Certain Vaporizer Devices, Cartridges Used Therewith, and Components Thereof II; Inv. No. 337-TA-1460 (Violation)

The Commission vacated the ALJ's construction of "nicotine concentration" and the resulting grant of summary determination of invalidity and no violation, and remanded to the ALJ for further proceedings. No violation finding was made on the merits and no exclusion order issued. The ruling revives JUUL's complaint against NJOY and Altria on the '533 patent, since the anticipation-based no-violation finding rested on the vacated construction. No remedy is yet in play, so no exclusion order or bond exists. The remand is interlocutory, so appeal prospects depend on the final determination after remand. The Commission reviewed the ID in its entirety and then vacated the ID's construction of "nicotine concentration". It construed the term as "the amount of nicotine in the claimed nicotine salt, expressed as a percentage of nicotine weight to total solution weight", which tracks JLI's proposal. The ID's reading would render "the salt is present in an amount that forms" superfluous, and the ID misread JLI's proposal as measuring nicotine in the salt alone rather than in the whole formulation. The specification's emphasis on nicotine salt versus free base, the prosecution history, and the weak conclusory expert evidence all supported JLI's construction. The Commission vacated the grant of summary determination of invalidity by anticipation and remanded; it made no ruling on domestic industry, remedy, bond or public interest.