ITC Section 337 Update

by King & Spalding
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Commission Confirms That Electronic Transmissions Are "Articles" Under Section 337– On April 10, 2014, the Commission issued a public version of its Opinion affirming-in-part, reversing-in-part and denying-in-part the ALJ’s Initial Determination in Certain Digital Model, and Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, Inv. No. 337-TA-833. Notably, the Commission affirmed the ALJ’s findings that Respondent CCPK contributorily infringes the asserted patents "by sending the digital data sets into the United States to CCUS" and that the Commission has jurisdiction to address electronic importations as “articles” under 19 U.S.C. §1337. The Commission also affirmed the ALJ’s recommendations, following Certain Hardware Logic Emulation Systems, Inv. No. 337-TA-383, to enter a cease and desist order, but not a limited exclusion order, that prohibits the importation of the digital data. This decision follows the receipt of third party submissions, including submissions on both sides of the issue from parties such as Nokia, Google , Motion Picture Association of America, Association of American Publishers and Belles Katz LLC, in response to the Commission’s March 21, 2014 notice extending the target date and inviting briefing and public comments on whether electronic transmissions are “articles” within the meaning of Section 337.

Will The Federal Circuit Grant Panel Rehearing Or Rehearing En Banc In Suprema? – As previously reported in prior ITC Section 337 Updates on December 19, 2013, and February 25 and March 13, 2014, the Federal Circuit issued a split panel Opinion in Suprema v. ITC, 2013 WL 6510929, Appeal No. 12-1170 (Fed. Cir. December 13, 2013) holding that "an exclusion order based on a violation of 19 U.S.C. §1337(a)(1)(B)(i) may not be predicated on a theory of induced infringement under 35 U.S.C. §271(b) where direct infringement does not occur until after importation of the articles the exclusion order would bar."  In response to this decision, the Commission filed a Combined Petition for Panel Rehearing and Rehearing En Banc on February 14, 2014, followed by a Brief Of Amici Curiae filed by Nokia on March 7, 2014, in support of the Commission’s Petition.  On March 25, 2014, Appellants Suprema and Mentalix filed a Combined Response, urging the Federal Circuit not to hold a rehearing and overturn the split panel’s decision that, according to Appellants, would “impermissibly expand the Commission’s statutory authority to be nearly coextensive with the courts.”  A Federal Circuit decision whether to grant panel rehearing or rehearing en banc is pending.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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