Top Developments At The ITC In 2015

The past year has seen a number of major developments for Section 337 investigations at the International Trade Commission, including several high profile Federal Circuit decisions, the announcement or proposed expansion of two pilot programs for expedited proceedings, and the naming of a new Administrative Law Judge (ALJ). Here are the top developments at the ITC in 2015:

In August 2015, the en banc Federal Circuit ruled in Suprema v. ITC that the ITC has the power to exclude infringing imports under an induced infringement theory even if the imports do not infringe the patented method until after they have been imported into the United States. The court held that the statutory language "articles that infringe" covers goods that infringe the asserted patent post-importation. The accused products were fingerprint scanning devices that did not infringe until software was added within the United States. By reversing an earlier panel decision, the Federal Circuit eliminated substantial uncertainty as to whether method patents (which would generally only be infringed after importation) are enforceable at the ITC. Suprema v. ITC, 796 F.3d 1338 (Fed. Cir. 2015) is discussed in our previous post, " Suprema v. ITC: Federal Circuit Affirms Induced Infringement at ITC." In November 2015, a Federal Circuit panel issued its decision in ClearCorrect v. ITC, concluding that the ITC does not have the authority to exclude infringing digital products (e.g., software or other data) that are electronically transmitted to the United States (as opposed to being imported on a physical medium, such as a CD-ROM). Interpreting Section 337, the court held that the term "articles" is limited to "material things." In her dissent, Judge Newman pointed out that the decision would permit exclusion of infringing digital data carried on discs or other storage media, but not the same infringing data if transmitted electronically. The Commission recently filed a request for en banc rehearing of this appeal, which has not yet been ruled upon by the court. ClearCorrect Operating, LLC v. ITC, 116 U.S.P.Q.2d 1883 (Fed. Cir. 2015) is discussed in our previous posts, " Digital Models: Federal Circuit Rejects ITC Jurisdiction Over Electronic Transmissions," and " Digital Models: ITC and Align Ask for Federal Circuit En Banc Review." In March 2015, the Federal Circuit again affirmed that to establish a domestic industry based on licensing activities, the complainant must show the...