By Eric Schweibenz and Kate Cappaert
On September 16, 2014, the International Trade Commission (the "Commission") issued an order and opinion granting Respondents' motion to correct or clarify the cease and desist orders in Certain Digital Models, Digital Data, and Treatment Plans For Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, and Methods of Making the Same (Inv. No. 337-TA-833).

By way of background, this investigation is based upon a complaint filed by Align Technology, Inc. ("Align) alleging violations of Section 337 in the importation into the United States, sale for importation, and sale within the United States after importation of certain digital models, digital data, and treatment plans for use in making incremental dental positioning adjustment appliances that infringe one or more claims of U.S. Patent Nos. 6,217,325; 6,722,880; 8,070,487; 6,471,511; 6,626,666; 6,705,863; and 7,134,874.  See our March 2, 2012 post for more details on Align's complaint.  The notice of investigation named ClearCorrect Operating, LLC and ClearCorrect Pakistan (collectively, "ClearCorrect") as Respondents.  See our April 6, 2012 post for more information on the Notice of Investigation.  On May 6, 2013, ALJ Robert K. Rogers, Jr. issued an Initial Determination ("ID") in the investigation and recommended issuing cease and desist orders directed to ClearCorrect.  See our June 24, 2013 post for more information on the ID.  On April 3, 2014, the Commission issued notice of its determination to affirm-in-part, modify-in-part, and reverse-in-part the final ID and to find a violation of Section 337.  The Commission also terminated the investigation.

On April 16, 2014, ClearCorrect filed a motion to correct or clarify the cease and desist orders.  ClearCorrect requested clarification of two parts of the April 3, 2014 cease and desist orders.  First, ClearCorrect sought clarification of the preamble of the orders, arguing that the preamble could be construed to prohibit unspecified conduct that is "wholly domestic," such as the "advertising within the United States of products made exclusively within the United States from processes that occur only in the United States."  ClearCorrect also sought clarification of certain prohibitions contained in Section III(B) of the orders which states that ClearCorrect shall not: "market, distribute, sell or otherwise transfer (including through electronic transmission) in the United States (except for exportation) imported covered products or any products made using covered products."  ClearCorrect contended that the Commission meant to include the word "imported" in the final clause so that the provision would read "imported covered products or any products made using imported covered products."  Without that modification, ClearCorrect argued that the provision could be read to prohibit the sale, marketing, or distribution of domestic products made using wholly domestic covered products.

In clarifying the cease and desist order, the Commission stated that conduct prohibited by the cease and desist orders is tied to activities involving the use of imported covered products.  The Commission noted that even if, as ClearCorrect incorrectly argued, the orders were unclear on their face, based on the scope of the Commission's activities the acts prohibited by the orders would still implicitly involve the imported covered products. Accordingly, the Commission found that, because the orders were clear, no modification of the orders was necessary.