2020-02337. Certain Blood Separation and Cell Preparation Devices; Notice of Commission Determination Not To Review an Initial Determination Terminating the Investigation Based on the Withdrawal of the Complaint; Termination of Investigation

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined not to review an initial determination (“ID”) (Order No. 17) that grants the complainant's motion to terminate this investigation based on the withdrawal of the complaint. This investigation is terminated.

FOR FURTHER INFORMATION CONTACT:

Ron Traud, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone [phone]. 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 Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone [phone]. General information concerning the Commission may also be obtained by accessing its internet server at https://www.usitc.gov. The public record for this investigation may be viewed on the Commission's electronic 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, telephone [phone].

SUPPLEMENTARY INFORMATION:

The Commission instituted this investigation on March 12, 2019, based on a complaint filed by RegenLab USA LLC of New York, New York (“RegenLab”). 84 FR 8891 (Mar. 12, 2019). The complaint, as amended, alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain blood separation and cell preparation devices by reason of infringement of certain claims of U.S. Patent No. 10,064,894. Id. The amended complaint further alleges that an industry in the United States exists as required by section 337. Id. The notice of investigation named as respondents Estar Technologies, Ltd. of Holon, Israel, and Eclipse MedCorp, LLC of The Colony, Texas (collectively, “Respondents”). Id. The Office of Unfair Import Investigations (“OUII”) was named as a party to the investigation. Id.

On November 13, 2019, RegenLab filed a motion to terminate the investigation in its entirety based on the withdrawal of the complaint. On November 15, 2019, Respondents filed a response stating that they did not oppose the motion to terminate, on the condition that an order to show cause issue regarding whether RegenLab and its previous counsel should not be sanctioned. On November 22, 2019, Respondents filed a motion seeking that show cause order. On November 25, 2019, OUII filed a response supporting the motion to terminate the investigation.

On December 20, 2019, the presiding administrative law judge (“ALJ”) issued Order No. 16, which denied Respondents' motion for the show cause order.

Also on December 20, 2019, the ALJ issued Order No. 17, the subject ID, granting pursuant to 19 CFR 210.21(a) RegenLab's motion to terminate the investigation. The ID finds that RegenLab's motion complies with the Commission's Rules. No petitions for review were filed.

The Commission has determined not to review the subject ID. However, the Commission notes that RegenLab filed its motion to terminate six days before the hearing was scheduled to begin, after extensive proceedings, including discovery, had occurred before the ALJ. As a general matter, the Commission notes that withdrawal of a complaint at such a late stage of the investigation raises questions about what effect, if any, termination would have on a future complaint that might be filed based on the same or similar alleged violations of section 337 by the same respondents, and how the record from the terminated investigation may be used in such a future investigation. This investigation is terminated.

The authority for the Commission'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 CFR part 210).

By order of the Commission.

Issued: January 31, 2020.

Lisa Barton,

Secretary to the Commission.