Digital Models: ITC And Align Ask For Federal Circuit En Banc Review

On January 27, 2016, both the International Trade Commission (ITC or "Commission") and Align Technology, Inc. ("Align") petitioned the Federal Circuit for en banc review of the panel's decision in ClearCorrect v. ITC. A three-judge panel of the Federal Circuit ruled in November 2015 that the ITC's jurisdiction under Section 337 is limited to "material things" and does not extend to electronically transmitted data. The panel's decision means that the ITC cannot block the importation of data transmissions (such as downloadable software) that infringe U.S. patents. Reconsideration of that decision would allow the full Federal Circuit to examine the legal and policy implications of excluding electronic transmissions from the ITC's jurisdiction.

Background

The Federal Circuit case ClearCorrect v. ITC is an appeal of the Commission's final determination in 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"). In that case, complainant Align asserted that electronically transmitted models of dental repositioning devices were "articles" under Section 337. On April 3, 2014, the Commission ruled that electronic transmissions were "articles" subject to the ITC's jurisdiction. On November 10, 2015, the Federal Circuit released an opinion, written by Chief Judge Prost, reversing the Commission's determination and holding that the term "articles" is limited to "material things." Our blog post discussing the background of Digital Models and Chief Judge Prost's opinion is available here; our article summarizing the Federal Circuit oral arguments is available here; and our article on the Commission's final determination is available here.

The Petitions for En Banc Review

The Commission's petition for en banc review faults the Federal Circuit panel for its interpretation of the term "articles" and for its application of the two-step Chevron analysis.

Regarding the panel's definition of "articles," the Commission argues that the panel's "narrow" interpretation of "articles" as "material things" is "an ordinary meaning ... not the ordinary meaning" of "articles" in the statute.1 Specifically, pointing to numerous dictionary definitions and evidence of statutory context, the Commission argues that the panel's definition is improperly limited.2 According to the Commission, the panel's...