Part II: Comcasts’ Petition for Writ of Certiorari to the Supreme Court
Time to read: 3 mins
Comcast’s petition contends the Federal Circuit expanded Suprema’s holding and failed to apply Chevron deference principles to interpret Section 337. First, Comcast contends Suprema only held the ITC’s interpretation of the phrase “articles that infringe” was reasonable and did not construe the phrase to reach purely domestic patent infringement. Second, Comcast contends the Federal Circuit abdicated its responsibility to interpret the term “importation” and to address the extent to which the ITC’s construction was entitled to Chevron deference. Comcast posits that the plain text of Section 337 demonstrates Congress did not authorize the ITC to reach purely domestic infringement, and the term “importation” does not contemplate a form of secondary liability or extend to actions that cause or facilitate importation.
The text of Section 337 includes the terms “importation” and “importer,” but whether Congress intended to distinguish these two terms is unclear.8 On one hand, the ITC generally interprets the term “importation” with the definition applied by U.S. Customs and Border Protection—namely: “the bringing of goods within the jurisdictional limits of the United States with the intention to unlade them.”9 The Federal Circuit’s reliance on In re Orion Co. addressed a prior version of Section 337 that distinguished the sale of imported articles by certain persons (i.e. an importer or consignee) from an unfair act in connection with the importation of things.10 The ITC interprets the terms “owner, importer, or consignee” to apply only to sales within the U.S. under the current version of Section 337.11 On the other hand, the legislative history of Section 337 demonstrates Congress’ intent to stop undesirable methods of competition in their incipiency and that “[t]he provisions relating to unfair methods of competition in the importation of goods is broad enough to prevent every type and form of unfair practice.”12
The Supreme Court will decide whether to vacate the Federal Circuit’s ruling as moot or hear Comcast’s bid to review Suprema and apply Chevron principles to interpret and clarify these statutory terms. Thus, companies should remain cognizant that the ITC interprets “articles that infringe” to cover products that infringe after they enter the U.S. and “importation” to include parties sufficiently involved in importation activities—and not just importers of record—under Section 337.
The Respondents submitted responses on May 26, 2020. Our following posts will address recent Commission Opinions and Respondent’s Response to Comcast’s Petition for Writ of Certiorari.
June 9, 2020
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8 19 U.S.C. 1337(a)(1)(B)(i).
9 Headquarters Ruling 115311 (May 10, 2001) (quoting Hollander Co. v. United States, 22 C.C.P.A. 645, 648 (1935); United States v. Field & Co., 15 Ct. Cust. App. 406 (1927)).
10 In re Orion Co., 71 F.2d 458, 462 (C.C.P.A. 1934).
11 Certain Cigarettes & Packaging Thereof, Inv. No. 337-TA-643, Comm’n Op., 2009 WL 6751505 at *5-6 (Oct. 1, 2009) (“Application of the doctrine of the last antecedent suggests that Congress did not intend the “owner, importer, or consignee” phrase to apply to importations and sales for importation, for if it did so, it would have placed a comma after the phrase “sale within the United States after importation. […] Because the 1988 amendments were not intended to change the current law relating to importation or sale, we conclude that the 1988 amendments do not undermine earlier Commission decisions holding that the…language applied only to sales within the United States after importation.”)
12S. Rep. No. 67-595, pt.1 at 3 (1922).