Federal Circuit Cases Involving the ITC
By Eric Schweibenz and Alex Englehart
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Mar
02
On February 15, 2017, the U.S. Court of Appeals for the Federal Circuit issued its opinion in Organik Kimya, San. Ve Tic. A.S. v. ITC (2015-1774, 2015-1833). This was an appeal from the U.S. International Trade Commission’s (“the Commission”) final determination imposing a default judgment against Respondents Organik Kimya San. ve Tic., A.S., Organik Kimya Netherlands B.V., and Organik Kimya US, Inc. (collectively, “Organik Kimya”) and issuing a 25-year limited exclusion order and cease and desist order in Certain Opaque Polymers (Inv. No. 337-TA-883).

By way of background, the Commission instituted this investigation on June 18, 2013 based on a complaint filed by Rohm and Haas Co., Rohm and Haas Chemicals LLC, and Dow Chemical Co. (collectively, “Dow”). In the complaint, Dow alleged that Organik Kimya violated Section 337 in the importation into the U.S. and sale of certain opaque polymers that infringe one or more claims of U.S. Patent Nos. 6,020,435; 6,252,004; 7,435,783; and 7,803,878. See our May 22, 2013 and June 20, 2013 posts for more details on the complaint and notice of investigation, respectively. Dow subsequently filed an amended complaint alleging that Organik Kimya had misappropriated Dow trade secrets. During the investigation, it was uncovered that Organik Kimya had intentionally destroyed evidence responsive to Dow’s discovery requests and violated explicit discovery orders by the presiding Administrative Law Judge, Thomas B. Pender. See our May 26, 2015 post for more details.
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By Eric Schweibenz and Tom Yebernetsky
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Nov
24
On November 12, 2015, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) issued its precedential opinion in DeLorme Publ’g Co., Inc. v. ITC (2014-1572).  This was an appeal from the U.S. International Trade Commission’s (“the Commission”) determination finding a violation of the consent order entered in Certain Two-Way Global Satellite Communication Devices, System and Components Thereof (Inv. No. 337-TA-854).

By way of background, the Commission instituted the underlying investigation on September 18, 2012 based on BriarTek IP, Inc.’s (“BriarTek”) complaint of August 17, 2012.  See our September 19, 2012 post for more details.  On March 15, 2013, former ALJ Robert K. Rogers, Jr. granted a motion by DeLorme Publishing Co., Inc. and DeLorme InReach, LLC (collectively, “DeLorme”) to terminate the investigation and for entry of a proposed consent order (“the Consent Order”).  See our March 19, 2013 post for more details.  In the consent order, DeLorme agreed that it would not import or sell two-way global satellite communication devices, systems, or components thereof that infringe BriarTek’s U.S. Patent No. 7,991,380 (the ’380 patent) after April 1, 2013.  On April 10, 2013, BriarTek filed an enforcement complaint alleging that DeLorme violated the Consent Order.  See our April 11, 2013 post for more details.  On July 2, 2014, the Commission issued the public version of its opinion in the enforcement proceeding determining that DeLorme violated the Consent Order and imposed a civil penalty of $6,242,500.  See our July 9, 2014 post for more details.
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By Eric Schweibenz and Lisa Mandrusiak
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Nov
11
On November 10, 2015, the U.S. Court of Appeals for the Federal Circuit issued its precedential opinion in ClearCorrect Operating, LLC v. ITC (2014-1527).  This was an appeal from the International Trade Commission’s (“the Commission”) determination finding a violation of Section 337 in Certain Digital Models, Digital Data, and Treatment Plans for Use In Making Incremental Dental Positioning Adjustment Appliances Made Therefrom, and Methods of Making the Same (Inv. No. 337-TA-833).

By way of background, the International Trade Commission instituted this investigation on March 20, 2012 based on a complaint filed by Complainant Align Technology, Inc. (“Align”). In the Complaint, Align alleged that Respondents ClearCorrect Operating, LLC and ClearCorrect Pakistan (Private), Ltd. (collectively, “ClearCorrect”) violated Section 337 in the importation into the U.S. and sale of certain digital models, digital data, or treatment plans for use in making incremental dental positioning adjustment appliances that infringe—or are made, produced, or processed by means of a process that infringes—one or more claims of various U.S. patents.  See our March 2, 2012 and April 6, 2012 posts for more details on the complaint and Notice of Investigation.
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By Eric Schweibenz and Alex Englehart
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Aug
13
On August 10, 2015, the U.S. Court of Appeals for the Federal Circuit issued its en banc opinion in Suprema Inc. v. Int'l Trade Comm'n (2012-1170).  In the opinion, the Federal Circuit determined to uphold the U.S. International Trade Commission's (the "Commission" or "ITC") position that allegations of induced infringement are actionable at the ITC even where the underlying direct infringement does not occur until after importation.

By way of background, this was an appeal from the Commission's final determination in Certain Biometric Scanning Devices, Components Thereof, Associated Software, and Products Containing the Same (Inv. No. 337-TA-720) finding a violation of Section 337 by Suprema, Inc. and Mentalix, Inc.  In reaching its final determination, the Commission had held that the statutory language making unlawful the importation of "articles that ... infringe a valid and enforceable United States patent" covered the importation of goods that, after importation, are used by the importer to directly infringe at the inducement of the goods' seller.  On appeal, a Federal Circuit panel disagreed with the Commission's conclusion on this issue, reasoning that there are no "articles that infringe" at the time of importation when direct infringement does not occur until after importation.  See our December 19, 2013 post for more details.  The Federal Circuit subsequently granted rehearing en banc and vacated the panel decision.
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By Eric Schweibenz and Tom Yebernetsky
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May
13
On May 11, 2015, the U.S. Court of Appeals for the Federal Circuit issued a precedential opinion reversing the International Trade Commission's (the "Commission") final determination finding a violation of Section 337 in Lelo Inc., et al v. Int'l Trade Comm'n (2013-1582).  This was an appeal by Respondents Lelo Inc. and Lelo AB (collectively, "Lelo") in connection with Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).

By way of background, the investigation is based on a December 2, 2011 complaint filed by Standard Innovation Corporation and Standard Innovation (US) Corp. (collectively, "Standard Innovation") alleging violation of Section 337 in the importation into the U.S. and sale of certain kinesiotherapy devices and components thereof that infringe one or more claims of U.S. Patent No. 7,931,605 (the '605 patent) and U.S. Patent No. D605,779 (the D'779 patent).  Standard Innovation withdrew the D'779 patent from the investigation.  An evidentiary hearing was held in August 2012.  On February 8, 2013, ALJ Pender issued an Initial Determination ("ID") construing the terms of the asserted claims and finding the '605 patent valid and infringed, but finding no violation of Section 337 on the grounds that Standard Innovation did not satisfy the economic prong of the domestic industry requirement.  See our February 11, 2013 post for more details.
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By Eric Schweibenz and Kate Cappaert
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Mar
27
On March 20, 2015, the U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision affirming the International Trade Commission's ("the Commission") final determination of no violation of Section 337 in LSI Corp. et al. v. Int'l Trade Comm'n (2014-1410).  This was an appeal by Complainants LSI Corporation and Agere Systems LLC (collectively, "LSI") in connection with Certain Audiovisual Components and Products Containing the Same (Inv. No. 337-TA-837).

By way of background, this investigation is based on a March 2, 2012 complaint filed by LSI alleging violation of Section 337 with regard to certain audiovisual components and products containing the same including certain digital televisions, Blu-ray disc players, home theater systems, DVD players and/or recorders that infringe one or more claims of U.S. Patent Nos. 5,870,087 (the '087 patent), 6,982,663 (the '663 patent), 6,452,958 (the '958 patent), and 6,707,867 (the '867 patent).  See our April 15, 2014 post for more details on the investigation.
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By Eric Schweibenz and John Presper
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Feb
25
On February 18, 2015, the U.S. Court of Appeals for the Federal Circuit issued a decision affirming the International Trade Commission's ("the Commission") final determination of no violation of Section 337 in InterDigital Commc'ns, Inc. et al. v. Int'l Trade Comm'n (2014-1176).  This was an appeal by Complainants InterDigital Communications, Inc., InterDigital Technology Corporation, and IPR Licensing, Inc. (collectively, "InterDigital") in connection with Certain Wireless Devices with 3G Capabilities and Components Thereof (Inv. No. 337-TA-800).

By way of background, this investigation is based on a July 26, 2011 complaint filed on behalf of InterDigital alleging violation of Section 337 by Respondents Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corp., ZTE (USA) Inc., and Nokia (collectively, "Respondents") in the importation and/or sale of certain wireless devices with 3G capabilities and components thereof that infringe one or more claims of several U.S. patents.  See our July 28, 2011 and August 29, 2011 posts for more details on the complaint and notice of investigation, respectively.
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By Eric Schweibenz
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Jan
06
On December 19, 2014, the U.S. Court of Appeals for the Federal Circuit issued a non-precedential decision affirming the International Trade Commission's (the "Commission") final determination of no violation of Section 337 in Creative Kingdoms, LLC et al. v. Int'l Trade Comm'n (2014-1072).  This was an appeal by Complainants Creative Kingdoms, LLC and New Kingdoms, LLC (collectively, "CK") in connection with Certain Video Game Systems and Wireless Controllers and Components Thereof (Inv. No. 337-TA-770).
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By Eric Schweibenz and John Presper
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Dec
11
On November 25, 2014, the Federal Circuit issued a non-precedential order granting the International Trade Commission's (the "Commission") motion to dismiss the appeal as premature in A&J Manufacturing, LLC et al. v. Int'l Trade Comm'n (2014-1742).  This was an appeal by Complainants A&J Manufacturing, LLC and A&J Manufacturing, Inc. (collectively, "A&J") from the Commission's decision affirming-in-part the ALJ's Initial Determination ("ID") of non-infringement of certain products in Certain Multiple Mode Outdoor Grills and Parts Thereof (Inv. No. 337-TA-895).

By way of background, A&J filed a complaint in August 2013 alleging violation of Section 337 by over 20 proposed respondents in the importation and sale of certain multiple mode outdoor grills and parts thereof that infringe one or more claims of U.S. Patent Nos. 8,381,712 ("the '712 patent"), D660,646 and D662,773.  See our August 22, 2013 and September 23, 2013 posts for more details on the complaint and notice of investigation, respectively.
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By Eric Schweibenz and John Presper
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Sep
30
On September 25, 2014, the Federal Circuit issued its opinion in uPI Semiconductor Corp. v. Int'l Trade Comm'n (2013-1157, 1159).  This was an appeal by Respondent uPI Semiconductor Corp. ("uPI") and the companion appeal of Complainants Richtek Tech. Corp. and Richtek USA, Inc. (collectively, "Richtek") from the International Trade Commission's (the "Commission") rulings in an enforcement proceeding, Certain DC-DC Controllers and Products Containing Same (Inv. No. 337-TA-698).

By way of background, Richtek filed a complaint in 2010 alleging that uPI misappropriate Richtek's trade secrets and violated Section 337 through the importation and/or sale of DC-DC controllers and downstream products containing same that infringed Richtek's U.S. Patent Nos. 7,315,190 ("the '190 patent"), 6,414,470 ("the '470 patent") and 7,132,717 ("the '717 patent").  Shortly before the evidentiary hearing, uPI moved to terminate the investigation by unilaterally offering to enter into a consent order whereby uPI would cease importation of all products produced using or containing Richtek's trade secrets or infringing Richtek's patents.  Over Richtek's objection, the ALJ agreed to enter the consent order substantially as drafted and proposed by uPI.  The Commission declined to review the ALJ's grant of uPI's motion, and terminated the investigation and entered the consent order.
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