The recent decision of the U.S. Court of International Trade (CIT) in Corning Gilbert Inc. v. United States could mark a watershed for the enforcement of exclusion orders issued by the U.S. International Trade Commission (ITC) under Section 337 of the Tariff Act of 1930. If affirmed on appeal, the decision will significantly expand the role of U.S. Customs and Border Protection (CBP) in the enforcement of exclusion orders issued by the ITC. The decision also will confirm that the CIT provides importers with an avenue for judicial review of such enforcement decisions, including making substantive patent claim construction and infringement determinations.Customs appealed the decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) on March 29, 2013, and a final decision from the Federal Circuit is expected early next year.
The case arose from CBP’s exclusion of an entry of coaxial cable connectors made by Corning Gilbert pursuant to a general exclusion order (GEO) issued by the ITC in 2010 at the conclusion of a Section 337 investigation. The GEO prohibited the unlicensed entry of coaxial cable connectors that infringed claims 1 or 2 of U.S. Patent 6,558,194. Corning Gilbert was not named as a respondent in the investigation, and the ITC issued the GEO after all the respondents in the case either defaulted or entered a consent decree. Corning Gilbert protested CBP’s denial of entry to CBP under 19 U.S.C. § 1515(a). After its protest was denied, Corning Gilbert sought review of the adverse ruling at CBP Headquarters, which confirmed the denial of protest. Corning Gilbert subsequently sought judicial review in the CIT of CBP’s denial of the protest. Based on its examination of the evidence and on a construction of the claims of the patent, the CIT concluded that Corning Gilbert’s merchandise did not infringe the ‘194 patent and should not be excluded from entry by the ITC’s GEO. The CIT thus ordered CBP to admit Corning Gilbert’s merchandise.
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