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United States Court of Appeals for the Federal Circuit
March 7, 1997, DECIDED
[***1978] [*727] PLAGER, Circuit Judge.
Tanabe Seiyaku Co., Ltd. and Marion Merrell Dow, Inc. (collectively "Tanabe") appeal from a final determination of the United States International Trade Commission ("Commission"), in In re Certain Diltiazem Hydrochloride & Diltiazem Preparations, No. 337-TA-349. Tanabe petitioned the Commission for a determination that the importation and sale of diltiazem by certain named respondents was a violation [**2] of United States law because the product was produced by a process that infringed a patent owned by Tanabe. The Commission denied the petition. Tanabe appealed to this court. We affirm the Commission's decision.
Section 1337 ] prohibits "the importation into the United States . . . of articles that . . . are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent." 19 U.S.C. § 1337(a) (1994) 1 . Tanabe in its complaint to the Commission alleged that respondents by the importation, sale for importation, and sale within the United States of diltiazem hydrochloride and diltiazem preparations, produced by a process infringing claim 1 of United States Patent No. 4,438,035 (the " '035 patent"), were in violation of § 1337. The complaint sought an investigation by the Commission and, based on the investigation, issuance of a permanent exclusion order and permanent cease and desist orders. The complaint named ten respondents; this appeal concerns the Commission's determination as it applies to four of the respondents, Orion Corporation Fermion, Interchem Corporation, Copley Pharmaceuticals, [**3] Inc., and Rhone-Poulenc Rorer, Inc. (collectively "Fermion").
The Commission referred the matter to an administrative law judge ("ALJ") for an evidentiary hearing and initial determination. The proceedings were suspended during reexamination proceedings of the patent, requested by certain of the respondents. The suspension was lifted after the United States Patent and Trademark Office ("PTO") confirmed the patentability of all claims of the '035 patent, including claim 1, the only claim at issue.
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109 F.3d 726 *; 1997 U.S. App. LEXIS 4261 **; 41 U.S.P.Q.2D (BNA) 1976 ***
TANABE SEIYAKU CO., LTD. and MARION MERRELL DOW, INC., Appellants, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Appellee, and ORION CORPORATION FERMION, COPELY PHARMACEUTICALS, INC., INTERCHEM CORPORATION and RHONE-POULENC RORER, INC., Intervenors.
Subsequent History: [**1] Rehearing Denied and In Banc Suggestion Declined June 6, 1997, Reported at: 1997 U.S. App. LEXIS 15065. Certiorari Denied December 15, 1997, Reported at: 1997 U.S. LEXIS 7514.
Prior History: Appealed from: United States International Trade Commission.
solvents, acetone, patent, butanone, infringement, combinations, ketone, invention, doctrine of equivalents, base-solvent, experiments, acetate, alkyl, potassium carbonate, specification, diltiazem, skilled, foreign patent, substituting, inventors, yields, bases, interchangeable, importation, conditions, compound, recited, potassium hydroxide, prior art, insubstantial
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