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Non-Respondent’s Product Cannot Be Adjudicated for Infringement in Context of General Exclusion Order

The US International Trade Commission issued a general exclusion order (GEO) excluding from entry into the United States products infringing patents directed to luxury vinyl tile, but vacated findings in the Initial Determination (ID) adjudicating infringement for products belonging to entities not named as respondents in the investigation. The Commission explained that a finding should not be made as to whether a non-respondent’s product infringes a patent in the context of a GEO, but instead the analysis should be limited to whether the “alleged” infringement supports a finding that there is a pattern of violation of Section 337. Certain Luxury Vinyl Tile and Components Thereof, USITC Inv. No. 337-TA-1155, Comm’n Op. (Oct. 5, 2020). The ITC instituted an investigation against multiple respondents. The administrative law judge granted summary determination of violation by certain defaulting respondents and recommended a GEO. Unlike limited exclusion orders...

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Unnamed Respondent Has Standing to Seek Rescission of ITC General Exclusion Order

The US Court of Appeals for the Federal Circuit affirmed a US International Trade Commission (ITC) decision denying a petition for rescission of a general exclusion order (GEO) prohibiting importation of products accused of patent infringement, because a post-investigation invalidity attack is not a changed condition warranting rescission. Mayborn Grp., Ltd. v. Int’l Trade Comm’n, Case No. 19-2077 (Fed. Cir. July 16, 2020) (Lourie, J.). Several parties filed a complaint at the ITC against several respondents, not including Mayborn Group, Ltd., and Mayborn USA, Inc. The complaint alleged infringement of a patent disclosing a self-anchoring beverage container that prevents spills. The complainants sought a GEO barring importation of infringing goods by any party, including unnamed respondents such as Mayborn. In contrast to GEOs, limited exclusion orders only prohibit infringing goods imported by named respondents in an investigation. The ITC instituted an...

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Knowledge and Control of Importation Can Lead to § 337 Violation

The US Court of Appeals for the Federal Circuit affirmed a US International Trade Commission (ITC) decision that a respondent qualified as an importer under § 337 despite not being the actual importer of record, based on the respondent’s involvement in the importation. Comcast Corp. et al. v. ITC, Case Nos. 18-1450, -1653, -1667 (Fed. Cir. Mar. 2, 2020) (Newman, J). In 2016, Rovi filed a complaint with the ITC against Comcast and its suppliers based on infringement allegations of seven patents related to digital video guide technologies. Rovi dropped one asserted patent prior to trial, and the ITC’s administrative law judge ultimately found a § 337 violation based on two of the remaining patents. In late 2017, the ITC commissioners affirmed the administrative law judge’s determination and entered an exclusion order against Comcast. Comcast appealed. After Comcast’s motion for expedited briefing was rejected, the parties spent eight months attempting to...

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