On July 18, 2014, the International Trade Commission (the “Commission) issued a notice determining to review in its entirety the Initial Advisory Opinion (“IAO”) issued by ALJ E. James Gildea in Certain Sleep-Disordered Breathing Treatment Systems And Components Thereof (Inv. No. 337-TA-879) and to issue a Commission Advisory Opinion.

By way of background, this advisory opinion proceeding was initiated by Respondents Apex Medical Corp. and Apex Medical USA Corp. (collectively, “Apex”).  Apex sought an advisory opinion in order to confirm that their redesigned sleep-disordered breathing treatment systems are not covered by the consent order into which they previously entered.  See our December 16, 2013 post for more details on the ITC’s decision to institute this advisory opinion proceeding.  

According to the notice, ALJ Gildea issued the IAO on June 3, 2014 finding that Apex’s redesigned iCH and XT CPAP humidifiers are covered by the Consent Order, but that the redesigned WiZARD 220 mask is not covered by the Consent Order.

Both parties and the Commission Investigative Staff (“OUII”) filed petitions for review of the IAO.

After examining the relevant portions of the record of the investigation, including the IAO and the parties’ submissions, the Commission determined to review the IAO in its entirety.  According to the notice, the Commission determined to adopt, with modified reasoning, the ALJ’s determination that the iCH CPAP humidifier is covered by the Consent Order and that the WiZARD 220 mask is not covered by the Consent Order.  However, the Commission reversed the ALJ’s determination with respect to the XT CPAP humidifier, holding that this device is not covered by the Consent Order.  The Commission’s detailed findings will be set forth in a modified advisory opinion.