On April 3, 2014, the International Trade Commission (the ITC or the “Commission”) released an opinion in In the Matter of 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 (“Digital Models”), which has reaffirmed the Commission’s jurisdiction over electronic transmissions. While Digital Models does not radically depart from Commission precedent, it has nonetheless prevented the ITC and Section 337 from lacking jurisdiction over digitally transmitted products.

BACKGROUND -

Digital Models is the latest in a long series of battles over dental repositioning appliances. Complainant Align Technology, Inc. (“Align”) makes Invisalign®, a popular series of clear plastic dental repositioning appliances. In 2005, the founder and former CEO of Align left Align and founded a competitor, OrthoClear, Inc., which produced similar dental appliances. Align sued OrthoClear for patent infringement in 2006. The OrthoClear suit resulted in a settlement barring OrthoClear and its employees from selling products using Align technology. Not long after that settlement, another competitor – ClearCorrect – emerged with similar products and, according to Align, with some of the same management as OrthoClear. Digital Models is Align’s infringement suit against ClearCorrect.