Reg. 49343 (Sept. 2, 2021). The
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`supplemented Complaint alleges a violation of Section 337 of the Tariff Act of 1930, as
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`amended, based on the alleged importation into the United States, sale for importation, and/or sale
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`within the United States after importation of certain flocked swabs, products containing flocked
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`swabs, and methods of using the same that infringe one or more claims of U.S. Patent Nos.
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`9,011,358 (“the ’358 patent”), 9,173,779 (“the ’779 patent”), and 10,327,741 (“the ’741 patent”)
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`(collectively, the “Asserted Patents”). See id. The Complaint names 26 proposed Respondents,
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`including KSL Biomedical, Inc. and KSL Diagnostics, Inc. (together “KSL”). See id.
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`NOW, THEREFORE, the Commission issues the following Consent Order:
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`1.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(i), the Complainants in this Investigation are
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`Copan Italia S.p.A. and Copan Industries, Inc. (together, “Copan”). Copan Italia S.p.A. (“Copan
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`Italia”) is a public company under the laws of Italy, having an address of Via F. Perotti 10, 25125,
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`Brescia, Italy. Copan Industries, Inc. (“Copan Industries”), a private company, owned 90% by
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`Copan Italia, is organized under the laws of Puerto Rico, having a physical address of Carr. 110
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`Km. 28.8, San Antonio Industrial Park, Aguadilla, PR 00603, and having a postal address of 1068
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`Ave. General Ramey, #789 San Antonio, PR 00690.
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`2.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(i), the Respondents covered by this Consent
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`Order are KSL Biomedical, Inc., a Delaware Corporation with a principal place of business at 1000
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`Youngs Rd., Ste 210, Williamsville, New York 14221-2644 and KSL Diagnostics, Inc., a Delaware
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`Corporation with a principal place of business at 1000 Youngs Rd., Ste 210, Williamsville, New
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`York 14221-2644.
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`3.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(i), the subject articles in this Investigation are
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`certain flocked swabs, products containing flocked swabs, and methods of using the same,
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`specifically the KSL Disposable Swab, 52014: KSL NP/OP Swab, that have been imported into
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`the United States, sold for importation, and/or sold within the United States after importation
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`(collectively, “the Subject Articles”).
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`4.
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`The Complaint alleges that KSL imports into the United States, sells for
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`importation, and/or sells within the United States after importation, certain flocked swabs, products
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`containing flocked swabs, and methods of using the same that infringe Claims 1, 6-9, 11-13, 14,
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`16-19, and 21-22 of the ’358 patent, Claims 1, 4-6, 8-9, 11-12, 13, 16-20, and 22-24 of the ’779
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`patent, and Claims 1, 3, 5, 7-10, 18, and 20 of the ’741 patent (collectively, “the Asserted Claims”).
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`5.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(ii), KSL has executed a Corrected Consent
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`Order Stipulation.
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`6.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(iii), KSL shall not sell for importation, import,
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`or sell after importation the Subject Articles, directly or indirectly, and shall not aid, abet,
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`encourage, participate in, or induce the sale for importation, the importation, or the sale after
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`importation except under consent or license from Copan, provided, however, that KSL has the
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`express consent from Copan to exhaust its current inventory of the Subject Articles.
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`7.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(iv), KSL shall have the right to exhaust its
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`current inventory the Subject Articles, and such exhaustion of the inventory shall not constitute a
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`breach, violation, or contempt of the Consent Order Stipulation or this Consent Order.
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`8.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(v), KSL shall cease and desist from importing
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`the Subject Articles.
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`9.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(vi), KSL shall be precluded from seeking
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`judicial review or otherwise challenging or contesting the validity of the Consent Order.
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`10.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(vii), KSL shall cooperate with and shall not
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`seek to impede by litigation or other means the Commission’s efforts to gather information under
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`Subpart I of 19 C.F.R. Part 210.
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`11.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(viii), KSL and its officers, directors,
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`employees, agents, and any other entity or individual acting on its behalf and with its authority
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`shall not seek to challenge the validity or enforceability of any of the Asserted Claims in any
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`administrative or judicial proceeding to enforce the Consent Order.
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`12.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(ix), when any of the Asserted Patents expire,
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`the Consent Order will become null and void as to such Asserted Patent(s).
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`13.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(x), if any of the Asserted Claims are held
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`invalid or unenforceable by a court or agency of competent jurisdiction, or if any of the Subject
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`Articles have been found or adjudicated not to infringe any of the Asserted Claims in a final
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`decision, no longer subject to appeal, this Consent Order shall become null and void as to such
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`invalid or unenforceable Asserted Claim or such adjudicated Subject Article(s).
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`14.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(xi), KSL admits that the Commission has (a)
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`in personam jurisdiction over it for the purposes of the Stipulation and this Consent Order, (b) in
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`rem jurisdiction over the Subject Articles, and (c) subject matter jurisdiction over this
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`Investigation.
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`15.
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`Pursuant to 19 C.F.R. § 210.21(c)(4)(xii), this Investigation is hereby terminated
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`with respect to KSL; provided, however, that enforcement, modification, or revocation of the
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`Consent Order shall be carried out pursuant to Subpart I of 19 C.F.R. Part 210.
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`By order of the Commission
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`Issued: December 6, 2021
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`Lisa R. Barton
`Secretary to the Commission
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