`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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` Inv. No. 337-TA-1279
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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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`INITIAL DETERMINATION TERMINATING INVESTIGATION
`AS TO CERTAIN CLAIMS OF THE ASSERTED PATENTS
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`ORDER NO. 68:
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`(July 11, 2022)
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`On May 25, 2022, Complainants Copan Italia S.p.A. and Copan Industries, Inc.
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`(collectively, “Copan”) filed a motion (1279-052; EDIS Doc. ID 771507) to terminate the
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`investigation as to certain claims of the asserted patents (“Mot.”). Respondents Wuxi NEST
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`Biotechnology Co., Ltd., NEST Scientific Inc., NEST Scientific USA, Jiangsu Changfeng
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`Medical Industry Co., Ltd., BioTeke Corporation (Wuxi) Co., Ltd., Miraclean Technology Co.,
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`Ltd., and Huachenyang (Shenzhen) Technology Co., Ltd. and the Office of Unfair Import
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`Investigations do not oppose the motion. See Mot. at 1 (Ground Rule 3.2 Certification).
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`On September 2, 2021, the Commission instituted this investigation to determine
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`“whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the
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`United States, the sale for importation, or the sale within the United States after importation of”
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`certain flock swabs, products containing flocked swabs, and methods of using same by
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`infringement of U.S. Patent Nos. 9,011,358 (the “’358 patent”); 9,173,779 (the “’779 patent”);
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`and 10,327,741 (the “’741 patent”). 86 Fed. Reg. 49343 (Sept. 2, 2021) (EDIS Doc. ID 750793).
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`The asserted claims were claims 1, 6-9, 11-14, 16-19, 21, and 22 of the ’358 patent; claims 1, 4-
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`6, 8, 9, 11-13,16-20, and 22-24 of the ’779 patent; and claims 1, 3, 5, 7-10, 18, and 20 of the
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`’741 patent. Id. The investigation has already been terminated as to claims 7-9, 12-14, 16-19,
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`21, and 22 of the ’358 patent, claims 4-6, 8, 11-13, 16-20, and 22-24 of the ’779 patent, and
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`claims 5, 8, 9, and 20 of the ’741 patent.1
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`Copan seeks termination of the investigation with respect to claim 11 of the ’358 patent
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`and claim 7 of the ’741 patent based on Copan’s withdrawal of its allegations in the complaint
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`with respect to these claims. Mot. at 1. Copan submits that terminating the claims “will simplify
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`the Investigation, streamline the hearing, and conserve judicial and private party resources.” Id.
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`at 3.
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`Commission Rule 210.21(a)(1), 19 CFR § 210(a)(1), states, inter alia:
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`Any party may move at any time prior to the issuance of an initial
`determination on violation of section 337 of the Tariff Act of 1930
`for an order to terminate an investigation in whole or in part as to
`any or all respondents, on the basis of withdrawal of the complaint
`or certain allegations contained therein . . . . A motion for
`termination of an investigation based on withdrawal of the
`complaint, or for good cause, shall contain a statement that there
`are no agreements, written or oral, express or implied between the
`parties concerning the subject matter of the investigation, or if
`there are any agreements concerning the subject matter of the
`investigation, all such agreements shall be identified, and if
`written, a copy shall be filed with the Commission along with the
`motion. . . .
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`In accordance with Commission Rule 210.21(a)(1), 19 CFR § 210(a)(1), Copan represents that
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`“there are no agreements, written or oral, express or implied between Complainants and
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`1 Order No. 32, EDIS Doc. ID 758629 (Dec. 15, 2021) (terminating claim 7 of the ’358 patent, claims 5
`and 19 of the ’779 patent, and claim 8 of the ’741 patent), not reviewed Comm’n Notice, EDIS Doc. ID
`760102 (Jan. 10, 2022); Order No. 37, EDIS Doc ID 761658 (Jan. 28, 2022), not reviewed Comm’n
`Notice, EDIS Doc. ID 763350 (Feb. 16, 2022) (terminating claims 9 and 21 of the ’358 patent and claim
`11 of the ’779 patent); Order No. 43, EDIS Doc. ID 769504 (Apr. 29, 2022), not reviewed, Comm’n
`Notice, EDIS Doc. ID 771417 (May 24, 2022) (terminating claims 8, 12-14, 16-19, and 22 of the ’358
`patent, claims 4, 6, 8, 12, 13, 16-18, 20, and 22-24 of the ’779 patent, and claims 5, 9, and 20 of the ’741
`patent).
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`Respondents concerning the subject matter of the Investigation relevant to the adjudication of
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`this motion.”2 Mot. at 4
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`Copan filed its motion prior to the start of the evidentiary hearing in this investigation.3
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`Accordingly, absent extraordinary circumstances, termination of the investigation will be readily
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`granted. See Certain Vaginal Ring Birth Control Devices; Inv No. 337-TA-768, Order No. 30 at
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`2 (Jan. 20, 2017; EDIS Doc. ID 469294), not reviewed, Comm’n Notice (Feb. 9, 2012; EDIS
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`Doc. ID 471540) (“Femina filed its motion prior to the start of the evidentiary hearing in this
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`investigation. Thus, according to Commission precedent, termination of the investigation will be
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`readily granted absence extraordinary circumstances.”); see also Certain Ultrafiltration
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`Membrane Systems, & Components Thereof, Including Ultrafiltration Membranes, Inv. No. 337-
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`TA-107, Comm’n Action & Order, 1982 WL 1034896, at *2 (Mar. 11, 1982) (holding that “in
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`the absence of extraordinary circumstances, termination of an investigation will be readily
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`granted to a complainant during the prehearing stage of an investigation”). The undersigned
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`finds no extraordinary circumstances that prevent terminating claim 11 of the ’358 patent and
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`claim 7 of the ’741 patent from this investigation. Further, the termination of the investigation as
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`to these claims is in the public interest, as public and private resources will be conserved.
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`Certain Power Supplies, Inv. No. 337-TA-646, Order No. 18 (Jan. 5, 2009, EDIS Doc. ID
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`316902), not reviewed Comm’n Notice (Jan 29, 2009, EDIS Doc. ID 318163).
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`2 Copan states that this representation “is not intended to include stipulations entered into by any of the
`Respondents and Complainants during the course of the Investigation to streamline the case and facilitate
`discovery.” Mot. at 4 n. 2.
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`3 The evidentiary hearing was held on June 27 to July 1, 2022.
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`It is the undersigned’s Initial Determination that Copan’s unopposed motion to partially
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`terminate this Investigation (1279-052) is hereby GRANTED. Claim 11 of the ’358 patent and
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`claim 7 of the ’741 patent are hereby terminated from this Investigation.4 This Initial
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`Determination, along with supporting documentation, is hereby certified to the Commission.
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`Pursuant to 19 C.F.R. § 210.42(h), this Initial Determination shall become the
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`determination of the Commission unless a party files a petition for review of the Initial
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`Determination pursuant to 19 C.F.R. § 210.43(a), or the Commission, pursuant to 19 C.F.R. §
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`210.44, orders, on its own motion, a review of the Initial Determination or certain issues herein.
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`SO ORDERED.
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`___________________________________
`Monica Bhattacharyya
`Administrative Law Judge
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`4 Claims 1 and 6 of the ’358 patent, claims 1 and 9 of the ’779 patent, and claims 1, 3, 10, and 18 of the
`’741 patent remain in the investigation.
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