Category Archives: ITC

Federal Circuit ClearCorrect  Decision May Impact Downloaded Software as Well as Digital Data

Author: Elizabeth A. Niemeyer
Editor: Jeff T. Watson

On March 31, 2016, the Federal Circuit denied a petition to rehear en banc its panel decision in ClearCorrect Operating, LLC v. International Trade Commission, No. 14-1527 (Fed. Cir. Nov. 10, 2015), which held that “digital data” is not an “article” within the meaning of 19 U.S.C. § 1337 and, consequently, that the U.S. International Trade Commission does not have jurisdiction over digital data.

The Federal Circuit’s per curiam order ends speculation on whether the Federal Circuit will reconsider its holding in ClearCorrect. It remains unknown whether the ITC will seek review by the Supreme Court. Practitioners must now turn their eyes back to the ITC to learn the full impact of the decision.

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En Banc Review Denied: Digital Transfers Off Limits at ITC!

Editor: Lauren J. Dreyer

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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Suprema Inc. v. ITC  and ClearCorrect Operating v. ITC Top the List of the Most Important Federal Circuit Decisions from 2015

Author: Esther H. Lim

In a pair of 2015 cases, the Federal Circuit reached different conclusions on the ITC’s authority over patent cases. In August, in Suprema Inc. v. ITC, No. 12-1170 (Fed. Cir. Aug. 10, 2015)—a case involving fingerprint scanners—a split en banc Court held that the ITC can prevent importation of goods based on induced infringement.  Several months later, in ClearCorrect Operating v. ITC, No. 14-1527 (Fed. Cir. Nov. 10, 2015)—a case involving 3D digital models for teeth aligners—a split panel held that the ITC cannot prevent importation of digital data.  These represent two of the most important Federal Circuit decisions from 2015 because they define the scope of ITC’s authority to bar importation in an increasingly global and digital world where cross-border collaborations abound and the distinction between tangible products and digital representations has blurred. Continue reading

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