Suprema, Inc. v. International Trade Commission

crosoft Corporation. represented Also by REYNA, Circuit Judge. Cederoth, Richard Alan Pritikin, David T. IL; Chicago, Nester, Brian R. Ryan C. Section 337 of the Tariff Act of Morris, DC; Washington, Thomas Andrew (“Section codified at 19 U.S.C. Culbert, David E. Killough, Microsoft Cor- 337”), declares certain acts unlawful. poration, Redmond, WA. Among them is importing “articles that Thorne, Huber, John Kellogg, Hansen, ... infringe a valid and enforceable United Todd, Figel, PLLC, Evans & Washington, patent.” States U.S.C. DC, for Inc., amici curiae Dell Sys- Adobe 1337(a)(l)(B)(i). International tems, Inc., Co., Ford Motor Hewlett- (“Commission”) Trade Commission inter Co., Packard Co., Ltd., LG Display LG preted provision this cover Electronics, Inc., Netflix, Inc., Samsung that, goods after importation, are used Co., Ltd., Electronics America, SAP Inc. importer directly infringe at the represented

Also Panner, Aaron M. goods’ inducement of the seller. A majori Melanie L. Bostwick. ty panel of this court disagreed, reasoning Daryl Joseffer, King LLP, & Spalding that there are no that infringe” “articles Washington, DC, for amicus Google curiae the time of importation when direct in Inc. Also represented by Conrad, Adam importation. fringement does not occur until after Charlotte, NC; Michel, Suzanne Google Supr ema, Inc. v. Int’l Trade Inc., Washington, DC. Comm’n, (Fed.Cir. Fues, Eric Jay Finnegan, Henderson, 2013). so, In doing panel effectively Farabow, Dunner, LLP, Garrett & Wash- eliminated trade relief under Section 337 DC, ington, for amicus curiae International for and potentially Trade Trial Lawyers Associa- for all types of infringement of method tion. Also represented by walker, T. CY claims. Kenyon LLP, & Kenyon Washington, DC. Haynes, John D. LLP, Alston & Bird granted We en banc rehearing and va-

Atlanta, GA, for amici curiae Corpo- Nokia decision, cated panel 2014 WL ration, USA, Nokia Inc. represented Also and uphold nowwe posi- Commission’s by Adam Swain, David Washington, DC. tion. We conclude that because Section 337 does not answer question PROST, Before before Judge, Chief us, NEWMAN, LOURIE, interpretation Commission’s DYK, O’MALLEY, Sec- REYNA, WALLACH, TARANTO, tion 337 is entitled to Chevron deference. CHEN, HUGHES, Circuit Judges.* We hold that the interpreta- * Judges Circuit partici- pate. Moore Stoll did not assignee of several Match is the Cross it is consistent reasonable because

tion is in biome- technology used covering patents mandate to Congress’ 337 and with Section including Pat- imaging tric scanners safeguard United the Commission (“the 7,203,344 patent”), the '344 at the Nos. interests border. ent commercial States appeal. only patent case to relevant this Accordingly, we return are drawn to consistent '344 proceedings claims of the further panel and methods scanning systems fingerprint opinion. this process fingerprint image, generate identify key regions, image to BackgRound I. 19, the quality. Claim image determine appeal us on before case comes This appeal, recites: remaining this sole claim by the Commis- final determination from pro- and capturing method for 19. A sion, a of Section finding violation the method fingerprint image, a cessing Mentalix, Inc., Cer- Inc., and Suprema, comprising: Devices, Compo- Scanning Biometric tain Software, and Thereof, (a) Associated fingers; nents more scanning one or Same, No. Containing the Inv. Products (b) a cor- data capturing representing 337 authorizes 337-TA-720. image; responding fingerprint allegations of investigate Commission (c) fingerprint image; filtering importation acts in the trade unfair a valid United States infringe that articles (d) fingerprint binarizing the filtered 1337(b)(1). viola- If a 19 U.S.C. patent. image; found, the Commis- statute is tion (e) area based detecting fingerprint a that order bars issues exclusion sion pixels of black concentration all of the importation some image; fingerprint the binarized a related cease may issue products the Commission (f) shape order unless fingerprint and desist detecting factors interest public certain that the con- arrangement finds on an based Id. remedy. such against militate in an oval-like pixels centrated black 1337(d). im- fingerprint shape in the binarized age; Technologies, Match May In Cross the detected determining whether Match”) (g) (“Cross complaint with filed a

Inc. of an shape are area and fingerprint Commission, alleging infringement quality. acceptable Match involv- by Cross patents owned four scanning devices. ing fingerprint certain 19 11. patent col. 24-37. '344 to be the scanners found Inc., that company is a Korean Suprema, abroad, im- by Suprema manufactured fingerprints, scanning makes hardware by both into the States ported United fingerprint its RealScan line including Mentalix and Mentalix. subse- Suprema the scanners Suprema sells scanners. soft- scanners with combined the quently not stan- Mentalix, are Inc.1 scanners ware, sold the scanners and used and function, they must To products. dalone States. the United them to and uses shows at trade into scanners imports Suprema separately scanners United States displays obtain a certification Suprema these United States. be computer, connected to a and that com- 19 of the '344 when used puter must custom-developed have soft- SDK kits and Mentalix’s FedSubmit soft- ware running. installed and Suprema ware. J.A. 133. does not make or sell this software. In- Based on the finding that the pat- '344 stead, it each ships scanner with a “soft- ent infringed, was the ALJ issued a Final (“SDK”)

ware development kit” Initial Determination that there had been developing used for programs custom “a importa- violation section 337 in the control the functions of its scanners. The States, tion into the United impor- sale for SDK comes with an instruction manual tation, and sale within the United States that explains how programs can written after of certain biometric scan- advantage to take functionality. of scanner ning devices” and “associated software.”

Mentalix, Inc., is an company American recommended, J.A. 205. The ALJ that a purchases Suprema’s scanners and limited exclusion order issue would imports those scanners into the United bar Suprema’s infringing scanners from software, States. It writes custom called entering the United States.2 Id. The ALJ FedSubmit, Suprema’s which uses SDK to further recommended that a cease-and-de- operate control and the scanners. Menta- sist issue prevent order Mentalix from lix then bundles its software with the scan- distributing the infringing scanners. Id. ners and resells the bundle within the In June the Commission deter- United States. mined to review the Final ALJ’s Initial The Commission an investiga- instituted Determination of infringement of claim 19 Suprema’s tion of accused scanners patent. the '344 J.A. 209. The Com- June 2010 pursuant 19 U.S.C. requested mission briefing on the issues 1337(a)(l)(B)(i). Fed.Reg. 34482-83 review, “requested and written sub- (June 2010). 337(a)(l)(B)(i) de- missions on the remedy, issues of pub- the clares importation, unlawful the sale for interest, lic bonding and parties from the importation, or sale within the United (cit- and interested non-parties.” J.A. 210 States after of articles that ing 24, 2011)). Fed.Reg. 52970-71 (Aug. infringe a valid and enforceable United In addition to considering the issue of patent. States An administrative law infringement, direct the Commission also (“ALJ”) judge construed certain terms of considered Suprema whether claim 19 of the patent '344 and then con- fringement of claim 19. The Commission’s ducted a thorough infringement analysis, comprehensive analysis a survey included expressly finding that each of the limita- law, of the relevant a summary the ALJ’s tions of practiced claim 19 was by the decision, an and extensive discussion products. accused See J.A. On 123-32. parties’ arguments. the basis of that finding, the ALJ deter- mined that Suprema scanners, several Regarding infringement, direct RealScan-10, RealScan-D, RealScan-10F, Commission found that record evidence RealScan-DF, and directly claim infringe demonstrated that already Mentalix had Federal Investigation's Integrated Bureau 2. A solely limited exclusion order is directed Fingerprint Supre- Identification Suprema imports standard. and does not affect im- ma importations Answer 13. portations Those scanning are not products manufac- relevant to the issue before us. by foreign tured other entities. and, therefore, likely that that it was the Unit- claim 19 within infringed directly cov- products would be Suprema’s scanner the initiation of prior ed States J.A. 224. patents. Match’s ered Cross infringe- Mentalix’s investigation. FedSub- integration of from its arose ment Supre- also that found Commission and scanners Suprema mit software knowl- deliberately acquiring avoided ma use of the com- kits, subsequent Among SDK other edge patent.3 of the '344 220. J.A. within the States. Supre- United bination Commission found things, the counsel, opinion to obtain ma failed infringe- of indirect to the Turning issue have patent the '344 would through which the ele- ment, examined the Commission since it was owned uncovered been an support inducement required to ments Match, have the search would Cross underlying direct in addition finding, analysis Suprema of whether included the Commis- particular, In infringement. 224. J.A. patents. Match infringed Cross knowledge the inducer’s considered sion found Accordingly, Commission The Com- patent regarding willfully itself to the had blinded Suprema knowledge explained mission “deliber- the '344 existence blind- showing of willful bymet prong from nature ately itself shielded Appli- (citing Global-Tech J.A. ness. actively encouraged activities it S.A., ances, 563 U.S. Inc. v. SEB to make.” J.A. Mentalix and facilitated 179 L.Ed.2d re- (2011)). laid out the The Commission and fa- encouragement to the active As (1) the blindness: for willful quirements requirement, cilitation high subjective belief defendant’s examples of confidential listed numerous (2) exists; and fact probability Suprema and efforts of the collaborative steps taking of deliberate defendant’s exhaus- Mentalix, noting the list was not (citing fact. Id. learning of that avoid extensive this 225. Based on tive. J.A. 2070). Global-Tech, that evidence, found the Commission Mentalix’s abetted Suprema aided and Suprema found that The Commission “ collaborating “with Mentalix by fringement infringing itself to ‘willfully blinded’ help adapt the scanners and import activities,” which of Mentalix’s nature to work FedSubmit software Mentalix’s actively encouraged.” J.A. “had Suprema and scanners imported Suprema’s evi- the relevant Though much of 221. pat- of the '344 claim 19 practice SDK cannot re- and is confidential dence Thus, the Commission J.A. 225. ent.” that here, the found Commission peated all the elements found that that high probability Suprema believed in The Commis- had been met. infringement patent. infringe the '344 scanners would determina- the ALJ’s initial sion modified instance, that found the Commission For to di- found that Mentalix was tion such attempts to in its was successful Suprema patent, the '344 infringe claim 19 of rectly by the covered various functions develop infringe- underlying direct establishing the 222. products. J.A. into its patent '344 found to induce ment, was Suprema and findings, the Com- these factual Based J.A. 233. of claim 19. infringement subjectively Suprema found that mission 337 was vio- determining Upon that Cross probability high in the believed ap- lated, considered technology patented was scanner Match’s publicly discuss. we do not dence evi- that finding on confidential was 3. The based propriate agreed by'the enforcement action. It importer at the inducement of the with the ALJ appropriate that the relief articles’ seller. The United Depart- States included a limited exclusion order covering ment of Justice and numerous Amici filed scanners, software, associated arguments briefs. Oral were heard on products and containing the same 5, February

were manufactured import- overseas or Mentalix,

ed or on Suprema behalf or II. Discussion any entity compa- affiliated with either United States trade laws long have af- ny. Thereupon, J.A. 235. the Commis- forded trade relief to domestic industries sion issued the limited exclusion order and from a of unfair range practices. trade investigation. terminated the The commercial effect of international Suprema and appealed Mentalix several trade acts practices major has been a court, findings Commission’s to this congressional founding concern since the including findings of direct and indi- of our In nation. passed second Act rect claim 19 of the '344 by the first United Congress, States patent. They requested further that the 1789, Tariff Act of Congress found that the Commission’s limited exclusion order be imposition imports of duties on was “nec- vacated. essary for ... the encouragement pro- tection of 4, Act July manufactures.” A divided panel of this court vacated the 1789, 1,1 24, ch. Stat. 24. Since findings that Mentalix di- vigilant has been both to encour- rectly infringed the '344 and that age protect U.S. domestic interests Suprema induced infringement of the '344 connection with commercial activity unfair patent. Suprema, Inc. v. Int’l Trade involving foreign imports, vigilance that Comm’n, (Fed.Cir.2013). 742 F.3d 1350 in 1922 led to passage of Section The majority reasoned Section 337’s ' predecessor of Section 337. See Tariff language, “articles infringe,” is a tem- Act 316(a), ch. Pub.L. No. poral requirement and that (1922). 42 Stat. 858 Section 316 must be measured at importa- the time of declared unlawful “unfair tion. methods of com- Id. at 1363. It concluded petition and unfair acts in the authority Commission lacks under Section of articles into the 337 to States.” issue an United Id. predicated exclusion order on im- because such ports are not in infringing an upon state Section the modern statutory sec- importation. Thus, Id. at 1357. the ma- tion, is codified at 19 U.S.C. 1337. As a

jority vacated all of the Commission’s in- statute, trade the purpose of Section 337 is fringement findings as to the '344 to regulate international commerce. Id. at and the limited exclusion order based on (explaining of Act purpose enacting findings. those Id. precursor to Section 337 regulate was “to

Cross Match countries”); and the commerce with peti- Commission foreign Pub.L. tioned for (1930)(same). en No. rehearing granted banc. We 46 Stat. petition to consider whether the Section necessarily Com- focuses on com- mission correctly concluded activity that unfair mercial to related cross-border trade acts by covered Section 337 include movement goods. e.g., of 19 U.S.C. importation 1337(a)(1)(B) of §§ articles used to infringe goods (imported infring- (im- (a)(1)(C) violation of this section tigate any alleged copyrights), or ing patents trademark), allegations of im- complaint,” including ported goods (cid:127) (a)(1)(D) infringing a goods (imported infringe. Id. porting articles (a)(1)(E) work), (imported goods 1337(b)(1). mask concluding the investi- After design rights). While fringing to “de- required the Commission is gation, prac- commercial domestic has addressed ... or not there is a termine whether statutory regimes, such various tices under 1337(c). If violation of this section.” Id. (35 (15 1-38), patent §§ U.S.C. as antitrust (a), it finds a violation under subsection (19 1-390), copyright U.S.C. §§ and U.S.C. (d) obligates subsection the Commission 1-1332), a distinct §§ it has established relief, involv- prospective typically fashion aimed at curb- regime in Section 337 legal directing that certain ing the Commission that involve the practices trade ing unfair entry from into the articles be excluded via into the market entry goods U.S., “unless, considering after the effect sum, an In Section 337 is importation. upon public health of such exclusion by Congress statute enacted enforcement welfare, conditions in the competitive entry goods, at the border the stop economy, production United States i.e., articles, in unfair that are involved directly competitive articles like or practices. trade States, and States consum- United United certain activities 337 declares ers, articles should not it finds that such to be unlawful trade importation related to 1337(d)(1). entry.” from Id. be excluded generally acts directs the Commission issue, statutory provisions Under relief if it has found grant prospective is not an ele- proof quantifiable harm have occurred. unlawful trade act to liability, monetary damages ment of (a) types of identifies several Subsection as relief. are not available unlawful, relates to one of which acts as goods are asked to decide whether We patent. Specifical- of a U.S. infringe” when the qualify as “articles provides: ly, the statute goods that such has found unlawful, (a)(1) are following ... [T]he used, directly importation, were after and when found the Commission at the inducement infringe by importer provided dealt with ... as exist shall be words, In other does goods’ seller. in this section: as an goods qualify of such importation If the 337? unfair trade act under Section (B) into the United importation has authori- yes, the Commission answer is States, or the importation, the sale for 1337(d)(1) an exclusion to issue ty under after within the United States sale occurring in from prevent this act order to owner, importer, the future. consignee, of articles that— n review, begin with our standard We (i) and enforceable infringe a valid deference, to the any, if is owed what a valid and patent or United States of Section interpretation Commission’s copyright United States enforceable Congress dispute There is no 337. 17 registered under title authority to the Commission delegated has if the 337 ambiguity Section

to resolve adju- formal through so added). does 1337(a)(1)(B)© (emphases § Sec- United States procedures. See to “inves- dicative directs the Commission tion 337 1346 218, 229, Corp.,

Mead 533 U.S. 121 ambiguous.” S.Ct. is language United 2164, (2001); S.A., 150 L.Ed.2d 292 305, 316, Kinik Co. v. States v. 555 U.S. Eurodif Comm’n, 1359, 878, (2009) (cit- Int’l Trade 362 F.3d 1363 129 L.Ed.2d 679 (Fed.Cir.2004) (“To Mead, 229-30, the extent that there is ing 533 U.S. at 121 S.Ct. any 2164). uncertainty or ambiguity the inter

pretation 1337(a)(l)(B)(ii), § of ... defer given ence must be to view of the Step A. Chevron One agency charged that is with its administra begins Chevron’s framework tion.”); Enercon GmbH v. Int’l Trade language of the statute. DIRECTV Comm’n, (Fed.Cir. 1376, 151 F.3d 1381-83 States, Grp., 1370, Inc. v. United 670 F.3d 1998). The Commission’s investigations (Fed.Cir.2012). below, explained As require Section 337 “adequate no phrase the shorthand “articles in tice, cross-examination, presentation of evi fringe” not unambiguously does exclude dence, motion, objection, argument, and all of post-importation inducement infringe rights other essential to a hearing,” fair ment. 210.36(d), C.F.R. satisfying thus Mead’s formality requirement. Accordingly, we By using the word “infringe,” Section

review the interpretation 271, refers to 35 U.S.C. the statuto Chevron, pursuant U.S.A., Inc. v. Natu ry provision defining patent infringement. Council, Inc., ral Resources Defense The word “infringe” does not narrow Sec U.S. 104 S.Ct. 81 L.Ed.2d 694 tion scope any 337’s particular subsec (1984). tions of 271. As reflected in 271 and the case law from before and after The Chevron framework is well-es “infringement” ais term that encompasses City FCC, tablished. Arlington, Tex. v. both direct and infringement, indirect in — — -, 133 S.Ct. cluding infringement by importation that L.Ed.2d-(2013) (explaining Chevron’s induces of a method formulation”). “now-canonical Chevron claim'. See 35 (remedy U.S.C. requires a reviewing court an agency’s infringement); Crystal Semiconductor construction of a statute which it adminis- Corp. Int’l, v. TriTech Microelectronics Chevron, ters to questions. answer two Inc., 1336 (Fed.Cir.2001). 467 U.S. 104 S.Ct. 2778. first just “whether 337 refers not directly spoken infringe- has ment, precise to the question but to that infringe.” at issue.” Id. If “articles That yes, ends, phrase the answer is inquiry then the does not narrow provision we give must effect Congress’ un- exclude of post-importation inducement ambiguous fringement. Rather, intent. Id. at the phrase intro- no, If the answer is duces uncertainty. Simply second textual put, the question is agency’s “whether the phrase answer infringe” “articles does precise question [to is based map issue] onto the Patent Act’s definition a permissible construction the stat- us, In its amicus brief to ute.” Id. at 104 S.Ct. 2778. The States United describes the disparity agency’s “interpretation governs in the ab- as one arising from the in rem language of of unambiguous statutory sence language Section and the personam contrary to the or unreasonable resolution of 271. See U.S. Amicus Br. 10-14.

1347 Suprema’s interpretation § 271 decide whether define portions The relevant See, might a reasonable resolution actions persons’ presented mapping dilemma textual 271(a) (“[WJhoever with- U.S.C. e.g., 35 onto 271. We cannot find Section 337 sell, makes, uses, offers to authority out view, Congress prescribed Suprema’s that infringes ... invention any patented sells an adopt and hence we cannot such inter- 271(b) (“Whoever actively patent.”); Step at Chevron One. Under pretation patent shall be infringement of a induces 271(a) (c), that §§ it is not articles 271(c) (“Whoev- infringer.”); an liable as infringe, infringe. but actions that component ... a to sell or sells er offers liable as ... shall be machine patented Moreover, that Suprema has not shown cannot in- An “article” infringer.”). an has a infringe” “articles that phrase §of 271. The any subsection fringe under usage prod- limited to clearly established of Section disparity between contributory or to direct or uct claims definitions of the Patent Act’s 337 and usage much less a that ex- infringement, uncertainty requir- presents infringement of a method cludes induced agency charged with resolution ing contrary, various forms of claim. To the has 337’s enforcement. Section in- to devices that shorthand references resolution, unambiguous provided used such fringe have often been without the induce- that excludes much less one therefore cannot meaning.4 narrowed We at issue here. ment Congress, using the Sec- conclude that unambigu- did so with an phrase, tion 337 that, because Section Suprema argues § 271. meaning applies for how it ous articles, bases refers to 337 come from infringement under Section 337 Citing present-tense use of the verb 271(a) (c), §§ which refer 35 U.S.C. in- phrase “articles that “infringe” compo “a invention” and “any patented fringe,” panel suggested machine, respectively. patented of a nent” post-im- 337 must exclude inducement Suprema’s argu atBr. 30-31. Appellant’s infringement because the acts portation inducement, recognize ment fails to all infringement have not complete contributory infringement, is common like importation. at the time of place taken provision on the of articles. See ly based It is true Suprema, 742 F.3d 1358. —Inc., USA, Sys., LLC v. Cisco Commit required for the direct 1920, U.S.-, Networks, 191 L.Ed.2d 883 ducement, Inc. v. Limelight see —Inc., -, (2015); Techs., Inc. v. Appliances, 134 Global-Tech Akamai 2060, 179 3, 52 S.A., 754, 131 2111, 2117 n. 189 L.Ed.2d S.Ct. & SEB 563 U.S. (2011). (2014), place taken Still, typically will not have we need not 1167 L.Ed.2d 1325, Inc., Inc., F.3d 1337- 550 Computer 746 Life, e.g., Quanta LLC v. Elekta Brain (Fed.Cir.2008); 1045, 1049, 1050-51, Corp. 42 Med. v. JMS 1059 DSU F.3d 1293, (Fed.Cir.2006); Co., (Fed.Cir.2014); 471 F.3d 1308-10 Integrations, Inc. v. Power Inc., 316 F.3d Int’l, Apotex Corp., v. 711 F.3d Warner-Lambert Co. Fairchild Semiconductor Delaware, 1348, (Fed.Cir.2003); 1348, (Fed.Cir.2013); 1365-66 RF LaserDynamics, Inc., 51, Inc., Technologies, Keystone 694 F.3d v. Pac. Computer, Inc. v. Quanta Inc. 1255, (Fed.Cir.2003); Hilgraeve 71, 78-79, 65, (Fed.Cir.2012); Fujitsu F.3d Ltd. 1336, (Fed. 265 F.3d Inc., Corp., Corp. Symantec 620 F.3d 1327-30 v. gear v. Net (Fed.Cir.2001); Water Techs. Cir.2010); n. 1343-44 Technologies, Inc. v. Gate Lucent 1309, 1320-23, Calco, Ltd., F.2d 666-68 Inc., Corp. v. way, (Fed.Cir.1988). (Fed.Cir.2009); Ricoh Co. at the time of that induces tions had to occur in the United States. 271(a) (1988). it. Yet we cannot conclude that 35 U.S.C. At least for unambiguously excluded such induced in- ordinary importations involving goods that fringement on panel’s the basis rea- enter the United States for a later use or soning. sale, none of the encompassed by activities 271(a) the former would have occurred (cid:127) For contributory infringement, as for United impor- States the time of inducement, direct is neces tation. If Congress meant forbid the sary and typically place will take later than Commission from looking past the time of the accused infringer’s indirect act. See importation in defining Section 337’s Mfg. Aro Co. v. Top Replace Convertible reach, Section 337 would not have reached Co., ment garden-variety even infringement. (1961). L.Ed.2d 592 panel recognized The 337(a)(l)(B)’s Even if Section clause cover- fairly Section 337 could reach contrib ing post-importation allowed sales assess- utory infringement. e.g., Suprema, ment importation, after 742 F.3d at n. 4. recognition As that Section 337 would not have covered the confirms, present-tense Section 337’s lan ordinary case of post-importation use with- guage susceptible is readily being read out post-importation sales. We cannot at- as satisfied the indirect infringer’s own tribute that result to Congress. acts, including importation that part inducement or contribution. See panel National The also reasoned that Section Indus., Co., Presto Inc. v. West Bend 76 337’s remedial provision allowing for an (Fed.Cir.1996) (induc F.3d 1194-96 exclusion order demonstrates Section ing act must occur after issues to 337’s “focus is on the' infringing nature of support liability; inducement enough the articles at the importation.” time of issuance); induced act occurs after Suprema, 742 F.3d at (emphasis 1358-59 added). Standard Nippon Oil v.Co. Shokubai Ka Section 337 refers to the Commis- Co., Ltd., gaku Kogyo authority sion’s an exclusion issue order (Fed.Cir.1985) (“[Liability against as of [arises] “the articles concerned.” Id. at the time the [inducing] 337(d)(1)). acts commit (quoting were Section pan- The ted, not at some future date determined el asserted that the “articles concerned” others.”) omitted). the acts of (emphasis be, course, “would the aforementioned ‘articles that ... infringe a valid and en- Reading the unambiguously statute patent.” forceable United States Id. require that infringement occur at 337(a)(1)(B)©). (quoting Section pan- time of importation produced would have interpreted el thus Section 337 subsections absurd pre-1994 results under the version (d)(1) (a)(1)(B)® referring to the 271(a). §of reading Such a would mean same “articles.” that Congress, when it enacted the lan- guage at issue in excluded even the panel’s reasoning a evidences mis- ordinary case of direct At understanding of enforcement statutes like (before 1994), 271(a) that time did not 337. The “articles” subsections (or (a) (d)(1) define importing patented invention are not the same. Subsec- invention) patented (a) the offer to sell tion defines unfair trade acts. When 271(a) infringing act. Section only covered the Commission determines that one of making, using, and selling, and those ac- these unfair occurred, trade acts has it fringement infringement, one kind of prevent future is injunctive relief provides accomplished by it is supplying and when according to subsection trade acts unfair article, supplied an the article can be an (d)(1). An exclusion order issued if infringes” require- “article that the other (d)(1) the arti- does not affect subsection Liability ments of inducement are met. act, unfair rise to the trade gave cles that predicated for inducement must be aon infringe.” Those e.g., the “articles finding of infringement. Limelight, already imported, have been articles at 2117. infringement 134 S.Ct. Yet direct entry into cannot be excluded from thus commonly occurs after inducement. Lia- Rather, injunctive like all forms of U.S. bility for inducement nevertheless attaches relief, prevents future an exclusion order inducing activity, as of the time of the occurring by, example, from illegal acts provided that direct eventu- entering articles from preventing similar Oil, ally occurs. Standard F.2d the U.S. interpretation rec- 348. ognizes necessary that the acts for induced we has Accordingly, hold infringement, including of direct in- acts directly goods quali- answered whether fringement, may simultaneously not occur infringe” when the fy as “articles cases, many In importation. at the time of importer has found that an Commission im- such acts cannot occur at the time of to di- goods, importation, used such after context, In that portation. Commis- at the inducement of the rectly infringe interpretation that Section 337 sion’s seller. goods’ authority prevent importation it grants part that have been of induce- of articles Step Two B. Chevron act ment as an unfair trade is consistent statutory phrase with the “articles not answer the Because Section 337 does infringe.” us, we consider precise question before interpretation

whether the Commission’s is also interpretation The Commission’s is reasonable. The Com- of Section 337 text of 337 as a consistent with the Section if it is a interpretation “prevails mission’s Holder, 132 at 2017 whole. See statute, construction of the reasonable (finding agency’s interpretation consis- inter- possible or not it is the whether text, reason- and thus tent statute’s might pretation or even the one a court able). in- contemplates that Section 337 think Holder v. Martinez Gutier- best.” importation. fringement may occur after - rez, -, U.S. as unlawful “the sale The statute defines (2012). For the reasons 182 L.Ed.2d 922 importation States after within United below, we find the Commission’s explained (i) infringe-” ... of articles that — 337(a)(1)(B)®. with the statuto- interpretation consistent thus distin- The statute text, legislative history importation ry policy, and the unfair trade act of guishes by defining as unfair from 337. We thus find the Commis- Section in- of an article that will importation reasonable. interpretation sion’s i.e., sold, importation.” fringe, “after 337(a)(l)(B)’s “sale ... after Id. Section Statutory 1. Text confirms that importation” language con- interpretation is post- The Commission’s permitted to focus text, identify comple- activity sistent with the for reasons tion of already suggested. we have Induced every type and authority to address History and broad Legislative Pub.L.

Statutory Policy practice. form of unfair trade See (1930). 46 Stat. 590 No. century of Nothing nearly broadly for action “provides is inconsistent with trade law enactments involving in cases ‘un- Tariff Commission leg- interpretation. the Commission’s unfair competition acts fair methods consistently Con- history evidences islative does not importation in of articles’ but the intent to vest Commission gressional a definite up those terms nor set define authority to reme- enforcement with broad Clemm, In 43 C.C.P.A. standard.” re Von dy trade acts. The United States unfair (1955). 56, 441, 443 When Con- (“Tariff Commission”), Tariff Commission “unfair methods of gress used the words Commission, was predecessor importa- in and unfair acts competition 64-271, Pub.L. No. 39 established 1916. articles,” is “broad tion of (1916). creation, a fun- 795 From its Stat. to, and not be limited and inclusive should of the Tariff Commis- purpose damental by, types of those technical definitions array of prevent was to a diverse sion added). 444 (emphasis of acts.” Id. at im- competition of in the unfair methods chal- portation goods.5 Recognizing nearly years, 35 the Commission For lenges posed by array the wide of unfair Congressional grant as has embraced its Congress empha- competition, methods of bestowing authority investigate and of the enforcement scope sized the broad based on take action under Section 337 Tariff powers granted to the Commission early as infringement. At least as Tariff Act. passed when it the 1922 With- 1980, making the Commission was deter- of the 1922 Tariff respect to Section 316 infringe a minations that inducement 337, Act, precursor to Section Con- 271(b) valid under 35 U.S.C. U.S. “provision that the relat- gress explained an unfair trade act under Sec- constituted ing competition methods unfair by an tion 337 that could be remedied “broad goods,” was E.g., Surveying order. Certain exclusion enough prevent every type and form Devices, 337-TA-68, Inv. No. Pub. USITC 67-595, No. practice....” S.Rep. unfair 1980) (Commission (July Determina- (1922) added). (emphasis tion). persisted The Commission has interpretation present of Section 337 to the 1930, Congress In Tariff Act su- consistency 337, day.6 sup- The Commission’s but perseded Section 316 with Section ports interpreta- the reasonableness of its did not alter the Tariff Commission’s 337-TA-661, Same, competition Inv. No. Containing 5. Unfair methods of have includ- (Oct.2011), subsidies, safeguards, Pub. Initial Determi- dumping, ed anticém- USITC 42, 6017982, (Jan. 2011 WL at *85 petitive practices, nation and violations of intellectu- 22, 2010); Certain Automated Mechanical property rights, involving al all the cross- i.e., See, Sys. Medium-Duty goods, border movement of articles. Transmission for 935-36, Thereof, (1922). Components Heavy-Duty Trucks e.g., 42 Stat. 337-TA-503, (Aug. Pub. 3934 No. USITC Inv. See, 154, 2007), 6. e.g., Inkjet Cartridges 2007 WL Certain Ink Initial Determination at 4473082, 7, 2005); (Jan. Inv. No. Thereof, Components at *101 Print-heads Certain 337-TA-723, (Feb.2013),. USITC Pub. 4373 Systems Logic and Com- Hardware Emulation 10, 337-TA-383, 3489151, (June 2011) 2011 WL at *49 No. USITC Thereof, Inv. ponents (Initial Determination); (Jan.1999), Comm'n Notice at Pub. 3154 Certain Semiconduc- 179, 6, 1998), (Mar. Determination at Initial Chips Having Synchronous Dynamic tor Ran- 31, 1997); (July 1997 WL at *101 Memory dom Access Controllers and Prods. Capoto injury industry ex rel. ant must show to domestic e.g., Astrue v. tion. — B.N.C., -, before a violation is found. Omnibus (2012) (noting 182 L.Ed.2d Competitiveness Trade and Act of interpretation was agency’s reasonable (1988) Pub.L. No. 102 Stat. 1107 many “adhered to without deviation (codified 337(a)(2)-(3)). at Section As a decades”). effort, part this the 1988 Act inserted phrase infringe.” “articles that Id.

Congress upset has not the Commis- purpose declared its to enhance interpretation consistent of Section sion’s Indeed, Congress authority.7 introduced the cur- Commission The “fundamental statutory language in after the rent purpose” of the 1988 amendment was to adopted interpreta- had this “strengthen the effectiveness of section 6, supra. Congress tion. See note acted against “importation 337” of articles agency against backdrop of consistent infringe which property U.S. intellectual judicial interpretation emphasizing 100-40, 1, rights.” No. H.R.Rep. pt. at authority. breadth of Commission’s (1987); 155 see H.R.Rep. also No. Clemm, See, 229 F.2d at 443-44 e.g., Von (1988) 112 (Congressional finding (the power remedy acts of Commission’s to the amendments to Section 337 “make it a inclu- competition unfair is “broad and remedy protection more effective for the Co., 149, sive”); 22 In re C.C.P.A. Orion property United States intellectual (Section (1934) 458, pro- 71 467 337’s F.2d rights”). The interpretation Commission’s competition hibition on “unfair methods of Congress’ longstanding, is consistent with in goods is broad policy, broad broadening pur- every type enough prevent and form of pose in 1988. No. 67- practice”) (quoting S.Rep. unfair (1922)). 595, no at 3 There is indication consistently This court has affirmed the 1988, Congress, in meant to contract Commission’s determination that a viola- authority regarding pat- the Commission’s may tion of Section 337 arise from an act infringement. contrary, ent To Con- e.g., Young of induced gress expanding said it was Comm’n, 721 Eng’rs Inc. v. Int’l Trade authority. (Fed.Cir.1983) (affirming F.2d 1305 Sec- contributory tion 337 violation based on

Congress amended Section 337 removing requirement complain- infringement process pat- that a and induced property rights among Certain Molded-In Sandwich Panel Inserts and tion of intellectual are Installation, Methods TA-99, Their No. 337- competitive Inv. advanced and in the most 1982), (May world; USITC Pub. 1246 (2) existing protection under 9, 1982), Op. (Apr. Comm’n at 8 sub against aff'd section 337 of the Tariff Act of 1930 nom., Young Eng’rs, Inc. v. Int’l Trade practices unfair trade is cumbersome and Comm’n, (Fed.Cir.1983). F.2d We 721 1305 costly provided and has not United States here, provide, por note that we small property rights with owners of intellectual infringe tion of the Commission’s induced adequate protection against foreign compa- they ment determinations to show were violating rights. nies such throughout past years. made A more 35 (b) purpose part PURPOSE.-—The of this is to comprehensive list of the Commission’s in amend section 337 of the Tariff Act of 1930 duced determinations under Suprema, remedy pro- can Section 337 be found it a effective for the make more at 1372 F.3d n. 2. property tection of United States intellectual rights.” § 1211-1212. 102 Stat. "(a) Congress FINDINGS.—The finds that— (1) persons rely protec- United States

ents); Vizio, Comm’n, See, e.g., Sec’y of Dep’t Inc. v. Int’l Trade Beck v. Health & (Fed.Cir.2010) Servs., (Fed. Human (affirming 605 F.3d 1330 Cir.1991) (“Our duty in is limited to inter Section 337 violation based on induced claim); preting the statute as it was enact fringement of 'method Emcore .”). Comm’n, adopted ed... The Commission a rea v. Int’l Trade 449 Fed. Corp. (Fed.Cir.2011) interpretation sonable under it. with Appx. (affirming opinion out Section 337 violation based on that our We note deference to the Com claim). apparatus interpretation mission’s this case, Prior to this none of our reviews of hardly case is momentous. The court has the Commission’s determinations have Commission, consistently deferred to the questioned authority recognizing the Commission’s technical ex investigate and find violation of Section pertise deciding arising issues predicated on an act in of induced a statute has en fringement. agency trusted the E.g., administer. Comm’n, Corp. Farr el v. Int’l Trade interpretation adopted by The technical (Fed.Cir.1991), F.2d superseded panel weakens the Commission’s over- statute, 1337(c); Enercon, 19 U.S.C. ability all unfair prevent trade acts in- 151 F.3d at 1381-83. We have concluded volving infringement patent. of a U.S. on several occasions that may the court panel’s interpretation of Section 337 interpretation not substitute its own of the would eliminate relief for a distinct unfair agency’s statute for the reasonable inter trade act and induced See, pretation. e.g., Wheatland Tube Co. curtailing There is no basis for the Com- States, United F.3d 1360-61 gap-filling authority way. mission’s in that (Fed.Cir.2007); Corning Glass Works v. Indeed, the practical consequence would Comm’n, Int’l Trade F.2d open foreign be an invitation to entities (Fed.Cir.1986). routinely We have de (which might for various reasons not be agency’s interpre ferred to the reasonable subject injunction) to a district court Enercon, tation e.g., of Section 337. by importing circumvent Section 337 arti- (affirming 151 F.3d at 1383 the Commis requiring cles a state post-importation interpretation sion’s of the term “sale for or combination modification before direct reasonable); importation” in Section 337 as infringement could be shown. Kinik, (deferring 362 F.3d at 1363 to Com reasonably The Commission determined interpretation interplay mission’s interpretation would further the 271(g)); between Section 337 and 35 U.S.C. purpose of the Mayo statute. See Found. Tech, High San Huan New Materials Inc. Med. Educ. & Research v. United for Comm’n, v. Int’l Trade States, 562 U.S. (Fed.Cir.1998) (affirming Commis (2011) (purpose L.Ed.2d 588 aof statute is interpretation sion’s reasonable Two). Step relevant to Chevron 337(f)(2)). legal regime enacted a for enforcement against by directing unfair trade acts Conclusion Commission to base Section 337 relief on goods and the issuance of exclusion orders interpre- We hold that the Commission’s importation. to bar their Absent unconsti phrase tation that “articles that in- tutionality, regime. we must defer to that fringe” goods by covers that were used an imported Suprema mean all scanners directly infringe post-importa- importer to Mentalix, regardless inducement of how those as a result of seller’s scanners tion appeal We remand the Supp.App. is reasonable. were later used. 400502. The proceedings further original panel for theory Suprema was that in- opinion. consistent with this post-importation duced Mentalix’s

infringement of claim 19. The Commis- might sion concedes “Customs DYK, dissenting. Judge, Circuit ship- able to determine whether future fully join Judge O’Malley’s I dis- While Supreme presented ments of scanners sent, separately emphasize I write 271(b),” entry infringe claim 19 under prior between this case and Sec- difference on a finding but relies some of the at the International Trade tion 337 cases imported ultimately scanners will be used (“Commission”), how directly infringe Mentalix to enter in- theory of starkly the Corn-mission’s excluding imported by order all scanners own infringement differs from its duced Suprema or Mentalix. ITC Br. 59. past practice. government prior contends that in fin- (“Suprema”) imports Inc. Suprema, commission decisions it has relied on an customers in gerprint scanners to several theory, and that this case inducement States, Mentalix, Inc. including the United ground. govern- new But plows no (“Mentalix”). Technologies, Match Cross prior argument, ment conceded oral dispute Inc. does not the Commission’s cases, arti- staple the Commission banned finding Suprema’s “scanners and cles for on an inducement the- kit, or are development “SDK”] [software ory only inducing in circumstances where capable non-infringing of substantial use.” alongside an imported instructions were importation, 229. At the time of J.A. ultimately directly used to article that was directly infringe scanners neither nor infringe in the States. The Com- United infringement of method claim 19 of duce im- theory mission’s was that all of the 7,203,344, Patent No. the sole remain- U.S. infringed inducing because ported articles Instead, ing appeal. claim in this these importa- included in the instructions were ultimately staple may may articles or not correctly Judge O’Malley’s tion. dissent 19, depending infringe be used to claim majority vast of these points out the are upon they whether and how combined distinguish- cases are prior Commission domestically software after developed with the taking government’s able. But even importation into the United States. description prior of those cases at face value, finding there was no such Limited Exclusion The Commission’s imported alongside the scan- structions fingerprint all scan- Order here excluded Instead, re- here.1 the Commission by Suprema or Mentalix ners imported ners 19,” solely Suprema’s alleged ... claim to lied intent to infringe interpreted “that infringe- ship that induced majority 1. The notes that the scanners contained instructions explains “with an instruction manual claim nor even mentioned the ment of programs can be written to take advan- how analysis. inducement See instructions in the tage functionality.” Maj. Op. of scanner ("The well J.A. 212 SDKs include manuals as that is not the same as instructions 1342. But ('dlls’) dynamic link that include as libraries directed to of method claim operate various features of the functions that judge the administrative law nor neither scanners.”). fingerprint accused the Commission found that these manuals induce, citing Suprema biguously provide evidence that col- fails the Commission authority majority endows on integrate with Mentalix to Men- with laborated it, I dissent. respectfully Suprema’s talix’s software with scanners into the imported the articles were after majority justifies The its decision on two United States. (1) grounds: policy regarding concerns where, protect desire United States It a far different matter as (2) competition; holders from unfair here, any from the separate inducement is agency’s view deference to Executive importation, imported and the articles as regulating of how best to fulfill its role in ultimately may may not be used commerce”. But we are not “international directly infringe a method claim when policy con- appropriate audience for post-importation. combined with software except charged cerns to the extent we are notion that it can nev- enforcing policy with articulated in the all of the scanners im- ertheless exclude actually scheme ported by Suprema because the Exclusion adopted. Congress provides us with When importer certify Order allows instructions, clear we are to follow those staple certain of the articles will not ulti- regardless of our policy instructions own mately infringe be used to reads the stat- Chevron, preferences. Deference under exactly ute The statute covers backwards. U.S.A., Inc. v. Natural Resources Defense infringe,” “articles 19 U.S.C. that — Council, Inc., U.S. 1337(a)(1)(B), not allow the does (1984), 81 L.Ed.2d 694 is not to be used as an Commission to enter exclusion order statutory interpretation. a substitute for articles, subject directed to all of the even when, here, especially This is true ultimately may those that never be used to interpretation proffered agency infringe, theory that on the some of the Lynch, “makes scant sense.” Mellouli v. may articles be used in an man- — -, after importation. ner (2015). L.Ed.2d 60 us, may expand Like the Executive O’MALLEY, Judge, dissenting, Circuit powers the limited afforded to it Con- PROST, Judge, whom Chief gress guise under the of “deference”. At DYK, join. Judges, LOURIE and Circuit invitation, the Executive’s majority today authorizes the Inter- ambiguity strains to find the statute (“Commis- national Trade none, just may it where there is so resort sion”) importation to bar the of articles of Al- protective umbrella of Chevron. may may or commerce not be later majority says though the it is concerned by a parties infringe used method importers taking advantage about of an third patent, only putative based on the intent of statute, gap any gaps in the apparent And, importer. it does so in circum- by Congress, by should be filled us or in it undisputed stances which is patent the Commission. The holder here patented practiced method cannot be un- protected patent is well under the laws— imported ability only entity less the article is used combi- having stop nation with software neither embedded in practicing patented doing method from imported by article nor sold the im- in an action in district court under 35 so 271(a), ability § porter. Because 19 U.S.C. 1337 unam- U.S.C. and the to seek (A) damages any importer acting from with Unfair methods of competition entity intent to induce to so act. and unfair acts in importation We ... not rewrite the trade out of a articles into the should laws United States ... remedy. desire to enhance that (B) importation The into the United

States, the sale for importation, or the sale within the United States after I. The LANGUAGE OF THE STATUTE owner, by the importer, analysis scope Our of 1337 must or consignee, articles that— begin language with the of the statute. (i) infringe a valid and enforceable Jacobson, Hughes Co. v. 525 U.S. Aircraft United States ... L.Ed.2d 881 (1999) (“As in any statutory case of con- (ii) made, are produced, processed, struction, analysis begins our lan- under, of, or mined or means a (internal guage of the statute.” quotation process covered claims of omitted)) marks The Commission is itself a valid and enforceable United States statute, creature of authority and its patent. issue an exclusion order must emanate key language is “articles that —in- from a statutory grant power. See fringe.” Because the majority finds this Kyocera Corp. Wireless v. Int’l Trade ambiguous, to be it concludes Comm’n, (Fed.Cir. that we must defer to the Commission’s 2008). Under the familiar framework of interpretation. Maj. Op. at 1346-48. The Chevron, notes, as the correctly majority fails, however, to identify an actu- we defer agency’s to the construction ambiguity al in the statute. The word of the statute if the in question statute is “articles” is not ambiguous a well- has—it ambiguous. If “Congress directly has spo- legal defined definition. See Black’s Law precise question issue,” ken to the our (7th ed.1990) Dictionary 160 (defining “ar- end”; “inquiry at an we are to “give ticle” “[generally, particular item or effect to the unambiguously expressed in- see, thing”); e.g., Quicken also Freeman v. Chevron, Congress'.” tent of — Loans, Inc., U.S.-, 842-43, Here, 104 S.Ct. 2778. Congress— (2012) (looking 182 L.Ed.2d 955 panel not the explic- decision this case— dictionary definitions to define the “nor- itly liability chose to exclude term). usage” mal of a aof method And, physical object. word connotes a directly all, claim that is not infringed, if at “infringe” itself has defined in 35 until after importation. We therefore do 271(a) e.g., U.S.C. 271. 35 U.S.C. not afford the Commission’s construction (“[W]hoever makes, authority without any deference. uses, sell, offers to any patented sells 1337(a), part, invention, relevant states within the United or im- States that: ports into any patented the United States during invention the term of (1) (2), Subject paragraph to the follow- therefor, infringes patent.”). unlawful, ing are and when found with, Commission to exist shall be dealt surrounding We thus turn to the statu- in any law, addition to other provision of tory text to determine what forms of provided as in § this section: fringement support outlined in 271 liabil-

1356 1337(a)(l)(B)(i).1 See, of the statute —that e.g., reading § ity — tied, just object, but to States, U.S.-, physical is to Yates v. United importation. Carr v. Unit- the date of L.Ed.2d 64 S.Ct. Cf. States, 438, 462, S.Ct. ed 560 U.S. (“Whether statutory unambigu- term is (2010) (Alito, J., 2229, 176 L.Ed.2d 1152 however, ous, solely not turn on dic- does present dissenting) (“Congress’s use of component of its words. tionary definitions tense, and the unambiguous, is Rather, of ambiguity or plainness ‘[t]he be the end of language accordingly should statutory language [not is determined matter.”). itself, language only] by reference to in by] specific context as well [but exceptions importation-cen- to this used, is

which 1337(a)(l)(B)(i) §in specified tric rule are of statute as a context broader 1337(a)(l)(B)(ii). § within sale “[T]he ” (quoting Robinson v. Shell Oil whole.’ Id. in importation” States after the United Co., 519 U.S. 1337(a)(l)(B)(i) § raises considerations (1997))). Congress specifical- L.Ed.2d 808 conduct, Congress but post-importation 1337(a)(l)(B)(i) ly “importa- § limits to the “sale”, to which specifically limited this States, for tion into the the sale United long to have apply does not methods. We or the sale within the United importation, 271(a) § infringe- held that “use” in covers objects It importation....” after is States NTP, v. Re- ment of method claims. Inc. sold, not methods. imported which are Motion, Ltd., F.3d search in correctly ascertained As the Commission (Fed.Cir.2005) (“Congress has consis- Image in Electronic Devices with Certain tently expressed the view that it under- Thereof, Processing Systems, Components infringement of method claims un- stands Software, Inv. No. and Associated USITC use.”). 271(a) der section to be limited 337-TA-724, 3246515, at *12-13 2012 WL in appears But “use” nowhere (Dec. 2011) (Final), moreover, its focus 1337(a)(1)(B)®. expect We Con- point must be on the under the statute speaks precise terms when defin- gress patented gener- methods importation, and liability, and the absence of “use” ing directly until their ally infringed are not 1337(a)(1)(B)® conspicuous. highly importation. use in the United States after 1337(a)(l)(B)(ii) expressly covers “importation Both into the United States” using in- importation products made importation” identify for and “sale importation. fringing processes prior to 1337(a)(1)(B)(ii) the cornerstone of point The need to include Indeed, liability. present the use of tense intend Congress demonstrates that did not 1337(a)(1)(B)® beyond i.e. “im- to extend statutory language, verbs in the methods, “sale”, intangible supports tangible a natural “articles” portation” parlance, Suprema and common without reference 1. The asserts that failed "clearly usage” that— “clearly usage" established of "articles demonstrate a established infringe.” with infringe” product See Certain Electronic Devices "articles “limited to that — Components Processing Systems, There- contributory infringe- Image claims or to direct or Software, of, Inv. No. Maj. Op. plain and Associated USITC ment." at 1347-48. The lan- 337-TA-724, 3246515, at *12-13 necessary 2012 WL guage of the statute is all that is Indeed, 21, 2011). (Dec. phraseology in our meaning. Loose the Commis- determine change prior opinions the words scope “articles does not sion itself has limited the explicitly infringe” regard infringe- chose to direct that' — claims, 1337(a)(l)(B)(i). relying on die statute ment of method particularly infringement importer where future of Oil may or customer later com- plete steps such methods is uncertain at the time of of a method claim post-impor- tation, importation. Congress necessary identified the situ- predicate 1337(a)(1)(B)© § our missing ations where focus should is are no .leave —there “articles point importation, majority infringe” and the errs because there is that — no infringement. Although grafting language importer’s in “use” into the specific intent to cause appear. may statute where it not does (a exist at the time of importation point sense; practical This makes there is no Suprema here), contests the “articles that- patentee actual harm to a until an infring- infringe” do not. The Commission would use, ing only and that harm occurs after power have the to institute an exclusion importation for method claims such as the 271(b) if, § order under at the time of ones at in appeal. espe- issue this This is importation, there was evidence of both cially true for staple goods Suprema’s like specific intent and the existence of an scanners, where a broad assertion of the article that directly itself infringed. power prevent could non- e.g., Kyocera, 545 F.3d at 1346. But in infringing goods entering country from situation, the Commission could also on the basis of what a may customer do justify the exclusion order on the basis of with that item once it enters U.S. territo- 271(a). § described, however, As we have ry. purview Such considerations are the opposite is true— courts, of the district and fall outside the 1337(a)(1)(B)© § not permit does statutory jurisdiction limited of the Com- Commission to institute an exclusion order mission. 271(b) § solely on when there no direct infringement at importation.2 the time of Commission and the in- rely stead on an theory inducement under not, did either 271(b). § But Supreme as the Court re- 1337(a)(1)(B)© § §or grant the Com- us, cently reminded “our case law leaves power mission the to issue an exclusion no doubt inducement liability may order on the basis of importer’s intent ‘if, if, arise but ... [there is] to induce possible infringement after im- Networks, infringement/” Limelight Inc. portation. If Congress sought had — Techs., Inc., U.S.-, v. Akamai 134 grant power the Commission the to issue (2014) 189 L.Ed.2d 52 an exclusion order based on importer’s (quoting Mfg. Aro Top Co. Convertible intent to cause direct infringement at a Co., Replacement 365 U.S. time, later it would have said so. Con- (1961)). 5 L.Ed.2d 592 Evidence of gress could have used similar to direct infringement all steps claimed the “unfair competition methods of —that performed of the method have been 1337(a)(1)(A), § unfair acts” language of —is predicate finding for a of inducement lia- broadly sweeping in such an intent to 271(b). bility under When the Instead, Commis- duce Con- attempts sion to enforce an exclusion order gress prohibited defined acts related to 1337(a)(l)(B)(i) 1337(a)(1)(B)® grounds Thus, Int'l, Inc., though (Fed.Cir. even this court has used the electronics 246 F.3d 1336 "infringement” 2001)), generically term usage describe does not somehow alter any Maj. Op. (citing interpret acts under "infringe” how we should within Crystal Corp. Semiconductor v. TriTech Micro- context scheme of 1337.

1358 1,n. us, at 1341-42 Maj. Op. before issue that does approach categorical a through case. not the that is post-importa- of possibility include the not claims. Om- method infringement of tion unambig- is of the statute The Act of Competitiveness & Trade nibus un- power lacks the uous—the Commission 100-418, I, tit. 102 Stat. 1988, Pub.L. No. 1337(a)(l)(B)(i) an exclusion to enter § der impute liberty are not a infringement 1211-12. We of on the basis order Congress underlying that the direct claim when to the Commission method power post-importation. occurs grant. did not lia- By permitting indirect MajoRity’s II. The Constkuction when point the bility and the appellees, majority, the The infringement, the no has been there 1337(a)(l)(B)(i) § differ- read government it be- policy where majority crafts patent nature that the in rem They argue ently. abuse. ripe for loophole is a lieves there personam in Act and the of the Tariff Supreme As the Maj. at 1351-52. Op. See inherently Act are of the Patent nature however, us, recently reminded Court Be- Op. at 1346-48. incompatible. Maj. liability for not create courts should “[t]he and not cause, only person, they say, non-infringing conduct inducement majority reasons article, infringe, can elected not extend Congress has where 1337(a)(l)(B)(i) §of the combination that 134 S.Ct. at Limelight, concept.” that necessarily ambiguous, and § 271 is moreover, later, As discussed defer to the Commis- must therefore we an al- possibility creates majority the Tariff interpretation of reasoned sion’s unnec- at least type of abuse—or ternative Maj. Op. at 1346-47. Act under Chevron.3 history con- the Commission essary majority confusion. As also focuses The made statements are enforced at the Tariff Act and cedes, orders its exclusion record, arguing that Thus, legislative agents. border Customs ratified a Tariff Act to the amendment deciding charged are agents Customs application of pre-amendment consistent may later be used some scanners which 271(b) claims under to method § man- in an customers Suprema 1337(a)(l)(B)(i). justifi- of these Neither § those, and, for which customers ner as to compelling. cations is in- improper with an has acted Suprema Thus, tent to induce Ambiguity A. The Lack in its majority states first although the ambiguity majority’s presumed going customers footnote scanners 1337(a)(1)(B)© § the combination are not relevant than Mentalix other 1337(a)(l)(B)(i). Op. Maj. at 1346 argue use of not that the does 3. The phrase put, 'articles ("Simply 1337(a)(l)(B)(i) is so funda "articles” Act's map the Patent fringe’ not onto does unantic mentally creates such incorrect or purported This infringement.”). definition of absurdity trigger doc ipated results as to inconsistency prove that not does Kirby, 7 e.g., Wall. United States trine. interpretative decision to leave intended L.Ed. 74 U.S. Commission, merely it demonstrates to the (1868). appears to majority instead con- to include such congressional intent 1337(a)(l)(B)(i) ambiguous arguing 1337(a)(l)(B)(i). scope §of under the duct appli because the particular Corp., in this situation Tobacco & FDA v. Brown Williamson 271(b) post-importation con cation of (2000). analogue L.Ed.2d 121 provide for a clean does not duct 271(b) sell, merely seems to be a means to to selling] any patented inven- the end to which it arrives —resort to tion.” The “patented invention” of 271(a) step § Chevron We should not read stat- equivalent is the to the “article” 1337(a)(1)(B)®. an ambiguity light § utes to create of clear In the one situation statements, congressional even if that re- where analogy this breaks down—method may sult parties lead to what some consid- claims—the Commission not has said that normatively er a more fair result. inexorably statute is ambiguous, it has e.g., Thompson/Center United States v. 1337(a)(1)(B)® instead § concluded that Co., 505, 524, Arms U.S. S.Ct. does apply not to post-importation conduct (1992) (White, J, 119 L.Ed.2d 308 infringes that method claims. Certain (“To dissenting) Devices, conclude otherwise is to Electronic 2012 WL ‘ingenuity 271(c) resort ambiguity’ And, § *12. create ties contributory in- that simply does not exist in fringement this statute.” to conduct involving “a compo- States, (quoting Rothschild v. United patented machine, nent of a manufacture, 45 L.Ed. 277 combination or composition.” Similar to (1900))); Bryan 271(a), § Antonin Scalia & A. “component” this is the equiva- cf. n § (2012) (“Hence Garner, Reading § Law 27 1337(a)(1)(B)®. lent to the “article” in justification there can be no for needlessly 271(b) Section has no analogue. similar rendering provisions in conflict if they can infringement Induced focuses on conduct (hereinaf- interpreted harmoniously.”) tied to infringer, another not to an “arti Garner). ter Scalia & cle,” invention,” “patented “component.” or 1337(a)(l)(B)(i) 271(b) (“Whoever Section speaks § in terms See 35 U.S.C. actively infringe.” “articles The majority induces infringement patent of a shall be that — says that this naturally is not how we infringer.”). liable as an have clarified We infringement that, § refer to 271—that in an infringement induced analysis, normally we think in person terms of a or we focus on the conduct of the inducer and entity doing infringing. not the article itself. Corp. See DSU Med. Co., (Fed.Cir. that “disparity” requires claims this that v. JMS 471 F.3d 2006) Commission, court, (en banc) (“[Inducement and not our resolve requires “uncertainty.” Maj. Op. conduct, at 1346^47. culpable evidence of directed to argument newly encouraging asserted infringement, another’s not This — government in proceeding— merely this en banc that the inducer had knowledge of logical grounding. lacks Although activities.”); it is the direct infringer’s War people who are liable for un- Apotex ner-Lambert Corp., Co. law, (Fed.Cir.2003) (“To

der it underlying is the article or succeed [on methods are the focus of an infringe- theory of induced infringement], plain analysis. ment It is to aspects prove tiff must the defendants’ actions manufactured, sold, articles that are they acts and that knew offered for sale or methods that are or should have known their actions would (internal element-by-element “used” that an com- actual infringement.” quo induce omitted)). parison with claims is made. tation marks and alterations Multiple §of Any subsections 271 tie conduct consideration of the “article” in an directly to an article. For example, analysis inducement comes part 271(a) defines requisite as conduct direct infringement under 271(a). involving above, the “makfing], us[ing], offering] As discussed the Com- however, majority, ignores concluded that already has mission 1337(a)(1)(B)® 1337(a)(l)(B)(i) liability explicitly considers the premise does impor to in- within the United States after conduct found “sale post-importation tation,” claim. which means fringe a method garden-variety would “have reached even spoke in terms The fact that through that occurs infringement” “infringers” of “articles” instead infringing sales within the United States. 1337(a)(l)(B)(i) not evidence that Con also amended Maj. Op. Congress at 1348. implicitly to sought confused or gress was § by adding 271(g) § in to cover 271 1988 what an “article— the decision of delegate an article made a importation of infringes” that is to the Commission. infringement. process as an act of patented , —U.S.-, 135 S.Ct. King v. Burwell Foreign Competitive Trade & Omnibus (2015) (ex 2480, 2488-89, 192 L.Ed.2d 483 1988, 100-418, Act of Pub.L. No. ness nonchalantly plaining we should that And, 9003, the domestic § 102 Stat. 1107. interpretation for agency’s to an defer recourse, without as it industry was not “deep political of economic and questions 1337(a)(1)(A) § to invoke as could still seek (internal omitted)). citation significance” it done before the 1988 Amendments had It, instead, Congress’s indicates determi because, majority’s interpreta under the decision-making that nation Customs’s tion, been those articles would not have tangible be tied to a the border should under infringe” “articles that — intangible an object i.e., an “article”—not — 1337(a)(1)(B)®. § The 1994 Amendments i.e., importer’s intent. consideration — 271, part legislation § neces as may required Although the Commission sary Uruguay to effectuate the Round importer’s to consider the intent Uruguay Agreements Round Agreements, analysis, corollary it will be as a to a Act, 103-466, P.L. No. 108 Stat 4809 point at the finding infringement of direct (1994), Congress recog that demonstrate 1337(a)(l)(B)(i), § importation. of Under clearly tying in importance of nized from the direct intent cannot be divorced fringement point importation, to the Limelight, See 134 S.Ct. at strengthening power both the of the dis 271(b) § (explaining separating 2118 explicitly. trict and the courts 271(a) require § “would the courts to from majority’s if the “absurd result” the Even develop parallel infringement two bodies of true, moreover, ory we would still be were liability infringe for direct law: one required give language effect to the ment, liability and one for for induce Congress chose 1988 describe ment.”). majority continues to “fun im power current to control damentally what it means misunderstand[ ] See, e.g., ports point importation. at the Id. at 2117. infringe patent.” a method INS, 514 115 S.Ct. Stone v. (1995) (“When 1537, 131 L.Ed.2d 465 Con unambig- counters that an statute, presume a we gress acts to amend require construction of the statute “to uous amendment to have real and it intends its occur at the time of Lomb, effect.”); Inc. substantial Bausch & produce “absurd re- importation” would (Fed. States, 1363, 148 F.3d 1367 v. United pre-1994 version of sults under Cir.1998) (“A 271(a) change in the of a 271(a),” because, § pre-1994, § did generally import statute is construed to importing patented not define invention Maj. change meaning....”). act. at 1348. Op. as an “It is ... our task to determine the or an “unfair act.” e.g., Frischer & 1337(a)(1)(B)® reading” § correct in Co. v. Bakelite Corp., 494, 17 C.C.P.A. 271, (1930). 247, § light of and we F.2d pass cannot this Congress reenacted § § task to the 337 in Executive Branch where the Tariff Act Con- of 1930. Pub.L. Burwell, No. gress is unambiguous. 46 Stat. (1930). 703-04 Similar

at 2489. provided the Commis- “[ujnfair stated that methods of competi- sion with clear instructions: the Commis- tion and unfair acts in importation may sion bar the any arti- articles into the United ... States cles could be found to be infringing or tendency effect is to destroy which Patent Act at the impor- time of substantially injure industry ...” were See 19 U.S.C. 1337(a)(1)(B)®. tation. Id.; Co., see also In re Orion unlawful. Claims of predicated (1934) (ex- C.C.P.A. potential completion steps of all of a plaining 316 of the Tariff Act of method claim importing after the’ article do 1922 “was the prototype of section 337 of not requirement meet this plain under the 1930, the Tariff is, Act of substance, and in language of the statute. There is no need same”). the Unsurprisingly, predeces- our rely to on the interpretation sor court held prohibition that the on “un- in of light the clear language in fair of competition” method[s] or “unfair 1337(a)(1)(B)®. § §in act[s]” 337 also applied patent to Orion, fringement. 71 F.2d at 464-65. Legislative B. History Section 337 largely remained unchanged Failing to find a clear statement in the 1988, until Congress when substantively language of the statute that support would amended the Tariff Act to present its interpretation 1337(a)(1)(B)®, § their of form. Omnibus Foreign Compet- Trade & the majority relies on own reading of 1988, itiveness Act of 100-418, Pub.L. No. legislative the history. Maj. Op. at 1349- § 102 Stat. 1107. In Act, 1342 of the 52. Putting aside the extent to Congress § which amended split 337 to the anal- rebanee on legislative ysis statements in of “unfair histo- of competition methods and ry § have unfair acts.” 1337(a)(1)(A), limited value Under engaging when an exclusion order statutory interpretation, general based on unfair history the of the methods of competition and unfair Tariff Act does acts support not the majority’s required finding of substantial injury to expansive interpretation of industry, the Acts, as in 1922 and 1930 1337(a)(1)(B)®. 1337(a)(1)(B), but under an exclusion or- 1916, From its inception the Commis- predicated der on the importation of “arti- sion administered a predecessor to modern cles infringe” no longer required a that — § 1337. Section 316 of the 1922 Tariff Act showing injury substantial to the indus- declared that “unfair methods of competi- Id. try. Thus, 102 Stat. at 1212. tion and unfair acts in importation Congress in 1988 explicitly created a limit- articles into the United States ... exception ed for imports pat- violated effect or tendency of destroy which is to rights by ent removing requirement substantially injure an industry ...” were proving a injury substantial to the domes- (1922). unlawful. Ch. 42 Stat. industry. tic But it did not remove the presumably This patent infringe- included focus on “articles” present that was in the ment as an “unfair competition” Acts; method of 1922 and 1930 it reinforced it. to intended were the 1988 Amendments rely government and the patent “strengthen” the enforcement very general statements heavily on

too at Trade Br. of Int’l Comm’n rights. Act history 1988 when legislative (1987)). S.Rep. No. at (citing somehow meant Congress they claim however, statements, imply do These to to authorize in that Act 1337(a)(1)(B) Congress intended inju- any possible orders on exclusion base infringement at cover claims of industry. particular, In ry to domestic requisite importation when the time why, if there explain had majority fails until occur would not re- practice a consistent Commission been occur might never after solely predicated orders garding exclusion all. they an to induce on intent injury claim, change Rather, by removing substantive the domestic 1337(a)(1)(B) based the domestic for exclusion orders removing requirement was Congress eliminated infringement, patent Maj. Op. at Con- injury requirement, costly” “cumbersome one of the most infringe” gress adopted “articles that — order— seeking exclusion aspects Corp., Reiter v. Sonotone moniker. injury to the domestic proof of substantial L.Ed.2d Thus, all industry. 102 Stat. 1211-12. (1979) (“In we statute are construing majority and to which the the statements effect, every if possible, obliged give the need to regarding government point used.”). word of domestic strengthen protection point majority government and the of the sub- to the elimination rights point dis- Amendments portion a of the 1988 to industry re- injury to domestic stantial fact-findings sup- congressional cussing conclu- they justify not the quirement; do Congress in- argument port of their that imbue the Congress intended to sion that 1337(a)(1)(B) maintain a that tended authority to do what- the Commission with & n. Maj. Op. 1351-52 7 scope. at broad the broadest provide it will ever thinks as “consistent (referring language to this of its regardless protections patentees, policy, legis- longstanding broad the Congress’ statutory charge. with Statements not be to create purpose”). history Section lative should used broadening its with statute, es- already in an clear Act, “Findings”, ambiguity of the 1988 titled history that is as legislative not pecially existing protection under states that “the majority by the relied on vague that ... of 1930 of the Tariff Act section 337 Navy, 562 Dep’t here. See Milner pro- has not costly and and cumbersome L.Ed.2d of intellectual States owners vided United (2011) (“We opposite not take the will protec- adequate property rights his- ambiguous legislative allowing tack of And, ...” 102 at 1211-12. the tion. Stat. statutory language”). muddy clear tory to in the majority references statements pat- strengthened power the Congress purpose that Reports explaining House not rights, assert their ent holders to strengthen amendments of the 1988 was removing proce- a but expanding it more Act and make effective. the Tariff 1337(a). dural hurdle (citing H.R.Rep. No. Maj. Op. at 1351-52 (1987) 100-40, H.R.Rep. No. at 155 Practice C. Historical Commission (1988)). Similarly, at 112 also majority government and the from the Sen- cites government legislative assert support argument that Report, ate history supports interpretation by dem- product, and induced in onstrating Congress’s intent to continue an fringement on the basis of importer practice by unbroken the Commission of providing “training and assistance to [] predicating exclusion orders on acts of customers in the use of the inserts in infringement. Maj. duced Op. at 1349- 51. accordance patented with the methods.” Specifically, it “Congress states that has In re Certain Molded-in Sandwich Panel upset the Commission’s consistent in- Inserts and Methods Their Installa for terpretation Maj. of Section Op. 337.” at tion, USITC 337-TA-99, Inv. No. 1351. There has been no interpretation of U.S.P.Q. 832, *5, 1982 WL (April § 337 that mirrors that adopted by the 9, 1982), aff'd, Young Eng’rs, 721 F.2d at majority however, today, certainly 1317. The Commission also concluded nothing so clear that should be inserts issue not staple were charged with jumping stop it. The justified goods, and the exclusion order on cases the support cites to finding of contributory infringement. sweeping statements it about the makes Id. We affirmed those findings without practices Commission’s unbroken do not analysis of the jus Commission’s power weight placed Indeed, bear the on them. tify exclusion solely orders on a finding of government conceded as much at oral Young Eng’rs, 721 argument. Argument See Oral at 1:12- F.2d at 1317. Young Engineers does not 1:13, Suprema, Inc. v. International Trade evidence that we have “consistently af Comm’n, (en banc), No. 12-1170 available firmed the determination at http://oralarguments.eafc.uscourts.gov/ violation of Section may arise default. aspx?fi=2012-1170_252015.mp3. from an act infringement.” of induced Maj. Op. best, at 1351. At Young Engi The majority single cites a pre-1988 Bakelite, neers and see supra case in note support of its “consistency theory”: stand Young premise uncontroversial Engineers, Inc. v. U.S. Interna- (1) Commission, Commission can tional Trade exclude either: ar 721 F.2d 1305 (Fed.Cir.1983).4 ticles made using patented a Young Engineers method did not over (2) involve an pre-importation; exclusion seas predicated order or non-staple ex- clusively on a finding goods imported infringe- induced into the United States on ment. The Commission finding issued an exclu- the basis of a of direct and induced order sion both because of finding infringement. a situation, either In a Cus direct infringement due to the importation agent toms is required not to divine the government 4. The heavily relies 1337(a)(l)(B)(ii). 507; on Frischer & Id. at see also In Co. v. Corp., Bakelite 17 C.C.P.A. 39 F.2d Orion, re (finding F.2d at 466-67 that the (1930), to establish that the Commission import products produced using infringing previously had based exclusion orders on in- methods abroad could be considered an un- infringement. duced e.g., Br. of Int'l competition fair method of act unfair un- Trade Comm'n 32. Bakelite does 1930). der the Tariff simply Act Bakelite claims, government stand for what the proposition does not stand for the that an however. The exclusion order in Bakelite was exclusion order can be issued the on basis of predicated finding on a imported the induced infringement underlying where the articles "prepared were and manufactured in infringement direct of a method claim occurs conformity” patented with the methods before importation, might being imported, not occur at all. which is consistent the after Unsurprisingly, prohibition goods later-enacted produced majority on the not even does using patented prior importation methods attempt rely to to on Bakelite. Limelight, 134 infringement. be if there induced determine intent to importer’s direct downstream potential abe would infringement ei- The direct any pre- simply no evidence There is already prior ther occurred equivalent practice (and statutorily covered is Even if actions here. the Commission’s could 1387(a)(l)(B)(ii)) good itself or the were ever congressional silence reliance on manner. non-infringing used in not be statu- premise which to strong upon reed a con- establishing cry far from This is a majority cannot the tory interpretation,5 of which practice agency sistent desire to purported rely Congress’s aware have been necessarily would agency practice past a consistent continue Maj. Op. majority proclaims. the as when statutory construction its bolster at 1349-51. practice was agency only the consistent § 337 to assert agency’s the failure Shokubai Nippon Oil Co. Standard staple goods based importers of against (Fed.Cir. Co., F.2d 345 Kogyo Kagaku intent to induce solely on the In 1985) analysis. this alter does not post-importation. claims of method Oil, peri- the analyzed when we

Standard run for claims begin to for laches od would of the at the time infringement: induced Practice D. Modern Commission at the time infringement or direct no bet- provides post-1988 case law Our conclud- at 348-49. We

inducing act. Id. interpreta- support majority’s ter for recovery laches barred because ed that which Although it is unclear cases tion. prior existed intent to induce specific view, supports believes laches, though six-year period even govern- passing, two it cites infringement oc- subsequent they argue points to two cases ment period. Id. Stan- during laches curred reliance on the Commission’s demonstrate a rule not annunciate dard Oil does Alloc, 271(b) Inc. order: in an exclusion time of at the occurs Commission, 342 Trade v. International —we act, Maj. Op. at 1349 inducing see (Fed.Cir.2003), Kyocera F.3d 1361 that, infringe- once the direct instead held Trade Corp. v. International Wireless occurs, liability for induced ment (Fed.Cir.2008). Commission, 545 F.3d 1340 inducing back fringement traced n. at 33 8. But Int’l Trade Comm’n Br. of Indus., Inc. Id.; Presto Nat’l act. see also if to determine required us case neither (mere- Co., 1185, 1196 v. W. Bend. solely predicated could order exclusion be a direct there must ly holding that infringement. intent to induce on an 271(b) liability under infringement for Alloc, no in- found exist). alters the In in Oil Nothing Standard indirect, direct or fringement, be an either that there must requirement fact or af- and we flooring products, imported there to infringement for underlying direct that, just that —si- narily, 'Congress' silence recognized Supreme has 5. Court here, Airlines, lence.”) present con- (quoting not Inc. v. absent Alaska circumstances best, is, 1476, tenuous 678, 686, gressional Brock, silence 107 S.Ct. 94 480 U.S. particular justify a ground upon which to (1987)); Agen- v. Trans. Johnson 661 L.Ed.2d Cmty. Creative See construction. 1442, 672, 616, S.Ct. 94 cy, 107 U.S. 480 Reid, 109 U.S. 490 Non-Violence v. J., (Scalia, (1987) dissenting). 615 L.Ed.2d (1989) ("Ordi- 2166, L.Ed.2d 811 104 firmed that 1337(a)(1)(B)® determination. 342 F.3d at that would include in- 1366-68, 1375. construing After duced infringement of method claims for issue, claims at agreed we with the Com- potential post-importation direct infringe- mission that there was no evidence di- Alloc, ment. Similar to there was no chal- rect Id. at As for lenge 1373. to the Commission’s authority re- induced infringement, we noted garding infringement induced allegations; allegation basis for the of inducement was we assumed without deciding that an ex- installation instructions included clusion order could predicated be on a packaging at the time importation. Id. finding of induced infringement under at 1373-74. In a short 1337(a)(1)(B)®. of in- discussion Kyocera, 545 F.3d at infringement, duced we 1353-54; found “no reason see also ERBE Elektromedizin to disturb the judge’s administrative con- GmbH v. Comm., Int’l Trade clusion on inducement” specifically 1028, (Fed.Cir.2009) because (affirming Com- “the judge administrative found no evi- mission’s determination of no direct in- dence of direct infringement.” Id. at 1374. fringement, and therefore concluding there Alloc does not approval demonstrate our of was “no basis for finding induced or con- the Commission’s use of infringe- induced tributory infringement,” without analyzing ment justify the exclusion order in the Commission’s authority under here, however; circumstances 1337(a)(1)(B)® our silence to enter an exclusion or- there nearly was not deafening as the der due to induced infringement). Our government believes. That did case discussion of induced infringement in- involve uncertainty as to infringe- future volved a short statement remanding the ment, and there was no challenge to the case to the Commission to perform the authority regarding induce- correct analysis 271 after we had best, ment claims. At we merely over- specific altered the analysis intent in DSU. looked this analysis, issue our and “I Kyocera, see 545 F.3d at Importantly, why no reason should consciously [we] our appellate Kyocera review in did not wrong today because [we were] uncon- allegations involve predicat- inducement sciously wrong yesterday.” potential Massachu- ed on post-importation direct in- States, 611, setts v. United 639- fringement. See In the Matter Certain (1948) (Jack- 92 L.Ed. 968 Baseband Chips Processor Chipsets, son, J., Vizio, dissenting); (Radio) F.3d at Transmitter Receiver Chips, & cf. (declining analyze the Commis- Power Chips, Control & Products Con- sion’s authority base an Same, exclusion order taining USITC Inv. No. 337-TA- on induced “[appel- (Oct. because WL at *74 lants do not challenge 2006) the Commission’s (finding Qualcomm “induces finding of infringement”); see Maj. also fringement apparatus claims” of (“Prior Op. at case, to this none of 6,714,983, U.S. Patent No. but our reviews of the Commission’s determi- “Broadcom not proved Qualcomm has questioned nations have the Commission’s the method claims authority to investigate and find a violation of patent”). the '983 predicated of Section 337 on an act of contrary, To the Kyocera involved the induced infringement.”). importation of wireless devices were Kyocera fails provide any also to sup- programmed operate to an port for an interpretation of prior manner being imported. to Id. at

1366 theory of on the basis of staple goods only ex- Commission (noting that the of meth- infringement inducement of direct who manufacturers from cluded devices to this prior post-importation claims Qualcomm od incorporated and “purchase[d] appeal. wireless devices their mobile chips into States, im- and then the United outside for Customs not intend Congress did for into the United States them

ported importer’s decipher to agents to need sale”). on relied Although Commission at later infringement some intent to induce theory for an induced instead, It, such an unwork- date. avoided claims, im- apparatus fringement by requiring the Commis- construct able at the directly infringed articles ported orders based on the exclusion sion issue They quin- were the importation. time of Pri- article itself. infringing nature of the infringe.” “articles tessential that — or practice, pre- either or Commission contrary to a support lends no post-1988, panel dissent to the Judge Reyna, in his legis- need not reach the Though we view. a series of Commis highlighted opinion, practice history past or Commission lative involving exclusion allegedly sion decisions duty saying what the law our perform intent to induce direct based on an orders statutory language, I unambiguous for Suprema, importation. after “evidence” Comm., 1350, any of the am unconvinced Trade Inc. v. Int’l a fair majority relies alters (Fed.Cir.2013). upon which the majority, The 1372 n. majority of that a reading those cases well, rely appears agreed to: “arti- Maj. by reference. houses incorporation both through Indeed, I believe it infringe.” (listing examples n. cles at 1350-51 Op. and. that — reading that the to the supports unambiguous of the dissent referencing footnote decision). in that lan- Kyocera majority But like and Al- found panel panel loc, a determi these involved guage. none of cases that the by this court Commission

nation an exclusion authority to base had Equitable E. Considerations finding of an intent to solely on a order holding is majority’s crux of the In later possible induce industry’s concern that the cases, equity, and the fact, the Commis in each of these might leave language of the statute contributory plain in found sion also direct infringers. porous hospitable border importation.6 time of fringement at the 1344, See, But Maj. Op. 1351-52. practice e.g. a Commission None demonstrate to Con- that concern is addressed majority’s interpreta best with the consistent Commission, we are inter- who chose the words gress, government, tion. majority minimizes— today. The point preting unable to and remain already avail- ignores power excluding or any example of —both 337-TA-503, No. Thereof, Inv. Components Chips e.g., Hav- Certain Semiconductor 4473082, 3758, WL at *98- Pub. USITC Synchronous Dynamic Random Access ing 1, 2007) (also finding direct in- (Aug. Containing Memory and Prods. Controllers 337-TA-661, importation); point fringement at Same, Certain USITC Inv. No. Pub. (Jan. Systems and Com- Logic at *80-84 Hardware Emulation 2011 WL 337-TA-383, 2010) (also Inv. No. Thereof, contributory USITC finding ponents direct *63-88, (July WL 92-99 point importation); Certain infringement at 1997) (also contributory finding Sys. Mechanical Transmission Automated point importation). infringement at Heavy-Duty Medium-Duty Trucks and impor- power and the an solely to the Commission issue exclusion order able the very source of relief for the factual scenario tance of the other limited envi- allegations sioned of industry: district courts. domestic here— fringement of a method claim based on majority’s the strained Behind potential post-importation direct infringe- any construc- interpretation is a belief ment. This interpretation open would not 1337(a)(l)(B)(i) § that reduces the tion of porous a border for all kinds nefarious authority exclu- Commission’s to institute worst, At actors. it would limit the Com- negate flexibility sion orders would ability mission’s to address a situation that remediating built into the Tariff Act for prior has never arisen to the present ap- industry. against harms the domestic See peal. recency Our bias should not force us (“There Maj. is for Op. no basis depart from our traditional role statu- curtailing gap-filling au- Commission’s tory interpretation due to concerns that way.”). thority The may may not present ever themselves that, language of claims under the broad again. certainly It should not serve as Act, the Tariff the Commission must have justification to abdicate to the Executive necessary authority halt importation authority interpretation all over infringing goods'in all potentially even 1337(a)(l)(B)(i). Congress’s order to effectuate intent give This desire to the Commission free 1337(a)(l)(B)(i). enacting Id. The amici rein to prevent potential highlights abuses that, in highlight also combination with the a more fundamental Poncern with the ma- Commission’s decision not to entertain jority’s approach. The Commission is a complaints of direct of meth- statute, powers creature of nar- 271(a), od claims under Certain Elec- rowly by Congress. Kyocera, defined Devices, tronic at *12- WL F.3d at 1355. The Commission is also 13, the dissent’s construction would render entirely at the whim of the President largely to stop Commission toothless (through the Repre- United States Trade patents. e.g., of method sentative), who can choose to set aside an Prop. Amicus Br. of Intellectual Owners order it exclusion before is enforced. 19 at 4. Ass’n 1337(j)(2). U.S.C. The Commission is These concerns are overstated. There subject Ex- therefore to the control of the is little evidence' that the Commission Branch, though ecutive even the Commis- impotent to stop importers. would be such nominally independent agency sion is plain language of the statute would politi- with three commissioners from each from prevent predicat- cal party appointed by that are the Presi- on, ing example, an exclusion order upon dent advice and consent of non-staple item. This construction also Congress strictly defines pow- Senate. not prevent would the Commission from Commission, ers of the the President but directly excluding goods infringe at powers has veto over the Commission’s point importation. The Commission It power assertions rich practice excluding has a historical ar- within this framework that we must goods, such that—-in- “articles dently guard Congress’s power to establish fringe” language does not diminish the power “say the law and what our.own Madison, power. Marbury the law is.” 5 U.S. (1 Crunch) (1803). statute denies the Commission the 2 L.Ed. 60 however, majority, easily portation infringement: The too de- direct district injunc- can interpretation. fers to the Com-mission’s courts. District courts enter that By concluding ambigu- preventing the statute is tions downstream customers ous, Execu- the article in an using infringing emboldens the from (“The § expense tive at the of both and manner. 35 U.S.C. several jurisdiction long having this court. As as we defer to the courts of cases under injunctions § in interpretation may grant Commission’s of this title accor- may change interpretation principles equity pre- that when dance with changes. any right Administration The value and vent the violation of secured ....”). And, importance in unlike stare decisis the Commis- sion, interpretation is undue re- court could damages weakened district award § Hosp. sort to Chevron. Good for such acts of inducement. Id. Samaritan Shalala, 508 U.S. The is an Commission alternative to dis- (1993) (“[T]he 2151, 124 L.Ed.2d 368 con- trict courts that acts to supplement the sistency agency’s of an position is factor courts, powers of district not a substitute assessing weight position that is for district courts when the district court due.”). longer no Commission be- remedy is not as convenient a forum or the statute,” comes a “creature of but instead sought Indeed, more difficult to obtain. making, a creature of its own ever- previously, as noted the Commission itself expanding hydra sprout new ar- can pow- has determined it does not have authority interpreta- eas of with each new allegations er over of direct infringement tion. point of method importa- claims majority nominally Devices, defers to the tion. Certain Electronic it Commission because finds that the stat- WL *12-13. This does not ambiguous heard, ute is due to the interplay allegations of mean those can never be 271(b), 1337 and even though they just the lan- must be addressed before a dis- guage Maj. here, 1337 is clear on its face. Similarly trict court. 1337(a)(1)(B)® atOp. majority agrees 1345-48. But the grant does not the Com- in part power Commission because it mission to address assertions of in- believes the interpretation duced of method claims prevent will the narrow set of abuses de- based on post-importation infringe- direct Maj. Op. forever, scribed above. at 1351-52. The ment. Those claims are not lost industry they just should address its concerns with must be asserted district potential holes in the to Congress, statute court. not the By or the courts. Commission Finally, majority’s interpretation of choosing purported to fix the mistake 1337(a)(1)(B)® is not the catholicon it by Congress

made in using “articles that— purports Although permit to be. it will role, infringe”, majority oversteps premise the Commission to exclusion or- and at the same time weakens ders on claims of induced Congress. post-importation based on threats of

Finally, forget infringement, grant we must not that there is it will also the Com- provide a forum that can an appropriate power up staple goods. mission the to hold remedy allegations infringe- By premising power of induced Customs’s to exclude based, post-im- ment of method goods importer’s alleged claims on the intent for used, may goods goods power how the to issue an exclu- solely finding sion order based on a and non- can be used both of a method claim entry infringing ways likely will be denied and potential post-importation direct they be perception based on the could fringement. ambiguous Neither state- claim, infringe especially used to a method legislative from the history ments nor given to considering the broad deference vague prior and non-determinative Com- agent’s decision-making Customs the mission statements detract from this anal- e.g., border. Amicus Br. of Dell at ysis. majority’s attempt The to shoehorn (citing generally given the deference 1337(a)(1)(B)® the of into a agents enforcing Customs an exclusion interpretation strained of the statute un- order, pres- such as the one issued the guise deferring der the of to the Commis- border). case, goods If those ent the interpretation may sion’s prevent some ultimately infringing in an are not used potential patent system, rare abuses of our manner, acting be the Commission would but majority opens the also Pandora’s Box. beyond powers under the Tariff Act. majority The original panel refers But that determination cannot be made interpretation as a “technical interpreta- until absent goods imported, have been tion,” Maj. Op. at but it should more non-staple are goods evidence appropriately interpretation be coined “the goods are intended to items or by Congress.” system mandated Our of infringing in an manner. A used separation powers guarantees of that Con- certification statement will importer gress interpret enacts the laws and we problem any not solve this because evi- those laws. The harms here both goods dence that a customer uses the Congress’s of these aims: it diminishes later, if unexpect- manner even power scope to define the of the Commis- ed, trigger justi- would concerns that could authority, permits sion’s and it the Execu- subject' im- fy an exclusion order or say tive Branch to what the law is. For porter to the threat severe sanctions. reasons, I respectfully these dissent from weighing competing concerns creat- majority’s interpretation majority’s ed construction demon- 1337(a)(1)(B)®. why it Congress, strates and not our Commission, certainly court and not the in the position

which is best to determine powers. Congress has determination, limiting made those COUNTY, FLORIDA, BAY powers infringe.” to “articles That that — Plaintiff-Appellee may industry, decision make the domestic court, and some members this uncom-

fortable, STATES, but that is a debate best left for Defendant- UNITED government Appellant. the branch of our that should be most amicable to the concerns of indus- No. 2014-5149. try: Congress. Appeals, United States Court

Federal Circuit.

III. CONCLUSION Aug. 1337(a)(1)(B)® plain language grant reveals that did not

Case Details

Case Name: Suprema, Inc. v. International Trade Commission

Court Name: Court of Appeals for the Federal Circuit

Date Published: Aug 10, 2015

Citation: 796 F.3d 1338

Docket Number: 2012-1170

Court Abbreviation: Fed. Cir.