Yesterday, the Federal Circuit denied a request for en banc rehearing in a case of first impression involving the importation of digital files. The case stems from a decision last November in ClearCorrect v. ITC, where a panel held that the ITC’s authority to limit the importation of infringing “articles” only extended to “material things,” and not to electronic files (3D printable files of teeth aligners, in this case). Of note, the denial of the en banc petition included 1-page per curiam order, 4-page concurrence, and a 21-page dissent. The lone dissenter (Judge Newman) argued that the panel’s decision was at odds with precedent, including the en banc court’s opinion in Suprema v. ITC, and that various unfair practices in imports statutes make no distinction between digital and tangible products. In responding to the dissent, the concurrence (authored by Chief Judge Prost and Judge O’Malley, joined by Judge Wallach) disagreed, stating that “when Congress want[s] to bridge the gap between the non-digital world and the digital world, it [will do] so affirmatively.”
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