By Tom Fisher
In Section 337 investigations, the party that prevails before the Commission is not entitled to appeal to the U.S. Court of Appeals for the Federal Circuit the Commission’s final determination, and is not automatically a party to an appeal brought by the party that lost before the Commission.  However, the prevailing party is entitled to intervene if the losing party appeals the Commission’s determination.

Under Section 337, an appeal of an adverse Commission determination must be made “in accordance with chapter 7 of title 5.”  19 U.S.C.  § 1337(c).  Chapter 7 of title 5, in turn, only provides for appellate actions “against the United States, the [federal] agency by its official title, or the appropriate officer.”  5 U.S.C. § 703.  Accordingly, appeals of adverse determinations at the ITC in connection with Section 337 actions cannot be brought against the other party to the investigation directly; rather, they must be brought against the ITC.

Further, only parties who are “adversely affected” by a final determination of the ITC have standing to appeal to the Federal Circuit.  19 U.S.C. § 1337(c).  This statutory “adversely affected” language has been interpreted narrowly, in that only the ultimate outcome of the investigation is taken into account.  Surface Tech., Inc. v. U.S. Int’l Trade Comm’n, 780 F.2d 29, 30 (Fed. Cir.  1985); Krupp Int’l, Inc. v. U.S. Int’l Trade Comm’n, 626 F.2d 844, 846 (CCPA 1980).  This means that, e.g., respondents cannot appeal a determination that section 337 has not been violated.  See Krupp, 626 F.2d at 846; Surface Tech., 780 F.2d at 30; Tanabe Seiyaku Co., Ltd. v. U.S. Int’l Trade Comm’n, 1995 U.S. App. LEXIS 40961, at *2 (Fed. Cir. 1995).

However, in order to mitigate this harsh rule, the Federal Circuit has repeatedly held that if the losing party appeals the Commission’s decision, then the prevailing party has the right to intervene and raise any available arguments in support of the Commission’s final determination.  See, e.g., Krupp, 626 F.2d at 846 (allowing respondent to intervene in complainant’s appeal in order to, inter alia, challenge the Commission’s findings related to four patents, even though the Commission had found no violation of Section 337, due to non-infringement for one of the patents and invalidity for the other three); see also Rule 15(d) of the Federal Rules of Appellate Procedure (providing further information regarding the required substance and timing for a motion to intervene at the Federal Circuit).  Thus, as a practical matter, the prevailing party can argue against unfavorable Commission findings on appeal, as long as the losing party appeals the overall final determination first.

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