ITC Says the Importation of Digital Data Can Constitute Importation of a Patent-Infringing Product

On April 3, 2014, the United States International Trade Commission affirmed that the importation of digital data via electronic transmission can constitute “importation” of a patent-infringing product in violation of Section 337 of the Tariff Act. In addition, the Commission issued a cease-and-desist order without an accompanying exclusion order.

The Commission instituted 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”) on April 5, 2012 based on a complaint filed by Align Technology who makes InvisAlign clear dental positioning appliances. The respondents, ClearCorrect US and ClearCorrect Pakistan, allegedly gather dental information from patients in the U.S., send that information to Pakistan for processing, then send the information back to the U.S. to manufacture customized appliances for the patient. The Complainant alleged that this infringed its patented method.

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